case_text: Mr Seymour submitted that the reasoning of the tribunal as set out in paragraph 37 and the first sentence of paragraph 38 of its reasons (see [29]) demonstrated that the tribunal had failed in its statutory task of assessing the subjective and objective circumstances of Mr Seymour's offending behaviour in the way explained by the High Court in A Solicitor v Law Society (NSW) [2004] HCA 1 ; (2004) 216 CLR 253 at 267-268 [19] - [22] . That submission was based on characterizing the tribunal's reasoning that Mr Seymour's history of having been struck off as a solicitor in 1982, having given the undertaking to the Supreme Court that he would not in future act or purport to act as a solicitor in 1994 and his 2004 conviction and sentence for contempt were facts which ' alone would be sufficient to render [Mr Seymour] not a fit and proper person whether the contempt was criminal or civil ' (see [38] of the tribunal's reasons). 41 The Authority submitted that the tribunal had been referring in this passage of its reasoning to the earlier findings which it had set out recounting the nature of the proceedings leading up to Buddin J's decision and his Honour's findings in that decision, including matters that were set out in the decision but not necessarily referred to directly in the tribunal's reasons. The Authority said that there was a number of freestanding findings by the tribunal each of which would justify its ultimate conclusion, first, the findings which I have just set out, secondly, the findings relating to Mr Seymour's change of position as to whether contempt was a criminal offence depending on whether he was before the Court of Appeal or the tribunal (see [26]-[31] of the tribunal's reasons [26] above). Thus the Authority argued that even if the tribunal had been wrong to take account of the balance of material referred to in [38] of its reasons, having concluded that by reference to the matters in [37] alone, Mr Seymour was not a fit and proper person, that was a finding of fact on the merits in respect of which there was no error of law. 135 And, the tribunal's reasons show that it did examine 'the whole position': A Solicitor v Law Society (NSW) [2004] HCA 1 ; (2004) 216 CLR 253 at 266 [18] . Despite Mr Seymour's submissions, I am not satisfied that the tribunal made any error of law in approaching its task of making an evaluation of the particular facts and circumstances before it concerning him and in making its decision as to its satisfaction under s 290(1). The tribunal considered the detailed subjective and objective circumstances of Mr Seymour's offending behaviour (cf: 216 CLR at 268 [22]) in the context of the whole of its reasons, before expressing its conclusion at [37]-[38]. The tribunal is not obliged to set out every detail of its reasoning process ( Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437 at 449 [54] per Gummow and Heydon JJ, Gleeson CJ agreeing at 438 [1] applying Commissioner for Australilan Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592. There Northrop, Miles and French JJ held that a decision-maker could rely on an obvious and natural evaluation of admitted facts to decide that an applicant was not a fit and proper person). 141 It was open to the tribunal to have regard to Mr Seymour not explaining why he consented to injunctions 12 years after his striking off that he would not act as a solicitor. Again, it was open to the tribunal to see this lack of explanation, in combination with the other matters it took into account in [37]-[38] as revelatory of integrity and of fitness and propriety, just as in In Re Davis (1947) 75 CLR 407; and see too A Solicitor v Law Society (NSW) [2004] HCA 1 ; (2004) 216 CLR 253 at 267-268 [20] - [21] . Moreover, the underlying facts of the 1994 injunction were relevant. The tribunal had earlier found ([13]) that Mr Seymour was vague when asked to recount them.


case_outcome: referred to

case_text: Although their Honours referred to the 'common law of Australia', that law derives its unity through the role of the High Court under s 73 of the Constitution which enables that Court to harmonize differences in the earlier common laws of the various States by establishing common principles (see e.g. Mabo v Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1 at 29-30 per Brennan J; ACCC v CG Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51 at 71 [38] per Gummow and Hayne JJ; Blunden v The Commonwealth [2003] HCA 73 ; (2003) 218 CLR 330 at 349 [59] per Kirby J). Nonetheless, the source of that 'common law of Australia' in relation to the inherent power of the Supreme Court of New South Wales to punish for contempt of court can only be the common law of that State, because, as the Native Title Case (1995) 183 CLR at 487 held, the Commonwealth itself has no such source.


case_text: While in centuries gone by it may have been legally possible to imprison people who owed but had not paid debts, imprisonment in Australia today can only occur where a person is sentenced to a term by a court pursuant to law, be it a statute or the unwritten law, or is remanded (or held for a very limited time before he or she must be brought before a court or a justice of the peace: cf: Williams v The Queen [1987] HCA 36 ; (1986) 161 CLR 278) in custody as incident of the administration of the criminal law so as to be available at his or her trial. Administrative detention is not imprisonment ( Al-Kateb v Godwin [2004] HCA 37 ; (2004) 219 CLR 562) and some statutes can authorize preventative detention after a term of imprisonment has been served (cf: Fardon v Attorney-General (Qld) [2004] HCA 46 ; (2004) 210 ALR 50, 78 ALJR 1519; Baker v The Queen [2004] HCA 45 ; (2004) 210 ALR 1, 78 ALJR 1483; Kable v DPP (NSW) [1996] HCA 24 ; (1996) 189 CLR 51). As Salmon LJ remarked in Jennison v Baker [1972] 2 QB 52 at 61G, of the distinction between 'civil' and 'criminal' contempt: 'I think that, at any rate today, this is an unhelpful and almost meaningless classification.' see too per John Laws (then junior counsel to the Treasury) in: Current Problems in the Law of Contempt (1990) 43 Current Legal Prolems 99 at 101, 102 quoted in Aldridge Eady & Smith on Contempt (3 rd ed) at [3-48].


case_text: The Tribunal then proceeded to consider whether the proceedings before Buddin J could be described as having resulted in a conviction for a criminal offence. It referred to a number of authorities to which I will have to refer in due course, including Attorney General (NSW) v Whiley (1993) 31 NSWLR 314; Whitham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 and Australasian Meat Industry Employees' Union v Mudginberri Pty Limited [1986] HCA 46 ; (1986) 161 CLR 98. The Tribunal concluded that there was no doubt that proceedings before Buddin J had been brought with the purpose of punishing Mr Seymour noting that it had been common ground, as Buddin J recorded in his reasons, that the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied and that the penalty imposed had been one of imprisonment for a fixed term, as opposed to an indefinite term until the contempt of being purged. The tribunal then said: '24. Therefore whilst not free from doubt, I accept for current purposes that the contempt proceedings before Buddin J were criminal. 25. The result of that finding has application to both subparagraphs 5.2 and 5.4 of the Respondent's Statement of Facts and Contentions.' 35 The Authority submitted that the reasoning in Re Colina; Ex parte Torney [1999] HCA 57 ; (1999) 200 CLR 386, did not affect the construction of s 312(1)(e) despite the fact that this might mean that similar wording in that section would create different results were the contempt alleged one that had been determined in a court established under Ch III of the Constitution . This result was supported because it was said that a law of a State could include that State's common law and its statute law, including ss 22 and 23 of the Supreme Court Act 1970 (NSW) and the fact that in Attorney General v Whitley (1993) 31 NSWLR 314 at 320A-D, to which Buddin J had referred, it appeared that the finding of guilt in effect of the charge of contempt was a conviction of the criminal offence. 88 The tribunal referred (at [16]) to Buddin J's reference ([2004] NSWSC 493 [12] to Attorney-General (NSW) v Whiley (1993) 31 NSWLR 314 at 320B-C where Clarke, Meagher and Handley JJA said that a conviction for contempt was a conviction for an offence which is criminal in nature. However, the Court of Appeal was dealing with a case in which the contempts alleged were, if proved, 'criminal' on any view because they amounted to interferences in the course of justice by improperly attempting to influence a judicial officer hearing a matter and bringing improper pressure to bear on a party to that matter. 89 The Court of Appeal there held (31 NSWLR at 321C-D) that the provisions of the Sentencing Act 1989 (NSW) applied to a conviction for contempt. Mr Seymour argued that such a conviction cannot become spent under Pt VIIC of the Crimes Act 1914 (Cth) within the meaning of s 290(2)(c) of the Act. However, the conviction is either of a criminal offence or it is not, whatever the provisions of Pt VIIC may provide. 90 Under s 85ZM(2)(b) of the Crimes Act 1914 (Cth), a conviction for an offence is spent at the end of 10 years after conviction if a person is not sentenced to imprisonment at all or if the sentence is for less than 30 months. In s 85ZL 'State law' is defined as meaning '... a law in force in a State (other than a Commonwealth law)' and 'State offence' as meaning '... an offence against a State law'. In contrast, in s 85ZL , 'Commonwealth law' is defined by reference to an Act, an instrument or other legislation. I am of opinion that the definition of 'State law' is intended to include the unwritten law of the States and Territories as well as written laws.


case_text: Aldridge, Eady & Smith on Contempt (3 rd ed) at [3-91] suggest that notwithstanding the views of those who advocate abandoning the distinction between 'civil' and 'criminal' contempt, over the course of years many practical distinctions have occurred which would require explanation were this course to be followed. I do not think this is a sufficient justification. A convicted contemnor's rights of appeal could be protected, quickly, by amending legislation (cp the introduction and amendment of s 101A of the Supreme Court Act 1970 (NSW) where the Attorney-General of that State is given the right to refer to the Court of Appeal questions of law arising out of an acquittal on a charge of contempt: see: Attorney-General (NSW) v X [2000] NSWCA 199 ; (2000) 49 NSWLR 653 and John Fairfax Publications Pty Ltd v Attorney-General (NSW) [2000] NSWCA 198 ; (2000) 181 ALR 694; 158 FLR 81).


