Levy v The State of Victoria and Ors M42/1995 [1997] HCATrans 88 (4 March 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M42 of 1995

B e t w e e n -

LAURENCE NATHAN LEVY

Plaintiff

and

THE STATE OF VICTORIA

First Defendant

JOHN THOMAS GATES ROBINSON

Second Defendant

ROBERT BRIAN WILBY

Third Defendant

Demurrer

Office of the Registry

Sydney No S109 of 1996

B e t w e e n -

DAVID RUSSELL LANGE

Plaintiff

and

AUSTRALIAN BROADCASTING CORPORATION

Defendant

Case Stated

BRENNAN CJ

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 4 MARCH 1997, AT 10.23 AM

(Continued from 3/3/97)

Copyright in the High Court of Australia

_________________

BRENNAN CJ: Yes, Mr Reynolds?

MR REYNOLDS: Your Honours, at the conclusion of the hearing yesterday your Honour Justice Gummow asked me - - -

BRENNAN CJ: I think before you commence perhaps the Solicitor- General for Victoria might have some further thing that he wishes to offer to us.

MR GRAHAM: Just very briefly, if the Court pleases. Your Honour the Chief Justice yesterday at page 63 of the transcript and again at page 82 asked us to consider the question whether the implications of the decisions which we challenge may be said to involve risks to the Constitution coherence, and also to the proper application or development of the constitutional law of the country. I indicated to your Honour that I had in mind something that your Honour the Chief Justice had said in addition to the matters which we had drawn attention to in our written submissions at page 19 concerning the judgments of the Court in McGinty.

We had cited passages in the judgment of Justice McHugh in McGinty at pages 343 to 349 and a passage in the judgment of Justice Gummow in McGinty at pages 390 to 391. I do not wish to rehearse the observations which we made yesterday concerning what we said were the errors which we respectfully advanced in the reasoning in the majority judgments in Theophanous and Stephens, but we would draw attention to the fact that not only did Justice McHugh at page 345 in McGinty indicate that it was not legitimate to draw upon external sources from the Constitution in order to discover an implication in the Constitution, your Honour the Chief Justice in the same case at pages 295 and 296 also suggested that it was not permissible to rely upon external sources in the process of discovering implications affecting the interpretation of the Constitution. That was the passage I had in mind when I responded to your Honour in that way at page 62.

We have already said that the implications relied upon by the majority in Theophanous and Stephens suffered from that quality of involving reliance upon external sources and we have also respectfully criticised that reasoning because it relies upon imprecise concepts of representative democracy and representative government which do not provide the sort of secure foundation that an implication in the Constitution has traditionally been thought to require.

As to the question whether this type of reasoning gives rise to some risk in the development of the constitutional law of this country, we would simply make a few brief points. Firstly, we would draw attention to what is said in the written submission filed on behalf of the plaintiff in the Lange matter where in paragraph 3.4 a succinct statement, which we would respectfully adopt, appears. I will just read a couple of sentences to save your Honours the trouble of finding them amongst the material. It is said:

Possible future consequences of the reasoning of the majority in Theophanous include the implication of further rights based upon the concept of representative democracy. The principles articulated by the majority in Theophanous also have the potential to expand beyond defamation into other areas such as freedom of movement and association, contempt -

that is contempt of Court -

and governmental secrecy -

and we would respectfully adopt that as part of our own case. Whilst it is perhaps a little idle to speculate upon the full ramifications of the judgment of the majority in Theophanous and Stephens, one can readily formulate areas where those doctrines could be relied upon, for example, planning laws which affect the publication of signs or advertisements concerning political matters; other forms of advertising controls to be found in trade practices legislation, for example; the laws which control the contents of books and publications and films; the laws which are designed to assure privacy; and indeed provisions in the Commonwealth Electoral Act itself relating to the publication of material both generally and in the vicinity of polling booths.

DAWSON J: But the reasoning goes much further than that even if you are going to complain about it.

MR GRAHAM: Certainly.

