Editorial
By Damien J Cremean
A FAILURE OF KING REX
Professor Lon L Fuller in The Morality of Law (1964) begins Ch 11 of his work with a fairly lengthy allegory based on the unhappy (but fortunately short) reign of King Rex.
Professor Fuller tells us that Rex comes to the throne “filled with the zeal of a reformer” (p 33). He considered that the greatest failure of his predecessors had been in the field of law. He decides to carry out a basic reform and his first act is “dramatic and propitious” (p 34): he announces to his subjects the immediate repeal of all existing law, of whatever kind, so that he can start with a clean slate.
He starts out with a code but owing to his education having been very defective he finds himself incapable of making even the simplest generalisations. He then decides to arbitrate disputes between citizens himself and he hands down literally hundreds of decisions but the state of his education is such that neither he nor his subjects can detect in those decisions any pattern whatsoever.
Error upon error follows and the misadventures of his reign lead him in the end to making no good laws at all. Fuller tells us that Rex’s bungling career misfires in at least eight ways – each of which he ends up saying are hallmarks of the internal morality of law.
One of Rex’s failings is a failure to make rules understandable. Rules which fail to be understandable fail as law in a very basic way. People do not know how to obey them – or whether they fall within them or not. Or, even, what they may mean in a most general kind of way.
Australia, in recent times, seems to be blighted by legislative drafting that leads to obscure provisions that hardly anyone but a lawyer – and, then, not many lawyers either – can understand. This practice should stop – if we are to cling to the notion that ignorance of the law is no defence.
A recent, outstanding example of this, is s 18D of the Fair Work (Registered Organisations) Act 2009 (Cth). The whole section is disgracefully drafted, but it is enough to refer to s 18D(1):
(1) If the Parliament would not have sufficient legislative power to provide for the registration of a particular association of employers if:
(a) a particular class of employers mentioned in paragraphs (a) to (f) of the definition of national system employer in section 14 of the Fair Work Act were included when working out whether some or all of the association’s members are federal system employers;
that definition applies as if it did not include a reference to that class of employers.
This is an unbelievably complex provision. How can trade union officials, members of unions and others ever possibly come to understand it? It is a reading down provision – it seems – but it requires them to be able to decide, to be able to work out its application in a particular case, whether the Parliament would not have had sufficient legislative power to provide for the matter in question. If it would not have had, then the definition (of “national system employer”) applies in the way set out.
Whether Parliament would not have had that power, however, is a question that could tax the minds of each of the learned Justices of the High Court and there is no guarantee that one opinion would be given. But people reading s 18D(1) are expected to be able to guess at this.
Laws like this – and there are many others, particularly in the Commonwealth legislative sphere – reflect badly on current drafting practices. Essentially, they fail the minimum test of being understandable. Administrative law in that sphere must cope, almost on a daily basis, with laws of this kind. That is why it, too, is becoming so exceedingly complex in itself.
Commonwealth legislative drafters need to familiarise themselves with the lessons to be learned from Rex’s disastrous reign. Until they do, and until they take them to heart, our system of law in Australia will be, to that extent, unknowable because it will not be able to be understood. Those responsible for legislative drafting simply must do better than they are doing. They are turning our system of laws into a minefield of complexity.
CONSENT DECLARATIONS
For some time there has been an issue about whether the Federal Court may grant a declaration by consent. The principal reason has been that because the matter is by consent there is, therefore, no contradictor. Lurking behind this may have been an issue that, without a contradictor, there is no controversy. And without a controversy there does not seem to be an occasion arising for the exercise of judicial power.
The Full Court of the Federal Court has now clarified the position in Australian Competition & Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378. The parties had proposed to the primary judge that he make orders, the terms of which had been agreed between them. The proposed orders provided for the imposition of penalties under the Trade Practices Act 1974 (Cth) (now the Competition and Consumer Act 2010 (Cth)), the making of declarations, the granting of injunctions, the undertaking of a compliance program and the publication of corrective advertising. His Honour made orders in the terms proposed, save that he declined to grant declaratory relief. He considered he was bound to follow this course by an earlier judgment of the Full Court in BMI Ltd v Federated Clerk’s Union of Australia (NSW Branch) (1983) 76 FLR 141, in particular, because he considered that declaratory relief could not be granted in the absence of a contradictor and there could not be a contradictor if the parties consented to the granting of the relief.
The Full Court (Greenwood, Logan and Yates JJ) set aside his Honour’s decision refusing the grant of declaratory relief and, in lieu, ordered that there should be declarations in the terms proposed by the parties. The Full Court (at [30]) disagreed with his Honour’s description of the joint judgment of Keely and Beaumont JJ in BMI as “analytically opaque”. In BMI (at 153-154) those learned judges had said:
In our view, not only is there no contradictor in the present case but also the question now put is academic and as a matter of discretion, the court should not grant declaratory relief in such a case, even where it has a statutory jurisdiction to do so.