case_text: Nowadays, all charges of contempt are invariably heard by a judge or a full court sitting on a summary trial. The procedure for trial by jury of such a charge or indictment has fallen into desuetude ( Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588 at 595A-D per Street CJ, Hope, Glass, Samuels and Priestly JJA; In re Lonrho Plc [1990] 2 AC 154 at 177B-C; Re Colina; Ex parte Torney [1999] HCA 57 ; (1999) 200 CLR 386 at 393-394 [12] ; Borrie & Lowe: The Law of Contempt (3 rd ed) p 469). In Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 707C-E McHugh JA referred to Rex v Tibbits [1902] 1 KB 77 as the last reported case in England of a trial for contempt on indictment and he said there had not been such a trial in New South Wales in the twentieth century. 72 The current mode of proceeding for criminal contempt by the summary procedure is the product of historical development. Whatever procedure be employed to prosecute a charge of criminal contempt, in my opinion, cannot change the essential nature of that charge from being a criminal charge. As McHugh JA pointed out in Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 707E-708E, the overwhelming preference has been in recent times to use the summary procedure and its utilization need not be justified, unlike attempts in the past to do so. As he said (6 NSWLR at 707E) '... the summary procedure is a departure from the ordinary course of law for criminal proceedings' . But that procedure does not change the character or incidents of criminal contempt from being at common law a criminal offence. Lord Russell of Killowen CJ explained the then state of the law in Reg v Gray [1900] 2 QB 36 at 40-41 saying that the summary jurisdiction was '... not a new-fangled jurisdiction; it is a jurisdiction as old as the common law itself, of which it forms part' . But his Lordship pointed out at that time it was exercised '... only when the case is clear and beyond reasonable doubt' and where that feature were not present he said that the courts left it to the Attorney-General to decide whether to proceed by criminal information; i.e. indictment: see R v Hull (1989) 16 NSWLR 385. The reporter noted in Reg v Gray [1900] 2 QB at 43 that the procedure then used was to issue an order on the Crown side of the Queen's Bench Division directing the accused to appear and show cause why he or she should not be committed for contempt as laid out in affidavits: see Onslow's and Whalley's Case ; (1873) LR 9 QB 219 at 219-220; see too Skipworth's Case (1873) LR 9 QB 230 at 232 per Blackburn J.


case_title: Attorney-General v Newspaper Publishing plc [1988] Ch 333 at 377

case_text: In Attorney-General v Newspaper Publishing Plc [1988] Ch 333 at 377, Lloyd LJ tellingly observed that it was nonsensical for the law to classify as a criminal a stranger to the litigation who aided and abetted a party bound by an injunction to breach the injunction, while leaving the principal not as a criminal at all but as only 'guilty' of 'civil' contempt. He would have classified each as 'civil'. In contrast, Sir John Donaldson MR also found the classification between civil and criminal contempt no longer to be appropriate and suggested an, apparently criminal classification ([1988] Ch at 362B-D; see too: Borrie & Lowe : The Law of Contempt (3 rd ed) pp 630-664). Of course, Gibbs CJ, Mason, Wilson and Deane JJ had debunked the example of the stranger being liable on a different standard as 'an absurd proposition' in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 108.


case_outcome: discussed

case_text: The Tribunal then proceeded to consider whether the proceedings before Buddin J could be described as having resulted in a conviction for a criminal offence. It referred to a number of authorities to which I will have to refer in due course, including Attorney General (NSW) v Whiley (1993) 31 NSWLR 314; Whitham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 and Australasian Meat Industry Employees' Union v Mudginberri Pty Limited [1986] HCA 46 ; (1986) 161 CLR 98. The Tribunal concluded that there was no doubt that proceedings before Buddin J had been brought with the purpose of punishing Mr Seymour noting that it had been common ground, as Buddin J recorded in his reasons, that the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied and that the penalty imposed had been one of imprisonment for a fixed term, as opposed to an indefinite term until the contempt of being purged. The tribunal then said: '24. Therefore whilst not free from doubt, I accept for current purposes that the contempt proceedings before Buddin J were criminal. 25. The result of that finding has application to both subparagraphs 5.2 and 5.4 of the Respondent's Statement of Facts and Contentions.' 74 Nonetheless, the distinction had been recognized in the High Court as recently as Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 106. 75 The reliance on the distinction in a case like the present, where the applicant was sentenced to nine months imprisonment, suspended, for breaching a court order shows how unworkable the distinction really is in practice. Was the contempt with which the applicant was charged civil when the charge was preferred? Did it remain so or did it transmute, as the seriousness of, and contumaciousness of, his conduct was proved in evidence or found by Buddin J when giving judgment? The very notion that an allegation of contempt can have such a chameleon-like character demonstrated, in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 108-109 and in Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525, that all such cases had to be decided on the criminal standard of proof. The High Court did not have to decide in the latter case whether the distinction between 'civil' and 'criminal' contempt should be abolished (see 183 CLR at 549). 84 The elusiveness of the distinction Windeyer J identified is demonstrated by the result in Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525. There the question was what standard of proof applied, i.e. civil or criminal, in proceedings which fell squarely within Lord Atkinson's 'civil' classification, namely, charges of contempt that the appellant knowingly or recklessly presented a false or misleading statement of his assets and liabilities in an affidavit which he had been ordered to make and that he breached (what was then termed) a Mareva injunction, (this is now known as a Mareva order: Cardile v LED Builders Pty Ltd [1999] HCA 18 ; (1999) 198 CLR 380 at 393-394 [25] [-26]) by dealing with his assets contrary to the terms. Brennan, Deane, Toohey and Gaudron JJ said (183 CLR at 533-534): '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 ((1986) [1986] HCA 46 ; 161 CLR 98 at 108), that punitive and remedial objects are, in the words of Salmon LJ "inextricably intermixed" ( Jennison v Baker [1972] 2 QB 52 at 64). 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.' 85 More recently in Rich v ASIC [2004] HCA 42 ; (2004) 220 CLR 129 at 145 [32] , [33], 148 [41], six justices referred to the difficulties in attempting to classify all proceedings as either civil or criminal. They noted the elusive distinction between 'punitive and 'protective' proceedings. And in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 112-113, Gibbs CJ, Mason, Wilson and Deane JJ said that lying behind punishment for a contempt which involves wilful disobedience to a court order is the very substantial purpose of disciplining the defendant and vindicating the authority of the court. They held that a deliberate commission or omission which is in breach of an injunctive order or undertaking would constitute such wilful disobedience unless it were casual, accidental or unintentional. They said (161 CLR at 113) that such a deliberate commission or omission: '... went beyond a matter of mere civil contempt there opening up ... a jurisdiction in the Federal Court to adopt such measures in its discretion, whether punitive or coercive, which would best deal with the contempt.' 93 In Attorney-General v Newspaper Publishing Plc [1988] Ch 333 at 377, Lloyd LJ tellingly observed that it was nonsensical for the law to classify as a criminal a stranger to the litigation who aided and abetted a party bound by an injunction to breach the injunction, while leaving the principal not as a criminal at all but as only 'guilty' of 'civil' contempt. He would have classified each as 'civil'. In contrast, Sir John Donaldson MR also found the classification between civil and criminal contempt no longer to be appropriate and suggested an, apparently criminal classification ([1988] Ch at 362B-D; see too: Borrie & Lowe : The Law of Contempt (3 rd ed) pp 630-664). Of course, Gibbs CJ, Mason, Wilson and Deane JJ had debunked the example of the stranger being liable on a different standard as 'an absurd proposition' in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 108. 94 For my part, were I free to do so, I would regard all contempts which interfere with the course of justice or the due administration of the law ( Lane v Registrar of Supreme Court of NSW [1981] HCA 35 ; (1981) 148 CLR 245 at 257-258; Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 107) as criminal offences because they denote a qualification or impediment on (e.g. contempts by publication which can be unknowing) or a refusal to obey the lawful authority of the Court. When the Court enjoins a person from acting in a particular way, it is undoubtedly saying that it will be a breach of the law so to act thereafter. Why, when the person breaches the injunction is his or her behaviour any less serious or different in character than a breach of a statutory prohibition to which criminal sanctions also attach? 102 A person charged with contempt should never be exposed to the duplicitous, almost schizophrenic, nature of a charge of 'civil' contempt which, during the course of the hearing may change into a 'criminal' charge. No other court proceedings allow of such an intolerable situation. It is unfair to the point of being unjust that a person defending proceedings does not know at the outset of the hearing the full nature of the case against him or her where liberty may be in jeopardy (cf: Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 108-109). 104 Accordingly, I must decide whether Mr Seymour was found by Buddin J to have acted contumaciously in breach of the injunction. A 'civil' contempt can become 'criminal' where the act charged is contumacious in the sense that in doing it there was a direct intention to disobey the order ( Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 541 per McHugh J citing Warrington J's well known dictum in Stancomb v Trowbridge Urban Council [1910] 2 Ch 190 at 194). A breach of an injunction or undertaking to the Court can also be criminal if it is '... an obstinate disregard' of the obligation imposed by or owed to the Court ( Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 111-112). The hallmark of a classification of 'criminal' contempt of this nature is contumacy or defiance ( Australian Consolidated Press Ltd v Morgan [1965] HCA 21 ; (1965) 112 CLR 483 at 489 per Barwick CJ, 501-502 per Windeyer J; Doyle v The Commonwealth [1985] HCA 46 ; (1986) 156 CLR 510 at 516).


case_text: The tribunal commenced its reasons by setting out the relevant portions of s 290 of the Act. It then referred to the explanation of what the term ' fit and proper person ' connoted in the decisions of Hill J in Davies v Australian Securities Commission (1995) 59 FCR 221 at 232D-233B; (131 ALR 295 at 305) and Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 380.