DAWSON J: I think Justice McHugh pointed out you will find indications that the Constitution recognises private enterprise. If you take those provisions and say the Constitution embodies private enterprise, private enterprise, in my view, involves this and this and this, and you read it back by implication. It is a reasoning process which offers boundless opportunities well beyond freedom of speech.

MR GRAHAM: Yes. Your Honours, just perhaps to take what Justice Dawson said one step further, one can find the concept of responsible government adverted to in the Constitution in section 64, that could be developed. One can find the concept of parliamentary control over the public purse embodied in sections 81 and 83 of the Constitution, that might be developed as well. Finally, we would simply add that everything that is said in this field in relation to the Commonwealth Constitution seems legitimately to be capable of being translated into the interpretation of the Constitutions of each of the States as well.

McHUGH J: Once you depart from the text I think you can make an equally persuasive argument that the Constitution establishes a free enterprise capitalist society and that no parliament can interfere or impair the operation of that free enterprise system.

MR GRAHAM: Certainly, your Honour. Indeed, that view prevailed in this Court, perhaps not being terribly explicitly articulated, but it can be said to have influenced decisions.

McHUGH J: Certainly in respect of section 92.

MR GRAHAM: Section 92 I had in mind in making that observation.

KIRBY J: The question is whether it is a departure from the text or whether it is implied in the text. The simplest written document will have implications. The Constitution will not be immune from them; it has not been in this country.

MR GRAHAM: Your Honour, we have no quarrel with that proposition at all, but the real question is, can it properly be said that the implications relied on truly arise from the text of the Constitution or owe their origins to concepts, understandings, principles, call them what you will, which are part of our own comprehension of the Constitution but not matters which are implicit in its own text.

BRENNAN CJ: Or its structure.

MR GRAHAM: Or its structure and one should always add that, of course, because it is a particular feature of constitutional interpretation which perhaps does not apply in relation to statutes and contracts.

GUMMOW J: How would the Communist Party Case fit in with all of this, Mr Solicitor? There are references in the Communist Party Case to a rule of law and freedom of association too. On the face of it, of course, it is concerned only with the defence power.

MR GRAHAM: Your Honour, if the Communist Party Case had come before the Court at the time when Theophanous and Stephens were being considered, then the path of reasoning, at least of some of the Justices, would have been different.

GUMMOW J: Yes, that is really what I am asking you.

MR GRAHAM: Whether the results would have been unanimously the same is perhaps a matter of too much speculation. But one can certainly well imagine that some members of the Bench would have been attracted to reasoning of the kind that was favoured by some of your Honours in Theophanous.

DAWSON J: But really, this ignores that there is such a thing as freedom of association and freedom of speech in this country, and we value them highly. But they are in the common law by reason of the fact that they are assumed.

MR GRAHAM: They are assumed, and they are not inhibited.

DAWSON J: It is a fallacy to imagine that we do not value freedom of speech just because it is not in the Constitution. We place our faith in the parliaments and in the common law and, when you get to the defence power, it is a question of whether or not it extends to interfering with that freedom of speech which we do have and do value.

McHUGH J: It is a question, as Justice Dawson says, of whether it is a constitutional right. There are a lot of things that judges might like. One man, one value. I have been a passionate believer in that since I was 19 years of age, but I could not find anything in the Constitution in McGinty's Case that would support that view. Merely because these things are assumed does not necessarily mean that they are in the Constitution.

MR GRAHAM: Your Honour, we can only respectfully agree that is the common starting point that we have with your Honours Justices Dawson and McHugh, at least.

KIRBY J: I notice, Mr Solicitor, that in Stephens the majority decision referred to the implication as deriving not only from the federal Constitution, but also from the State Constitution. That is at 232. Do you have anything to say about that? Today, I think, is the only time you have mentioned Stephens.

MR GRAHAM: Your Honour, we do not, apart from saying this, that the statement can readily be explained by the presence in the Western Australian Constitution of section 73, which is a special provision from which it is possible, perhaps, to draw some implication. But no such provision is present in - as far as I am aware - any other State Constitution; certainly not in the Victorian Constitution. But even if it were present, it would not avail Mr Levy. If the Court pleases, those are the additional matters which I wished to place before the Court, and I thank the Court for the opportunity of doing so.