The Full Court said that to the extent that Keely and Beaumont JJ suggested that the absence of opposition by an interested party to the declaratory relief sought, meant there was no proper contradictor (thus disentitling an applicant to the grant of relief), they evidenced a misunderstanding of the explanation given by Lord Dunedin in Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd[1921] 2 AC 438.1 Lord Dunedin had said (at 448):
The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought.
To pick up Lord Dunedin’s last comment, the Full Court in MSY Technology said (at [30]) that “the MSY parties had an interest to oppose the declaratory relief sought” (emphasis added). It followed that this was sufficient to make them a proper contradictor. Therefore, it could not be said that there was any want of power to grant declaratory relief – even though there was no continued opposition to that relief being granted. The Full Court added, though, the granting of such relief is always discretionary and that no hard and fast rule can be laid down.
Despite this last caveat, the Full Court has cleared up this issue considerably. It is in everyone’s interest to give effect to properly negotiated consent orders. Little is to be gained by doing otherwise. There is a clear saving in court time and other advantages.
STOLEN VALOUR
The Supreme Court of the United States has handed down an interesting “free speech” decision in United States v Alvarez 567 US (2012).2
In issue in the case was whether the Stolen Valor Act 2005 (US) (18 USC s 704) infringed the First Amendment of the US Constitution which prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances. Alvarez had claimed he had been awarded the Congressional Medal of Honour. This medal (established in 1861) is the highest military award for valour against an enemy force. So prestigious is it that it has been given only 3,476 times. It is reserved for those who have distinguished themselves “conspicuously by gallantry and intrepidity at the risk of … life above and beyond the call of duty” (10 USC s 3741 (Army); s 6241 (Navy and Marine Corps); s 8741 (Air Force); 14 USC s 491 (Coast Guard)). One was given, for example, to Desmond Doss who served as an army medic on Okinawa and who on 5 June 1945 rescued 75 fellow soldiers; after being wounded, he gave up his own place on a stretcher so others could be taken to safety (see Willbanks J (ed), America’s Heroes (2011) pp 88-90).
The claim by Alvarez was false and he was charged under s 704 of the Stolen Valor Act. His claim that the statute was invalid under the First Amendment (as abridging freedom of speech) was rejected by the US District Court for the Central District of California. However, the US Court of Appeals for the Ninth Circuit, in a decision by a divided panel, found the Act was indeed invalid under that provision and reversed Alvarez’s conviction. A re-hearing was denied but the US Supreme Court granted certiorari.
The Supreme Court (Alito J dissenting, joined by Scalia and Thomas JJ) held that the statute did violate the First Amendment. Kennedy J (joined by Roberts CJ, Ginsburg and Sotomayor JJ) announced the judgment of the court and Breyer J (joined by Kagan J) filed a concurring judgment.
Kennedy J began by saying of Alvarez: “Lying was his habit”. But he said: “Fundamental constitutional principles require that laws enacted to honor the brave must be consistent with the precepts of the Constitution for which they fought”. When content-based speech regulation was in question, exacting scrutiny was required: “Statutes suppressing or restricting speech must be judged by the sometimes inconvenient principles of the First Amendment”.
Judged by this measure the statutory provisions under which the respondent was convicted were invalid and his conviction had to be set aside. Quoting Ashcroft v American Civil Liberties Union 535 US 564 at 573 (2002) – that “as a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, it subject-matter, or its content” – the government bore the burden of showing due constitutionality. This, it had failed to do. False statements as such simply were not within any of the recognised exceptions to the prohibition in the First Amendment. He concluded by saying: “The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace.”
There are many who could disagree with this ruling. For it seems to give constitutional licence to anyone who wishes to falsely claim, anywhere and at any time, to have been given the Medal. Indeed this very point was made by Alito J who said: “Only the bravest of the brave are awarded the Congressional Medal of Honour, but the Court today holds that every American has a constitutional right to claim to have received the singular award.” Striking down the Stolen Valor Act, it could be said, leads to the First Amendment shielding liars. And, Alito J said, “the lies proscribed by the Stolen Valor Act inflict substantial harm”. Not only might such harm be tangible (eg, obtaining financial or other material rewards) it could also be intangible (in debasing the distinctive honour of the Medal).
The decision in Alvarez is, perhaps, at the extreme of what should be allowed by the First Amendment. It shows also, though, the power of judicial review: a statute passed by Congress being held invalid by the judicial branch. It shows also that rights, expressed in abstract terms, and generalities, often may lead to surprising negative outcomes.
The citation for this editorial is (2012) 20 AJ Admin L 3.
1. Adopted by Gibbs J in Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421.
2. See Supreme Court opinion, http://www.supremecourt.gov/opinions/11pdf/11-210d4e9.pdf.
Thomson Reuters is pleased to announce the appointment of Associate Professor Beth Gaze as the joint Work and Employment Section Editor for the 