case_title: Australian Building and Construction and Builders Labourers' Federation v David Syme & Co Ltd (1982) 59 FLR 48

case_text: The significance of their Honours' judgment is that in cases of 'criminal contempt' all such contempts are indictable misdemeanours at common law but are also capable of being punishable summarily. That result followed from the undelivered judgment of Wilmot J in R v Almon (1765) Wilm 243; 97 ER 94; see too: James v Robinson [1963] HCA 32 ; (1963) 109 CLR 593 at 600-602, 612. An indictable misdemeanour was triable as an ordinary criminal offence, on indictment before a jury (see Rex v Tibbits [1902] 1 KB 77 at 87). It is a common law criminal offence which was once described by Lindley LJ as '... the only offence that I know of which is punishable at common law by summary process' ( O'Shea v O'Shea & Parnell (1890) 15 PD 59 at 64, cited with approval in Australian Building and Construction and Builders' Labourers' Federation v David Syme & Co Ltd (1982) 59 FLR 48 at 52; 40 ALR 518 at 521.) And it must follow that where the misdemeanour is punished by summary process, it is no less a punishment that follows conviction for a criminal offence. 79 The Full Court of this court has held in Australian Building Construction Employees' and Builders Labourers' Federation v David Syme & Co Ltd (1982) 59 FLR 48; 40 ALR 518 that the court had no jurisdiction to hear an appeal against a verdict of acquittal on the merits on a charge of criminal contempt. That case had applied an earlier decision of a Full Court in Thompson v Mastertouch TV Service Pty Ltd [No 3] (1978) 38 FLR 397; 19 ALR 547 which had held that the court under s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) had no jurisdiction to hear an appeal against a verdict of acquittal on the merits of a criminal charge. This line of authority was subsequently approved in Davern v Messel [1984] HCA 34 ; (1984) 155 CLR 21 (see esp at 46 per Mason and Brennan JJ). As Bowen CJ, Evatt and Deane JJ pointed out in Australian Building Construction and Builders' Labourers' Federation v David Syme & Co Ltd (1982) 59 FLR 48 at 53; 40 ALR 518 at 522: 'A finding of guilt of criminal contempt is a "conviction" (see Izuora v R [1953] AC 327 at 334-5) of an "offence" (see Shamadasani v King-Emperor [1945] AC at 264 at 270: "so grave an offence as contempt of court"). In Re James W Thompson (1893) 19 VLR 286, the Full Court of the Supreme Court of Victoria (Williams, Holroyd and Hood JJ) held that an appeal against an order attaching the appellant for contempt of court in publishing certain articles in a newspaper commenting on pending proceedings was incompetent for the reason that the proceedings for attachment were "a criminal matter, and therefore there is no appeal to this court". Their Honours commented that the purported appeal was "virtually an appeal from a punishment inflicted by a judge presiding in the criminal court for a criminal offence" (see, also, the equally strong comments of Cussen J in Re Dunn [1906] VLR 493 at 501-2). Acquittal of a charge of criminal contempt after a hearing on the merits is, in our view, an acquittal in criminal proceedings for the purposes of the established principle that no appeal lies from an acquittal on the merits of a criminal charge.'


case_text: Relevantly for present purposes in Australian Consolidated Press Ltd v Morgan [1965] HCA 21 ; (1965) 112 CLR 483 at 497-498 Windeyer J in obiter dicta (Owen J agreeing on this aspect at 112 CLR at 516) said: 'In Scott v. Scott ([1913] AC 417) Lord Atkinson, after referring to several cases, said: "It was contended that these cases show that the disobedience of an order of Court constitutes in itself a crime, a criminal contempt of Court. Unfortunately for this contention, however, they do something more than that; they show I think, conclusively, that if a person be expressly enjoined by injunction, a most solemn and authoritative form of order, from doing a particular thing, and he deliberately in breach of that injunction, does that thing, he is not guilty of any crime whatever, but only of a civil contempt of Court" ([1913] AC at p 456). And in New South Wales, more than sixty years ago Walker J. spoke of "the mistaken view that all the offences generically known as contempts stand on the same footing, and that all contempts are criminal and must be dealt with as though they were the subject of a criminal indictment". "This", he said, "is not so." Dealing with an application for the sequestration of the property of a trade union that had disobeyed an injunction he said, "This is not an application by the plaintiff that the Court should exercise its criminal jurisdiction, and punish the union for a criminal offence; it is a step in the suit by which the plaintiff endeavours, by the only means open to him, to enforce against the union the injunction of the Court": Keogh v. The Australian Workers' Union ((1902) 2 SR Eq (NSW) 265 at pp 281, 282).' 104 Accordingly, I must decide whether Mr Seymour was found by Buddin J to have acted contumaciously in breach of the injunction. A 'civil' contempt can become 'criminal' where the act charged is contumacious in the sense that in doing it there was a direct intention to disobey the order ( Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 541 per McHugh J citing Warrington J's well known dictum in Stancomb v Trowbridge Urban Council [1910] 2 Ch 190 at 194). A breach of an injunction or undertaking to the Court can also be criminal if it is '... an obstinate disregard' of the obligation imposed by or owed to the Court ( Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 111-112). The hallmark of a classification of 'criminal' contempt of this nature is contumacy or defiance ( Australian Consolidated Press Ltd v Morgan [1965] HCA 21 ; (1965) 112 CLR 483 at 489 per Barwick CJ, 501-502 per Windeyer J; Doyle v The Commonwealth [1985] HCA 46 ; (1986) 156 CLR 510 at 516).


case_text: I can see no error of law (and a good deal of common sense) in the clear inference drawn by the tribunal that Mr Seymour had purported to act as a solicitor before Blanch J made his order. Mr Seymour had knowledge of the facts and he cannot complain that having failed fully and clearly to provide them to the tribunal, it drew inferences against him: cp: Blatch v Archer (1774) 1 Cowp 63 [98 ER 969]; R v Burdett (1820) 4 B & Ald 95 [106 ER 873]; Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217 at 225 per Mason CJ, Deane and Dawson JJ, 233 per Brennan and Toohey JJ; Azzopardi v The Queen [2001] HCA 25 ; (2001) 205 CLR 50 at 74-75 [65] - [67] per Gaudron, Gummow, Kirby and Hayne JJ; see too Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418E-G per Handley JA; Temora Shire Council v Stein (2004) 134 LGERA 407 at 424 [52] per Giles JA, [56] per Hodgson JA, 425 [62] per Pearlman AJA; see too Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 ; (2000) 200 CLR 121 at 142-143 [51] per Gleeson CJ and McHugh J.


case_title: Baker v The Queen [2004] HCA 45 ; (2004) 210 ALR 1


case_text: McHugh J disagreed saying that even though the content of the contempt power of the Family Court could only be ascertained by reference to the common law, its source was a law of the Commonwealth (200 CLR at 399 [36]-[37]). He held that s 35 of the Family Law Act 1975 (Cth) was that source (200 CLR at 403-405 [48]-[50] Kirby J agreed with McHugh J on this point (200 CLR at 416 [80]-[81]. It is clear that Callinan J also considered that s 35 created an offence against a law of the Commonwealth (200 CLR at 431-433 [121]-[126], 439 [136]; see too Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 at [13] ).


case_title: Blunden v The Commonwealth [2003] HCA 73 ; (2003) 218 CLR 330


case_text: In Waugh v Kippen [1986] HCA 12 ; (1986) 160 CLR 156 at 164-165 Gibbs CJ, Mason, Wilson and Dawson JJ said (I have added in the following passage the interpolation in square brackets which McHugh J inserted when citing it in Newcastle City Council v GIO General Ltd [1997] HCA 53 ; (1997) 191 CLR 85 at 109 and see too per Toohey, Gaudron and Gummow JJ at 102-103; Chew v The Queen [1992] HCA 18 ; (1992) 173 CLR 626 at 632): 'The modern approach in construing penal statutes was stated by Gibbs J. (as he then was) in Beckwith v. The Queen ((1976) [1976] HCA 55 ; 135 CLR 569 at 576) as follows: "The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R. v. Adams ((1935) [1935] HCA 62 ; 53 CLR 563 at pp. 567-568); Craies on Statute Law , 7th ed. (1971), pp. 529-534. The rule is perhaps one of last resort." In the course of argument, the question arose whether the two principles of interpretation to which we have referred [ie a purposive interpretation which furthered industrial safety and the rule that penal provisions should be strictly construed] come into conflict in the present case and if so, how the conflict is to be resolved. If such a conflict was to arise, the court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have: Harrison v. National Coal Board ([1951] AC 639 at p. 650), per Lord Porter; John Summers & Son Ltd. v. Frost ([1955] AC 740 at p. 751), per Viscount Simonds; McCarthy v. Coldair Ltd. ([1951] 2 TLR 1226 at pp. 1227-1228), per Denning L.J. In such a context the strict construction rule is indeed one of last resort. Furthermore, the process of construction must yield for all purposes a definitive statement of the incidence of an obligation imposed on the employer. The legislature cannot speak with a forked tongue.'


case_text: Were I free to decide the question, I would hold that it is inconsistent with the rule of law for a court to have power to imprison a person for contempt unless the person's conduct amounted to a criminal offence. I realize that preconceived notions or classifications of what is 'civil' or 'criminal' are not always helpful. But where the liberty of the subject may be in jeopardy as part of the range of sentencing or remedial options open to a court on a finding that a charge of contempt has been proved beyond reasonable doubt, I am firmly of opinion that such a proceeding is a criminal proceeding whether or not a sentence imprisonment ultimately be imposed (cp: Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49 ; (2003) 216 CLR 161 at 204-207 [131] - [139] per Hayne J, Gleeson CJ and McHugh J agreeing at 166 [1], [3]).


