Case: Milburn v Newton Colliery (1908) 52 S.J. 317 Roach v Electoral Commission [2007] HCA 43 ; (2007) 233 CLR 162
Outcome: cited
relied upon Roach v Electoral Commission [2007] HCA 43 ; (2007) 233 CLR 162. That case was concerned with provisions of the Electoral Act 1918 (Cth) which disqualified as voters at federal elections persons who were serving sentences of imprisonment regardless of duration for offences against the laws of the Commonwealth, a State or a Territory. In the course of his reasons, Gleeson CJ said at [12]: The preamble to the Australian Citizenship Act 2007 (Cth) declares that Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and the Australian citizenship is a common bond, involving reciprocal rights and obligations. The reference to the reciprocity of rights and obligations is important in the context of membership of the community. Serious offending may warrant temporary suspension of one of the rights of membership, that is, the right to vote. Emphasis upon civic responsibilities a the corollary of political rights and freedoms, and upon society's legitimate interest in promoting recognition of responsibilities as well as acknowledgment of rights, has been influential in contemporary legal explanation of exclusions from the franchise as consistent with the idea of universal adult suffrage. In my opinion, those remarks have no relevance to the issues under consideration. Dr Toben has not been deprived of any rights attaching to citizenship. The declaration in paragraph 1 of the September 2002 orders is that the respondent in publishing the AI Document engaged in conduct rendered unlawful by Part IIA of the Racial Discrimination Act . The injunctions in paragraph 2 require him to remove from the Adelaide Institute website the AI Document and any other material which convey the imputations to which reference is made. That order contemplates that anything published which contains those imputations would contravene s 18C of the Racial Discrimination Act . The injunctions in paragraph 3 make the same assumptions. The injunctions restrain him from engaging in conduct which the Racial Discrimination Act renders unlawful. No citizen is entitled to engage in similar unlawful conduct because of the provisions of s 18C of the Racial Discrimination Act . Dr Toben has not lost any of the incidents of citizenship which are given by the Citizenship Act. Of course, the November 2007 undertaking is in a different class. The respondent gave the undertaking himself. He has always been aware of that undertaking and its effect. So much is clear from his attempting to resile from the undertaking. An undertaking given to the Court is punishable in the same way as if it were an order of the Court. It is a contempt to breach an undertaking the same as it is to disobey an order of the Court: Biba Ltd v Stratford Investments Ltd [1973] Ch 281 ; Windsurfing International Inc v Sailboard Australia Pty Ltd [1986] FCA 384 ; (1986) 19 FCR 110. A breach of an undertaking will involve the same consequences for the party in breach as disobedience of an order of the Court: Milburn v Newton Colliery (1908) 52 S.J. 317. Where the undertaking is given to the Court by the person who is to be bound by the undertaking, the undertaking does not need to be served upon that person before contempt proceedings for a breach of that undertaking are commenced. Order 37 rule 3 only applies to orders, not undertakings: Windsurfing International Inc v Sailboard Australia Pty Ltd [1986] FCA 384 ; 19 FCR 110. Separate charges for breaches of the September 2002 orders and the November 2007 undertaking