case_outcome: applied

case_text: The tribunal noted that at the commencement of the hearing Mr Seymour challenged the validity of the decision that had been made by a body which described itself as the Professional Standards & Registration Sub-Committee of the Authority. The tribunal referred to its earlier ex tempore decision in which it had ruled that the sub-committee had not been given a delegation in writing pursuant to s 319A of the Act and that therefore its decision was invalid. The tribunal noted that pursuant to Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338; 41 ALR 307 and Z ubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344 it had jurisdiction to review the impugned decision and in doing so could exercise all the powers and discretions of the Authority. The Tribunal dealt with the first of the Authority's contentions by reciting the facts the subject of the institution of the contempt proceedings before Buddin J and noting the plea of guilt. After recording his Honour's orders, the Tribunal continued: '12. Buddin J in his judgment refers to the circumstances of the offence. It would appear that the Applicant acted for a client in the purchase of a property and that the solicitor for the vendor assumed that the Applicant was a solicitor and the Applicant did not disabuse the vendor's solicitor of that assumption. As Buddin J said in his judgment at paragraph 6: "... I have no difficulty in accepting Ms Doolin's evidence that had she known that the offender was not a solicitor, she would have approached her dealings with him quite differently. I accept that she would not have, for example, permitted him to act as her firm's agent on settlement. Nor is it likely that she would have forwarded the signed transfer to him in the circumstances in which she did, or at least not without having first obtained instructions about the matter." 13. The circumstances which led to the orders of Blanch J were not before me and the Applicant was vague when asked to recount the events leading to the proceedings before Blanch J in 1994. I find that a clear inference is that the Applicant did purport to act as a solicitor, hence the nature of the orders made. 14. In the course of his judgment, Buddin J referred to proceedings before Barr J in 1997 where the Law Society of New South Wales had sought orders from the Supreme Court that the Applicant was in contempt of that Court for failing to comply with the orders of Blanch J. There were in those proceedings, three transactions in which the Applicant's conduct was alleged to have constituted breaches of the orders made by Blanch J. That Notice of Motion was dismissed by Barr J and an appeal against his decision was dismissed by the Court of Appeal on 3 May 1999 (see Law Society of New South Wales v Seymour [1999] NSWCA 117). 15. As Buddin J pointed out, the significance of those proceedings was that only just over 12 months after those proceedings were brought to finality in his favour, the Applicant embarked upon the activities which gave rise to the proceedings before him.' 39 Mr Seymour argued that because the original decision was invalid the tribunal either had no jurisdiction to embark upon a review, or that if I were minded to uphold the appeal to the Court I ought to remit the matter directly to the original decision-maker rather than the tribunal pursuant to s 44(4) of the AAT Act. He made a formal submission that Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307, 41 FLR 338, was wrong but acknowledged that I am bound to follow it. The Authority submitted that the approach of the tribunal applying well known authority was correct. 123 Ordinarily, where the legislature has given a party aggrieved by an administrative decision a full statutory right of appeal on facts and law, that is indicative of a legislative intention that that right is the party's only means of redress against the failure of the original decision-maker to follow, according to law, the rules of procedural fairness in coming to the decision: The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers' Federation [1981] HCA 33 ; (1981) 147 CLR 471 at 484 per Mason J, with whom Murphy J at 489, Aickin J at 493 and Wilson J at 494 agreed on this point; Twist v Randwick Municipal Council [1976] HCA 58 ; (1976) 136 CLR 106 at 113-117, esp at 117; Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344 at 354 [31] - [32] (and see too at 353 [29] where Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307, 41 FLR 338; was followed). 125 In Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 at 314-316, Bowen CJ and Smithers J at 337 (Deane J dissenting at 344) held that s 25 of the AAT Act allowed the tribunal to review a 'decision' where the person who purported to make the decision had no power to do so. Both Bowen CJ and Smithers J pointed out that a construction of s 25 of the AAT Act which required the decision the subject of an application before the tribunal for review to be legally valid and effective would create practical problems and inconvenience. And as Hely, Gyles and Allsop JJ held in Minister for Immigration v Ahmed [2005] FCAFC 58 ; (2005) 143 FCR 314 at 322 [33] it is clear that, unless a statute provides otherwise, the tribunal can review a decision which was not authorized by law or by statute. 126 Here, on 14 February 2005 the Authority wrote to Mr Seymour notifying him that '... the Authority has made the decision to refuse your application for registration. At that time, no one was aware that there had been no formal delegation to the actual decision-maker to make that 'decision'. Mr Seymour immediately applied on 17 February 2005 to the tribunal to review the 'decision' and on 14 April 2005 the tribunal granted a stay of the 'decision' which had the effect of permitting Mr Seymour to continue to act as a migration agent. 130 It would produce great uncertainty if the result of the majority decision in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307; 41 FLR 338, which has stood for over 27 years, were now to be ignored. An example of a consequence of ignoring the settled course of authority in this Court suffices to show the unlikelihood that the Parliament intended such a result. If the original decision were found by the tribunal to have been made by a person without authority to make it or to have been infected by jurisdictional error, and the tribunal then made a decision using its powers under s 43(1) of the AAT Act to stand in the stead of the original decision-maker, the original decision-maker could set the tribunal's decision at nought by making a new decision on the basis that, notwithstanding that the tribunal had a full hearing on the merits, its decision was no decision at all. Rather than providing the subject with an effectual means of redress against the use of the executive power, the AAT Act would be turned into an instrument of uncertainty. Such a result cannot have been intended by the Parliament. Rather, I am of opinion that the intention of the Parliament in enacting the AAT Act was to enable the tribunal to review decisions which were affected by jurisdictional error as well as ones where there was some, even unknown, defect in the decision-maker's capacity to make the decision in question.


case_title: Commercial Union Assurance Co-op Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389


case_text: As is implicit in the tribunal's finding, it was not satisfied that that was a sufficient explanation for the failure to disclose in the first place (cf: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592). There was no error of law in the tribunal's approach. 135 And, the tribunal's reasons show that it did examine 'the whole position': A Solicitor v Law Society (NSW) [2004] HCA 1 ; (2004) 216 CLR 253 at 266 [18] . Despite Mr Seymour's submissions, I am not satisfied that the tribunal made any error of law in approaching its task of making an evaluation of the particular facts and circumstances before it concerning him and in making its decision as to its satisfaction under s 290(1). The tribunal considered the detailed subjective and objective circumstances of Mr Seymour's offending behaviour (cf: 216 CLR at 268 [22]) in the context of the whole of its reasons, before expressing its conclusion at [37]-[38]. The tribunal is not obliged to set out every detail of its reasoning process ( Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437 at 449 [54] per Gummow and Heydon JJ, Gleeson CJ agreeing at 438 [1] applying Commissioner for Australilan Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592. There Northrop, Miles and French JJ held that a decision-maker could rely on an obvious and natural evaluation of admitted facts to decide that an applicant was not a fit and proper person).


case_text: When the Court quells a controversy by ordering that a party do or refrain from a particular act or activity, it defines the rights and obligations of the parties as an aspect of the way in which our society is governed (cf: D'Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12 ; (2005) 79 ALJR 755 at 761-762 [31] - [36] , 763 [43] per Gleeson CJ, Gummow, Hayne and Heydon JJ). A breach of such an order interferes in the administration of the law because it evinces an intention not to obey the law, as it affects the parties, which has been determined by the Court as a branch of government. That is so whether the injunction is final or interlocutory. 96 Of course, an order for the payment of money as damages or compensation is of a different character. When the Court orders a payment of this kind it creates a debt which is enforceable by a variety of means. Moreover, as is frequent, judgment debtors are not always able to pay debts. Injunctions, however, ought always be framed so that it is possible for the party enjoined to obey their commands. 97 And a failure to obey the injunction does interfere with the administration of the law because it evinces an intention that the command by the Court can be ignored. In effect, since behaviour suggests that the controversy has not been quelled and that the party enjoined can choose to obey or not as he or she pleases.


case_text: The Full Court of this court has held in Australian Building Construction Employees' and Builders Labourers' Federation v David Syme & Co Ltd (1982) 59 FLR 48; 40 ALR 518 that the court had no jurisdiction to hear an appeal against a verdict of acquittal on the merits on a charge of criminal contempt. That case had applied an earlier decision of a Full Court in Thompson v Mastertouch TV Service Pty Ltd [No 3] (1978) 38 FLR 397; 19 ALR 547 which had held that the court under s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) had no jurisdiction to hear an appeal against a verdict of acquittal on the merits of a criminal charge. This line of authority was subsequently approved in Davern v Messel [1984] HCA 34 ; (1984) 155 CLR 21 (see esp at 46 per Mason and Brennan JJ). As Bowen CJ, Evatt and Deane JJ pointed out in Australian Building Construction and Builders' Labourers' Federation v David Syme & Co Ltd (1982) 59 FLR 48 at 53; 40 ALR 518 at 522: 'A finding of guilt of criminal contempt is a "conviction" (see Izuora v R [1953] AC 327 at 334-5) of an "offence" (see Shamadasani v King-Emperor [1945] AC at 264 at 270: "so grave an offence as contempt of court"). In Re James W Thompson (1893) 19 VLR 286, the Full Court of the Supreme Court of Victoria (Williams, Holroyd and Hood JJ) held that an appeal against an order attaching the appellant for contempt of court in publishing certain articles in a newspaper commenting on pending proceedings was incompetent for the reason that the proceedings for attachment were "a criminal matter, and therefore there is no appeal to this court". Their Honours commented that the purported appeal was "virtually an appeal from a punishment inflicted by a judge presiding in the criminal court for a criminal offence" (see, also, the equally strong comments of Cussen J in Re Dunn [1906] VLR 493 at 501-2). Acquittal of a charge of criminal contempt after a hearing on the merits is, in our view, an acquittal in criminal proceedings for the purposes of the established principle that no appeal lies from an acquittal on the merits of a criminal charge.'


case_title: Davies v Australian Securities Commission (1995) 59 FCR 221


case_text: Nowadays, all charges of contempt are invariably heard by a judge or a full court sitting on a summary trial. The procedure for trial by jury of such a charge or indictment has fallen into desuetude ( Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588 at 595A-D per Street CJ, Hope, Glass, Samuels and Priestly JJA; In re Lonrho Plc [1990] 2 AC 154 at 177B-C; Re Colina; Ex parte Torney [1999] HCA 57 ; (1999) 200 CLR 386 at 393-394 [12] ; Borrie & Lowe: The Law of Contempt (3 rd ed) p 469). In Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 707C-E McHugh JA referred to Rex v Tibbits [1902] 1 KB 77 as the last reported case in England of a trial for contempt on indictment and he said there had not been such a trial in New South Wales in the twentieth century.


case_outcome: followed

case_text: Subsequently in Doyle v The Commonwealth [1985] HCA 46 ; (1985) 156 CLR 510 at 516, Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ applied Windeyer J's remarks saying that: '... disobedience of an injunction is not a criminal offence ... and a proceeding for the committal of a person who has wilfully disobeyed an order of the Court is not a criminal proceeding (see La Trobe University v Robinson and Pole [1973] VR 682 at 688) except possibly where the proceedings are grounded upon a contumacious or defiant contempt of the Court....' 103 However, Doyle v The Commonwealth [1985] HCA 46 ; (1985) 156 CLR 510 at 516 establishes authoritatively for this matter that the old and unsatisfactory distinctions apply, and I do not feel that I can follow Lord Atkin's advice in United Australia Ltd v Barclays Bank Ltd [1941] AC 1 at 29, where he said: 'When these ghosts of the past stand in the path of justice clanking their mediæval chains the proper course for the judge is to pass through them undeterred.' 104 Accordingly, I must decide whether Mr Seymour was found by Buddin J to have acted contumaciously in breach of the injunction. A 'civil' contempt can become 'criminal' where the act charged is contumacious in the sense that in doing it there was a direct intention to disobey the order ( Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 541 per McHugh J citing Warrington J's well known dictum in Stancomb v Trowbridge Urban Council [1910] 2 Ch 190 at 194). A breach of an injunction or undertaking to the Court can also be criminal if it is '... an obstinate disregard' of the obligation imposed by or owed to the Court ( Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 111-112). The hallmark of a classification of 'criminal' contempt of this nature is contumacy or defiance ( Australian Consolidated Press Ltd v Morgan [1965] HCA 21 ; (1965) 112 CLR 483 at 489 per Barwick CJ, 501-502 per Windeyer J; Doyle v The Commonwealth [1985] HCA 46 ; (1986) 156 CLR 510 at 516).


case_text: While in centuries gone by it may have been legally possible to imprison people who owed but had not paid debts, imprisonment in Australia today can only occur where a person is sentenced to a term by a court pursuant to law, be it a statute or the unwritten law, or is remanded (or held for a very limited time before he or she must be brought before a court or a justice of the peace: cf: Williams v The Queen [1987] HCA 36 ; (1986) 161 CLR 278) in custody as incident of the administration of the criminal law so as to be available at his or her trial. Administrative detention is not imprisonment ( Al-Kateb v Godwin [2004] HCA 37 ; (2004) 219 CLR 562) and some statutes can authorize preventative detention after a term of imprisonment has been served (cf: Fardon v Attorney-General (Qld) [2004] HCA 46 ; (2004) 210 ALR 50, 78 ALJR 1519; Baker v The Queen [2004] HCA 45 ; (2004) 210 ALR 1, 78 ALJR 1483; Kable v DPP (NSW) [1996] HCA 24 ; (1996) 189 CLR 51). As Salmon LJ remarked in Jennison v Baker [1972] 2 QB 52 at 61G, of the distinction between 'civil' and 'criminal' contempt: 'I think that, at any rate today, this is an unhelpful and almost meaningless classification.' see too per John Laws (then junior counsel to the Treasury) in: Current Problems in the Law of Contempt (1990) 43 Current Legal Prolems 99 at 101, 102 quoted in Aldridge Eady & Smith on Contempt (3 rd ed) at [3-48].


case_title: Hinch v Attorney General (Vict) (No 2) [1987] HCA 56 ; (1987) 164 CLR 15

case_text: Mr Seymour relied upon the statement that all proceedings for contempt ' must realistically be seen as criminal in nature ' as Deane J pointed out in Hinch v Attorney General (Vict) [1987] HCA 56 ; (1987) 164 CLR 15 at 49 and as approved by Brennan, Deane, Toohey and Gaudron JJ in Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 534. It was said that, accordingly, the tribunal's finding that the contempt charge determined by Buddin J was criminal was an error of law. Next he argued that that error of law affected the tribunal's finding that Mr Seymour demonstrated a lack of candour and openness by his apparently contradictory stances taken before the Court of Appeal in the earlier contempt proceedings (namely that the Law Society should not be allowed to appeal against his acquittal) and his stance in the proceedings before the tribunal (that the proceedings before Buddin J were not criminal). 78 That reasoning reflected what the Court had said in Hinch v Attorney-General (Vict) (No 2) [1987] HCA 56 ; (1987) 164 CLR 15 at 89 where it noted: 'Notwithstanding that a contempt may be described as a criminal offence, the proceedings do not attract the criminal jurisdiction of the court to which the application is made. On the contrary, they proceed in the civil jurisdiction and attract the rule that ordinarily applies in that jurisdiction, namely, that costs follow the event.' 80 And in Shamadasani v King-Emperor [1945] AC 264 at 270 (in a passage approved by the Court in Hinch v Attorney-General (Vict) (No. 2) [1987] HCA 56 ; (1987) 164 CLR 15 at 90), Lord Goddard also said, in explaining why the Privy Council ordered the Crown to pay costs contrary to the usual practice in criminal cases where the Crown appeared to uphold a conviction: 'Although this matter is one which is known as criminal contempt it obviously is in a different category from an ordinary criminal case.'


case_text: By applying for a review in the tribunal, Mr Seymour elected to treat the original decision of the Authority as valid and, having proceeded with the full review, he has lost any right he had to challenge the original decision. He should not be allowed to have the opportunity to approbate a favourable review or reprobate an unfavourable result as he chooses (see too: Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) [1993] HCA 27 ; (1993) 182 CLR 26 at 41-42 per Deane, Toohey, Gaudron and McHugh JJ; Meyers v Casey [1913] HCA 50 ; (1913) 17 CLR 90 at 99 per Barton ACJ, at 116 per Isaacs J (with whom Rich J agreed at 148)). 133 The reasons for administrative decisions are not to be pharsed and analysed as if they are judgments. Their role is to explain in the decision-maker's own words why he or she or they arrived at the result. Administrative decision-makers are not necessarily or, I apprehend, usually trained lawyers with a keen eye to what court might find revelatory of an error of law (cf: Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) [1993] HCA 27 ; 182 CLR 26 at 41-42 per Deane, Toohey, Gaudron and McHugh JJ; Meyers v Casey [1913] HCA 50 ; (1913) 17 CLR 90 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The court cannot acquire jurisdiction to review a decision if the tribunal merely makes an error of fact ( Waterford v The Commonwealth ((1987) [1987] HCA 25 ; 163 CLR 54 at 66 per Mason and Wilson JJ, 77 per Brennan J).


case_title: In re Lonrho Plc [1990] 2 AC 154


case_text: The inherent jurisdiction of a superior court of record so constituted, such as the Supreme Court of New South Wales, includes a power to punish for contempts out of court which are committed not just of that court but against any court over which the superior court exercises a supervisory jurisdiction: John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12 ; (1955) 93 CLR 351 at 364-365 per Dixon CJ, Fullagar, Kitto and Taylor JJ. Earlier their Honours said: 'A party disobedient to the order or process of a court is often said to be "in contempt". In these cases each court has its own appropriate means of enforcement, and such "contempts" are not criminal. Criminal contempt consists in contumelious behaviour to a court, and is divided into two broad classes--contempt in the face of the court and contempt out of court. All criminal contempts are indictable offences at common law. Contempts in the face of the court have, however, from time immemorial been punishable summarily (i.e. without conviction by a jury) by the court before which the contempt is committed.' (see too James v Robinson [1963] HCA 32 ; (1963) 109 CLR 593 at 612 per Windeyer J) 70 The significance of their Honours' judgment is that in cases of 'criminal contempt' all such contempts are indictable misdemeanours at common law but are also capable of being punishable summarily. That result followed from the undelivered judgment of Wilmot J in R v Almon (1765) Wilm 243; 97 ER 94; see too: James v Robinson [1963] HCA 32 ; (1963) 109 CLR 593 at 600-602, 612. An indictable misdemeanour was triable as an ordinary criminal offence, on indictment before a jury (see Rex v Tibbits [1902] 1 KB 77 at 87). It is a common law criminal offence which was once described by Lindley LJ as '... the only offence that I know of which is punishable at common law by summary process' ( O'Shea v O'Shea & Parnell (1890) 15 PD 59 at 64, cited with approval in Australian Building and Construction and Builders' Labourers' Federation v David Syme & Co Ltd (1982) 59 FLR 48 at 52; 40 ALR 518 at 521.) And it must follow that where the misdemeanour is punished by summary process, it is no less a punishment that follows conviction for a criminal offence.


case_title: Jennison v Baker [1972] 2 QB 52

case_text: The elusiveness of the distinction Windeyer J identified is demonstrated by the result in Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525. There the question was what standard of proof applied, i.e. civil or criminal, in proceedings which fell squarely within Lord Atkinson's 'civil' classification, namely, charges of contempt that the appellant knowingly or recklessly presented a false or misleading statement of his assets and liabilities in an affidavit which he had been ordered to make and that he breached (what was then termed) a Mareva injunction, (this is now known as a Mareva order: Cardile v LED Builders Pty Ltd [1999] HCA 18 ; (1999) 198 CLR 380 at 393-394 [25] [-26]) by dealing with his assets contrary to the terms. Brennan, Deane, Toohey and Gaudron JJ said (183 CLR at 533-534): '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 ((1986) [1986] HCA 46 ; 161 CLR 98 at 108), that punitive and remedial objects are, in the words of Salmon LJ "inextricably intermixed" ( Jennison v Baker [1972] 2 QB 52 at 64). 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.' 99 While in centuries gone by it may have been legally possible to imprison people who owed but had not paid debts, imprisonment in Australia today can only occur where a person is sentenced to a term by a court pursuant to law, be it a statute or the unwritten law, or is remanded (or held for a very limited time before he or she must be brought before a court or a justice of the peace: cf: Williams v The Queen [1987] HCA 36 ; (1986) 161 CLR 278) in custody as incident of the administration of the criminal law so as to be available at his or her trial. Administrative detention is not imprisonment ( Al-Kateb v Godwin [2004] HCA 37 ; (2004) 219 CLR 562) and some statutes can authorize preventative detention after a term of imprisonment has been served (cf: Fardon v Attorney-General (Qld) [2004] HCA 46 ; (2004) 210 ALR 50, 78 ALJR 1519; Baker v The Queen [2004] HCA 45 ; (2004) 210 ALR 1, 78 ALJR 1483; Kable v DPP (NSW) [1996] HCA 24 ; (1996) 189 CLR 51). As Salmon LJ remarked in Jennison v Baker [1972] 2 QB 52 at 61G, of the distinction between 'civil' and 'criminal' contempt: 'I think that, at any rate today, this is an unhelpful and almost meaningless classification.' see too per John Laws (then junior counsel to the Treasury) in: Current Problems in the Law of Contempt (1990) 43 Current Legal Prolems 99 at 101, 102 quoted in Aldridge Eady & Smith on Contempt (3 rd ed) at [3-48].


case_text: The inherent jurisdiction of a superior court of record so constituted, such as the Supreme Court of New South Wales, includes a power to punish for contempts out of court which are committed not just of that court but against any court over which the superior court exercises a supervisory jurisdiction: John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12 ; (1955) 93 CLR 351 at 364-365 per Dixon CJ, Fullagar, Kitto and Taylor JJ. Earlier their Honours said: 'A party disobedient to the order or process of a court is often said to be "in contempt". In these cases each court has its own appropriate means of enforcement, and such "contempts" are not criminal. Criminal contempt consists in contumelious behaviour to a court, and is divided into two broad classes--contempt in the face of the court and contempt out of court. All criminal contempts are indictable offences at common law. Contempts in the face of the court have, however, from time immemorial been punishable summarily (i.e. without conviction by a jury) by the court before which the contempt is committed.' (see too James v Robinson [1963] HCA 32 ; (1963) 109 CLR 593 at 612 per Windeyer J)


case_text: Aldridge, Eady & Smith on Contempt (3 rd ed) at [3-91] suggest that notwithstanding the views of those who advocate abandoning the distinction between 'civil' and 'criminal' contempt, over the course of years many practical distinctions have occurred which would require explanation were this course to be followed. I do not think this is a sufficient justification. A convicted contemnor's rights of appeal could be protected, quickly, by amending legislation (cp the introduction and amendment of s 101A of the Supreme Court Act 1970 (NSW) where the Attorney-General of that State is given the right to refer to the Court of Appeal questions of law arising out of an acquittal on a charge of contempt: see: Attorney-General (NSW) v X [2000] NSWCA 199 ; (2000) 49 NSWLR 653 and John Fairfax Publications Pty Ltd v Attorney-General (NSW) [2000] NSWCA 198 ; (2000) 181 ALR 694; 158 FLR 81).


case_text: I am of opinion that the common law is a law of each State. The reasoning underlying the decision in the Native Title Case [1995] HCA 47 ; (1995) 183 CLR 373 at 487 was that the Constitution was the only source of the laws of the Commonwealth and it identified the Parliament as the mechanism by which such laws came into existence. But the nature of the federation created by the Constitution recognized that a body of law, separate from statute, existed in the former colonies which became States on 1 January 1901. That body of law, the common law, undoubtedly exists today. It forms part of the 'single system of jurisprudence constituted by the Constitution , federal, State and Territory laws and the common law of Australia' identified by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36 ; (2000) 203 CLR 503 at 534 [66] (see too Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520 at 562).


case_text: For my part, were I free to do so, I would regard all contempts which interfere with the course of justice or the due administration of the law ( Lane v Registrar of Supreme Court of NSW [1981] HCA 35 ; (1981) 148 CLR 245 at 257-258; Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 107) as criminal offences because they denote a qualification or impediment on (e.g. contempts by publication which can be unknowing) or a refusal to obey the lawful authority of the Court. When the Court enjoins a person from acting in a particular way, it is undoubtedly saying that it will be a breach of the law so to act thereafter. Why, when the person breaches the injunction is his or her behaviour any less serious or different in character than a breach of a statutory prohibition to which criminal sanctions also attach?


case_title: Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520


case_text: Although their Honours referred to the 'common law of Australia', that law derives its unity through the role of the High Court under s 73 of the Constitution which enables that Court to harmonize differences in the earlier common laws of the various States by establishing common principles (see e.g. Mabo v Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1 at 29-30 per Brennan J; ACCC v CG Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51 at 71 [38] per Gummow and Hayne JJ; Blunden v The Commonwealth [2003] HCA 73 ; (2003) 218 CLR 330 at 349 [59] per Kirby J). Nonetheless, the source of that 'common law of Australia' in relation to the inherent power of the Supreme Court of New South Wales to punish for contempt of court can only be the common law of that State, because, as the Native Title Case (1995) 183 CLR at 487 held, the Commonwealth itself has no such source.


case_text: Next the Authority submitted that Mr Seymour's argument was misconceived because it amounted to a collateral attack against his conviction which was impermissible ( Minister for Immigration & Multicultural Affairs v SRT [1999] FCA 1197 ; (1999) 91 FCR 234 at 240-245; NSW Bar Association v Somosi (2001) 48 ATR 562 at 577 [80]-[81] per Spigelman CJ, Sheller and Giles JJA agreeing). It was submitted that the tribunal had to accept the conviction and the essential facts, that is, the ingredients of the offences found by Buddin J. That being so, it was said that there was no need in [37] of the tribunal's reasons to engage in an evaluation process of the matters to which it there referred particularly as the Authority argued that [37] incorporated a reference to the earlier findings at [8]-[15] of the tribunal's reasons. 134 Here, the tribunal had the benefit of the judgment of Buddin J. That revealed not only matters which went to the issues under s 290(2)(c) but also to those under ss 290(2)(h), namely any other matter relevant to Mr Seymour's fitness to give immigration assistance. It would be open to the tribunal to rely, as it did in [37]-[38] on the objective facts of Buddin J's decision and sentence irrespective of the technical, legal issue which it addressed, and I have also considered, as to whether the contempt was a 'criminal offence' for the purposes of either or both of ss 290(2)(c) or 312(1)(e). Even if the contempt was not a criminal offence, I am of opinion that the tribunal did not err in having regard to the findings and conclusions of Buddin J in his judgment (cf: Minister for Immigration v SRT [1999] FCA 1197 ; (1999) 91 FCR 234 at 244-245 [42] - [48] per Branson, Lindgren and Emmett JJ).


case_text: Of course, the tribunal's 'satisfaction' as to Mr Seymour is not unexaminable, but its decision as to that matter is of a subjective nature: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 275-277 per Brennan CJ, Toohey, McHugh and Gummow JJ. And, in exercising its functions, the tribunal stood in the Authority's shoes and, pursuant to s 43(1) of the AAT Act that included the requirements in considering Mr Seymour's application, to act according to substantial justice and the merits of the case free from technicalities, legal forms or rules of evidence (see s 311 of the Act). Here, the question was the tribunal's personal satisfaction and it was free to attribute such weight to factors as it saw fit (185 CLR at 281). 137 I am of opinion, having regard to the reasons it gave, that when the tribunal made its evaluation of Mr Seymour at [37]-[38] it did so on a separate and independent basis from the vexed question of whether the contempt was a criminal offence. That is clear because the tribunal at [38] put the question of the nature of the contempt to one side and referred to the objective facts before Buddin J and the seriousness which his Honour attached to the conduct of Mr Seymour as reflected in the substantial sentence imposed. There is no error of law in what the tribunal did in this regard. 138 It was for the tribunal to form its own state of satisfaction under s 290(1) as to the fitness and propriety or integrity of Mr Seymour. In doing so, it took into account matters under s 290(2)(c) and (h) independently of one another; that is, first, it considered that the contempt was a criminal offence thus enlivening ss 290(2)(c) and 312(1)(e) but secondly, and separately, it considered the objective facts revealed by the judgment of Buddin J, thus acting under s 290(2)(h). 139 In the second of these approaches to forming an opinion under s 290(1) the tribunal was entitled to have regard to, and form its own view as to, Mr Seymour's behaviour, as revelatory of the issue under s 290(1). It considered how he submitted, as it suited his own apparent self interest, in the Court of Appeal that contempt of the injunction was a criminal offence thus having the benefit of the principle that there is no appeal against an acquittal and in the tribunal, that it was not a criminal offence and so avoiding ss 290(2)(c) and 312(1)(e). Of course, each of those stances may have been legally open. But it was for the tribunal to be satisfied that a person who could adopt such flexibility about the very serious matter affecting him in the different contexts of the Court of Appeal and the tribunal, where different and opposite characterizations suited his purpose, was a person of integrity or was fit and proper within the meaning of s 290(1). 140 There is no error of law in the evaluative process which the tribunal took. It had regard to both the unmeritorious and the meritorious factors under s 290. It referred to the fact that Mr Seymour's contemporaries regarded him as a person having real moral worth but it weighed that against his history of being struck off as a solicitor, the lack of explanation for and the fact of the consent injunction in 1994 and the conviction and sentence by Buddin J.


case_text: Only a court can decide authoritatively whether or not an administrative decision was legally valid or effective: Plantiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 505-506 [75] - [76] , 513-514 [104]; cf Minister for Immigration v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597 at 605 [13] per Gleeson CJ, 614-615 [51] per Gaudron and Gummow JJ, 618 [63] per McHugh J.


case_text: In Waugh v Kippen [1986] HCA 12 ; (1986) 160 CLR 156 at 164-165 Gibbs CJ, Mason, Wilson and Dawson JJ said (I have added in the following passage the interpolation in square brackets which McHugh J inserted when citing it in Newcastle City Council v GIO General Ltd [1997] HCA 53 ; (1997) 191 CLR 85 at 109 and see too per Toohey, Gaudron and Gummow JJ at 102-103; Chew v The Queen [1992] HCA 18 ; (1992) 173 CLR 626 at 632): 'The modern approach in construing penal statutes was stated by Gibbs J. (as he then was) in Beckwith v. The Queen ((1976) [1976] HCA 55 ; 135 CLR 569 at 576) as follows: "The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R. v. Adams ((1935) [1935] HCA 62 ; 53 CLR 563 at pp. 567-568); Craies on Statute Law , 7th ed. (1971), pp. 529-534. The rule is perhaps one of last resort." In the course of argument, the question arose whether the two principles of interpretation to which we have referred [ie a purposive interpretation which furthered industrial safety and the rule that penal provisions should be strictly construed] come into conflict in the present case and if so, how the conflict is to be resolved. If such a conflict was to arise, the court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have: Harrison v. National Coal Board ([1951] AC 639 at p. 650), per Lord Porter; John Summers & Son Ltd. v. Frost ([1955] AC 740 at p. 751), per Viscount Simonds; McCarthy v. Coldair Ltd. ([1951] 2 TLR 1226 at pp. 1227-1228), per Denning L.J. In such a context the strict construction rule is indeed one of last resort. Furthermore, the process of construction must yield for all purposes a definitive statement of the incidence of an obligation imposed on the employer. The legislature cannot speak with a forked tongue.'


case_text: Next the Authority submitted that Mr Seymour's argument was misconceived because it amounted to a collateral attack against his conviction which was impermissible ( Minister for Immigration & Multicultural Affairs v SRT [1999] FCA 1197 ; (1999) 91 FCR 234 at 240-245; NSW Bar Association v Somosi (2001) 48 ATR 562 at 577 [80]-[81] per Spigelman CJ, Sheller and Giles JJA agreeing). It was submitted that the tribunal had to accept the conviction and the essential facts, that is, the ingredients of the offences found by Buddin J. That being so, it was said that there was no need in [37] of the tribunal's reasons to engage in an evaluation process of the matters to which it there referred particularly as the Authority argued that [37] incorporated a reference to the earlier findings at [8]-[15] of the tribunal's reasons.


case_text: The significance of their Honours' judgment is that in cases of 'criminal contempt' all such contempts are indictable misdemeanours at common law but are also capable of being punishable summarily. That result followed from the undelivered judgment of Wilmot J in R v Almon (1765) Wilm 243; 97 ER 94; see too: James v Robinson [1963] HCA 32 ; (1963) 109 CLR 593 at 600-602, 612. An indictable misdemeanour was triable as an ordinary criminal offence, on indictment before a jury (see Rex v Tibbits [1902] 1 KB 77 at 87). It is a common law criminal offence which was once described by Lindley LJ as '... the only offence that I know of which is punishable at common law by summary process' ( O'Shea v O'Shea & Parnell (1890) 15 PD 59 at 64, cited with approval in Australian Building and Construction and Builders' Labourers' Federation v David Syme & Co Ltd (1982) 59 FLR 48 at 52; 40 ALR 518 at 521.) And it must follow that where the misdemeanour is punished by summary process, it is no less a punishment that follows conviction for a criminal offence.


case_title: Onslow's and Whalley's Case (1873) LR 9 QB 219

case_text: The current mode of proceeding for criminal contempt by the summary procedure is the product of historical development. Whatever procedure be employed to prosecute a charge of criminal contempt, in my opinion, cannot change the essential nature of that charge from being a criminal charge. As McHugh JA pointed out in Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 707E-708E, the overwhelming preference has been in recent times to use the summary procedure and its utilization need not be justified, unlike attempts in the past to do so. As he said (6 NSWLR at 707E) '... the summary procedure is a departure from the ordinary course of law for criminal proceedings' . But that procedure does not change the character or incidents of criminal contempt from being at common law a criminal offence. Lord Russell of Killowen CJ explained the then state of the law in Reg v Gray [1900] 2 QB 36 at 40-41 saying that the summary jurisdiction was '... not a new-fangled jurisdiction; it is a jurisdiction as old as the common law itself, of which it forms part' . But his Lordship pointed out at that time it was exercised '... only when the case is clear and beyond reasonable doubt' and where that feature were not present he said that the courts left it to the Attorney-General to decide whether to proceed by criminal information; i.e. indictment: see R v Hull (1989) 16 NSWLR 385. The reporter noted in Reg v Gray [1900] 2 QB at 43 that the procedure then used was to issue an order on the Crown side of the Queen's Bench Division directing the accused to appear and show cause why he or she should not be committed for contempt as laid out in affidavits: see Onslow's and Whalley's Case ; (1873) LR 9 QB 219 at 219-220; see too Skipworth's Case (1873) LR 9 QB 230 at 232 per Blackburn J.


case_text: In Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19 ; (1999) 198 CLR 435 at 453 [58] Gaudron, Gummow and Callinan JJ observed that a contempt proceeding which was criminal in nature was not a criminal prosecution, and so ordered costs.


case_text: Only a court can decide authoritatively whether or not an administrative decision was legally valid or effective: Plantiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 505-506 [75] - [76] , 513-514 [104]; cf Minister for Immigration v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597 at 605 [13] per Gleeson CJ, 614-615 [51] per Gaudron and Gummow JJ, 618 [63] per McHugh J. 128 One reason why prerogative relief or constitutional writs issue when a decision is found to have been affected by jurisdictional error, even though it is 'regarded in law, as no decision at all' ( Plaintiff S157/2001 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 506 [76] ) is to provide an authoritative and legally binding judicial determination which recognizes that the decision has no legal effect. Of course, it could be said that any such relief or writ is unnecessary because the presence of the jurisdictional error entails the result that there is nothing to quash or upon which to prohibit further proceedings. But the availability of these remedies enables the Court to perform its function of quelling controversies and authoritatively determining that the decision cannot be given effect thereafter. 129 Now when a person such as Mr Seymour, is confronted with a decision which affects him or her or it, two possible avenues of legal challenge are available: one involving the executive power of the Commonwealth through a review in the tribunal under the AAT Act, the other involving the judicial power through proceedings under s 75(v) of the Constitution or s 39B of the Judiciary Act 1903 (Cth) or the Administrative Decisions (Judicial Review) Act 1977 (Cth).


case_text: In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 381-382 [69] - [71] McHugh, Gummow, Kirby and Hayne JJ said: '[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute (see Taylor v Public Service Board (NSW) [1976] HCA 36 ; (1976) 137 CLR 208 at 213 per Barwick CJ). The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole" ( Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26 ; (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South West Water Authority v Rumble's [1985] AC 609 at 617, per Lord Scarman, "in the context of the legislation read as a whole".). In Commissioner for Railways (NSW) v Agalianos ((1955) 92 CLR 39), Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed ( Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias [1917] HCA 41 ; (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48 ; (1985) 157 CLR 309 at 312, per Gibbs CJ; at 315, per Mason J; at 321, per Deane J). [70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals ( Ross v The Queen [1979] HCA 29 ; (1979) 141 CLR 432 at 440, per Gibbs J). Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions (see Australian Alliance Assurance Co Ltd v Attorney-General (Q) [1916] St R Qd 135 at 161, per Cooper CJ; Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 574, per Gummow J). Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other" ( Institute of Patent Agents v Lockwood [1894] AC 347 at 360, per Lord Herschell LC). Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. [71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision ( The Commonwealth v Baume [1905] HCA 11 ; (1905) 2 CLR 405 at 414, per Griffith CJ; at 419, per O'Connor J; Chu Kheng Lim v Minister for Immigraiton Local Government & Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1 at 12-13,, per Mason CJ). In The Commonwealth v Baume ((1905) [1905] HCA 11 ; 2 CLR 405 at 414) Griffith CJ cited R v Berchet ((1688) 1 Show KB 106 [89 ER 480]) to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".' 46 Their Honours held (194 CLR at 384 [78]) that the duty of the court is to give the words of a statutory provision the meaning which the legislature is taken to have intended them to have. 47 In ascertaining what meaning the differing expressions in ss 290(2)(c) and 312(1)(e) were taken by the Parliament to have, it is important to bear in mind that each section is concerned with the impact which a conviction may have upon the Authority's performance of its functions in relation to the registration of a migration agent. First, s 290(2)(c) appears in the principal provision dealing with the function of registration, which is an annual event for every migration agent. Secondly, s 312(1)(e) is relevant to the ongoing function of the Authority under s 303 pursuant to which it has a discretion to cancel or suspend the registration of a migration agent or to caution him or her. The occasion for the exercise of that discretion arises if the Authority is satisfied, inter alia, that: '303 ... (f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance;' 48 The evident purpose of s 312 is to cast an obligation on the migration agent to notify the Authority of the events there enumerated so that the Authority can consider whether to revisit, pursuant to s 303 and the scheme of natural justice in Part 3 of Division 3 of the Act, the question of registration. Thus under s 312(1)(a) the migration agent's bankruptcy must be notified and s 303(e) makes bankruptcy a matter which enlivens the Authority's powers to cancel or suspend the migration agent's registration or to caution him or her. And, s 290(2)(g) requires the Authority to take into account an applicant's bankruptcy at any time in considering whether to register him or her as a migration agent. 49 Additionally, s 312(1) deals with events which occur after registration but which, had they occurred beforehand, would have been relevant for the Authority's consideration in deciding whether to register the person as a migration agent. However, it is important in construing these provisions to consider the fact that a contravention of s 312(1) is an offence of strict liability (s 312(2)), while s 290 creates no offence. 59 Gleeson CJ and Gummow J (200 CLR at 397 [25]) held that the term 'law of the Commonwealth' in s 80 of the Constitution refers to laws made under legislative powers of the Commonwealth. They held that an obligation or liability which had its source in the Constitution itself did not arise under a law of the Commonwealth. They continued (200 CLR at 397 [25]): 'The fact that there are laws made by the Parliament which are declaratory of the power implicit in Ch III of the Constitution or which make provision under s 51(xxxix) of the Constitution incidental to the exercise of that power does not bring the case within s 80. ' Hayne J agreed with Gleeson CJ and Gummow J (200 CLR at 428 [108], 429 [113]).


case_title: R v Almon (1765) Wilm 243


case_title: R v Burdett (1820) 4 B & Ald 95

case_text: I can see no error of law (and a good deal of common sense) in the clear inference drawn by the tribunal that Mr Seymour had purported to act as a solicitor before Blanch J made his order. Mr Seymour had knowledge of the facts and he cannot complain that having failed fully and clearly to provide them to the tribunal, it drew inferences against him: cp: Blatch v Archer (1774) 1 Cowp 63 [98 ER 969]; R v Burdett (1820) 4 B & Ald 95 [106 ER 873]; Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217 at 225 per Mason CJ, Deane and Dawson JJ, 233 per Brennan and Toohey JJ; Azzopardi v The Queen [2001] HCA 25 ; (2001) 205 CLR 50 at 74-75 [65] - [67] per Gaudron, Gummow, Kirby and Hayne JJ; see too Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418E-G per Handley JA; Temora Shire Council v Stein (2004) 134 LGERA 407 at 424 [52] per Giles JA, [56] per Hodgson JA, 425 [62] per Pearlman AJA; see too Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 ; (2000) 200 CLR 121 at 142-143 [51] per Gleeson CJ and McHugh J.


case_title: R v Hull (1989) 16 NSWLR 385


case_text: And, the tribunal's reasons show that it did examine 'the whole position': A Solicitor v Law Society (NSW) [2004] HCA 1 ; (2004) 216 CLR 253 at 266 [18] . Despite Mr Seymour's submissions, I am not satisfied that the tribunal made any error of law in approaching its task of making an evaluation of the particular facts and circumstances before it concerning him and in making its decision as to its satisfaction under s 290(1). The tribunal considered the detailed subjective and objective circumstances of Mr Seymour's offending behaviour (cf: 216 CLR at 268 [22]) in the context of the whole of its reasons, before expressing its conclusion at [37]-[38]. The tribunal is not obliged to set out every detail of its reasoning process ( Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437 at 449 [54] per Gummow and Heydon JJ, Gleeson CJ agreeing at 438 [1] applying Commissioner for Australilan Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592. There Northrop, Miles and French JJ held that a decision-maker could rely on an obvious and natural evaluation of admitted facts to decide that an applicant was not a fit and proper person).


case_title: Reg v Gray [1900] 2 QB 36


case_title: Rex v Tibbits [1902] 1 KB 77

case_text: The significance of their Honours' judgment is that in cases of 'criminal contempt' all such contempts are indictable misdemeanours at common law but are also capable of being punishable summarily. That result followed from the undelivered judgment of Wilmot J in R v Almon (1765) Wilm 243; 97 ER 94; see too: James v Robinson [1963] HCA 32 ; (1963) 109 CLR 593 at 600-602, 612. An indictable misdemeanour was triable as an ordinary criminal offence, on indictment before a jury (see Rex v Tibbits [1902] 1 KB 77 at 87). It is a common law criminal offence which was once described by Lindley LJ as '... the only offence that I know of which is punishable at common law by summary process' ( O'Shea v O'Shea & Parnell (1890) 15 PD 59 at 64, cited with approval in Australian Building and Construction and Builders' Labourers' Federation v David Syme & Co Ltd (1982) 59 FLR 48 at 52; 40 ALR 518 at 521.) And it must follow that where the misdemeanour is punished by summary process, it is no less a punishment that follows conviction for a criminal offence. 71 Nowadays, all charges of contempt are invariably heard by a judge or a full court sitting on a summary trial. The procedure for trial by jury of such a charge or indictment has fallen into desuetude ( Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588 at 595A-D per Street CJ, Hope, Glass, Samuels and Priestly JJA; In re Lonrho Plc [1990] 2 AC 154 at 177B-C; Re Colina; Ex parte Torney [1999] HCA 57 ; (1999) 200 CLR 386 at 393-394 [12] ; Borrie & Lowe: The Law of Contempt (3 rd ed) p 469). In Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 707C-E McHugh JA referred to Rex v Tibbits [1902] 1 KB 77 as the last reported case in England of a trial for contempt on indictment and he said there had not been such a trial in New South Wales in the twentieth century.


case_text: The other relevant provisions of Division 3 of Part 3 of the Act and s 312, which is in Division 5 of Part 3, evince the intention of protecting the public by regulating who should be, and remain entitled to be, registered as migration agents. Those provisions are also penal in nature (even though not each of them creates a criminal offence), particularly s 303, in the sense that they expose persons already registered as migration agents to a penalty for the reasons given in Rich v Australian Securities and Investments Commission [2004] HCA 42 ; (2004) 220 CLR 129 esp at 146 [35]. The penal aspect is attached to these provisions for the purpose of better securing protection of the public from persons who ought not be registered as migration agents. 51 By s 15AA(1) of the Acts Interpretation Act 1901 (Cth) a purposive approach to the construction of the Act is required. That section provides: '(1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.' 85 More recently in Rich v ASIC [2004] HCA 42 ; (2004) 220 CLR 129 at 145 [32] , [33], 148 [41], six justices referred to the difficulties in attempting to classify all proceedings as either civil or criminal. They noted the elusive distinction between 'punitive and 'protective' proceedings. And in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 112-113, Gibbs CJ, Mason, Wilson and Deane JJ said that lying behind punishment for a contempt which involves wilful disobedience to a court order is the very substantial purpose of disciplining the defendant and vindicating the authority of the court. They held that a deliberate commission or omission which is in breach of an injunctive order or undertaking would constitute such wilful disobedience unless it were casual, accidental or unintentional. They said (161 CLR at 113) that such a deliberate commission or omission: '... went beyond a matter of mere civil contempt there opening up ... a jurisdiction in the Federal Court to adopt such measures in its discretion, whether punitive or coercive, which would best deal with the contempt.'


case_text: Moreover, the Authority relied on what Allsop J had said in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [231] - [233] (Weinberg J agreeing at [155]) that even if a jurisdictional error had been established, that may not vitiate the decision if there were a separate and independent reason which supported it. Likewise, the Authority referred to the observations by McHugh J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 184 [80] that discretionary relief for cases in which jurisdictional error had been established may be refused if the applicant had in fact suffered no injustice, for example, because the statutory law compelled a particular outcome. 143 I am satisfied that in [38] the tribunal was expressing an independent and freestanding reason for being satisfied, pursuant to s 290(1), that Mr Seymour was not a fit and proper person regardless of the proper characterization of whether his contempt was a criminal offence. Since there is no error of law in the way in which the tribunal arrived at this conclusion, even if it and I be wrong as to the nature of the contempt, the tribunal's decision should stand: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 184 [80] per McHugh J, 212 [211] per Hayne J with whom Kirby J agreed at 203 [174]; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [231] - [233] per Allsop J, Weinberg agreeing at [155].


case_title: Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 ; (2000) 200 CLR 121


case_text: The Full Court of this court has held in Australian Building Construction Employees' and Builders Labourers' Federation v David Syme & Co Ltd (1982) 59 FLR 48; 40 ALR 518 that the court had no jurisdiction to hear an appeal against a verdict of acquittal on the merits on a charge of criminal contempt. That case had applied an earlier decision of a Full Court in Thompson v Mastertouch TV Service Pty Ltd [No 3] (1978) 38 FLR 397; 19 ALR 547 which had held that the court under s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) had no jurisdiction to hear an appeal against a verdict of acquittal on the merits of a criminal charge. This line of authority was subsequently approved in Davern v Messel [1984] HCA 34 ; (1984) 155 CLR 21 (see esp at 46 per Mason and Brennan JJ). As Bowen CJ, Evatt and Deane JJ pointed out in Australian Building Construction and Builders' Labourers' Federation v David Syme & Co Ltd (1982) 59 FLR 48 at 53; 40 ALR 518 at 522: 'A finding of guilt of criminal contempt is a "conviction" (see Izuora v R [1953] AC 327 at 334-5) of an "offence" (see Shamadasani v King-Emperor [1945] AC at 264 at 270: "so grave an offence as contempt of court"). In Re James W Thompson (1893) 19 VLR 286, the Full Court of the Supreme Court of Victoria (Williams, Holroyd and Hood JJ) held that an appeal against an order attaching the appellant for contempt of court in publishing certain articles in a newspaper commenting on pending proceedings was incompetent for the reason that the proceedings for attachment were "a criminal matter, and therefore there is no appeal to this court". Their Honours commented that the purported appeal was "virtually an appeal from a punishment inflicted by a judge presiding in the criminal court for a criminal offence" (see, also, the equally strong comments of Cussen J in Re Dunn [1906] VLR 493 at 501-2). Acquittal of a charge of criminal contempt after a hearing on the merits is, in our view, an acquittal in criminal proceedings for the purposes of the established principle that no appeal lies from an acquittal on the merits of a criminal charge.' 80 And in Shamadasani v King-Emperor [1945] AC 264 at 270 (in a passage approved by the Court in Hinch v Attorney-General (Vict) (No. 2) [1987] HCA 56 ; (1987) 164 CLR 15 at 90), Lord Goddard also said, in explaining why the Privy Council ordered the Crown to pay costs contrary to the usual practice in criminal cases where the Crown appeared to uphold a conviction: 'Although this matter is one which is known as criminal contempt it obviously is in a different category from an ordinary criminal case.'


case_title: Skipworth's Case (1873) LR 9 QB 230


case_text: Accordingly, I must decide whether Mr Seymour was found by Buddin J to have acted contumaciously in breach of the injunction. A 'civil' contempt can become 'criminal' where the act charged is contumacious in the sense that in doing it there was a direct intention to disobey the order ( Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 541 per McHugh J citing Warrington J's well known dictum in Stancomb v Trowbridge Urban Council [1910] 2 Ch 190 at 194). A breach of an injunction or undertaking to the Court can also be criminal if it is '... an obstinate disregard' of the obligation imposed by or owed to the Court ( Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 111-112). The hallmark of a classification of 'criminal' contempt of this nature is contumacy or defiance ( Australian Consolidated Press Ltd v Morgan [1965] HCA 21 ; (1965) 112 CLR 483 at 489 per Barwick CJ, 501-502 per Windeyer J; Doyle v The Commonwealth [1985] HCA 46 ; (1986) 156 CLR 510 at 516).


case_title: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2


case_title: Temora Shire Council v Stein (2004) 134 LGERA 407


case_text: In Young v Registrar, Court of Appeal [No 3] (1993) 32 NSWLR 262 at 281D-282G Kirby P and at 288A-D Handley JA held that Pt 55 r 14 of the Supreme Court Rules 1970 (NSW), which contained a power to discharge a convicted contemnor from prison, was authorized by an Act, namely the Supreme Court Act 1970 (NSW). They held that this was because, first, the rule had been made as delegated legislation under the Act and, secondly, in The Queen v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10 ; (1956) 94 CLR 254 at 280 Dixon CJ, McTiernan, Fullagar and Kitto JJ had approved of the explanation given by Dixon J in Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34 ; (1931) 46 CLR 73 at 101-102 that a statute may authorize the Executive to make a law i.e. to make delegated legislation and that such a law is made under the statute.