BRENNAN CJ: Thank you, Mr Solicitor. Mr Reynolds.

MR REYNOLDS: Your Honours, at the conclusion of the hearing yesterday your Honour Justice Gummow raised with me a couple of matters. Is it convenient for the Court if I proceed directly to deal with those?

BRENNAN CJ: Yes, Mr Reynolds.

MR REYNOLDS: Your Honour really pointed to what on one view is an implicit assumption in the way these questions have been framed on page 68 of the case stated book. Can I indicate what the implicit assumption is in those two questions. It is that the common law of defamation and, in particular, privilege would be in some form relevant to every publication wherever it occurred around Australia. The reasoning behind that assumption would be that if the rule in Phillips v Eyre applied the common law would be relevant to publications outside Queensland and Tasmania on any view. It would be relevant to publications in Queensland and Tasmania because the common law of qualified privilege is part of the lex fori applicable in New South Wales.

The question that I need to deal with to answer your Honour's question is, first of all, is that assumption right or wrong, and secondly, if it is wrong, what should be done about it. Your Honour, there are two possible bases upon which that assumption would be wrong. The first is if the lex loci delicti alone was the lex causi in respect of publications in Queensland and Tasmania. One reason that that may be the case is if McKain v R.W. Miller had been decided the other way and if the Constitution provided, in effect, via section 18, for the application of the lex loci delicti. That was a line of reasoning which was rejected in that case and I do not seek to leave to reopen McKain.

The other possibility derives from section 56 of the Judiciary Act, which your Honours, I gather, have considered recently in Mewett's Case. The argument would be that because the ABC can be treated as the Commonwealth for that purpose - at least arguably - that the effect of section 56 may be to oust the rules in Phillips v Eyre and make the lex loci delicti applicable alone so that the common law would be irrelevant to publications in Queensland and Tasmania. I gather - I do not know - that that is a matter which has been agitated in Mewett, namely, the construction of section 56 and whether it has that effect.

So your Honour raises, may I respectfully submit, very properly a matter which needs to be addressed in terms of the framing of these questions. It has practical significance because it would be possible for Mr Lange to submit that if the publications were broken up State by State, that even if the common law defence was good in law outside Queensland and Tasmania, it would be bad in law qua publications in Queensland and Tasmania. Why? Because the Codes apply exhaustively in those two States.

GUMMOW J: That is the question I was trying to get to, so what I am anxious to find out is - and it is Mr Spigelman's problem, I suppose, as much as yours - is whether paragraph 6 of the defence is to be treated by us as involving, vis-a-vis Queensland and Tasmania, the question of the application of any equivalent to qualified privilege at common law under the Codes. So we have to worry about the Codes as well as the common law. That is the practical question I am trying to get to.

MR REYNOLDS: Your Honour, I am placed, in one sense, with a dilemma in that I could argue that section 56 had that operation and I might then get an answer which favoured my client in respect of Queensland and Tasmania, but I have to confess that the reason the case is here and the reason that it has been framed in this way is to get out the question of whether this is a good defence at common law.

GUMMOW J: Common law alone?

MR REYNOLDS: Common law alone. I have spoken to my learned friend, Mr Spigelman, about it.

GUMMOW J: I just mention it - if I could just interrupt you, Mr Reynolds, the Commonwealth's submissions deal with the Codes. That is one of the things I have got in mind.

MR REYNOLDS: Yes, your Honour.

GUMMOW J: I know they are only an intervener, but they raise the question of the Codes and whether there is some equivalent treatment at common law.

MR REYNOLDS: Your Honour, the Codes arise in a couple of ways in my argument, but this present point does not impinge upon my argument and, to the best of my recollection, on the Commonwealth's either. Your Honour, we are obviously in the Court's hands, but I have spoken to my learned friend about how this might possibly be dealt with and one way of dealing with the issue would be for the Court to effect an amendment to the second question in the stated case. If I can take your Honours to that. That question says - it is on page 68 of the case stated book:

Is the defence pleaded in paragraph 6 of the Defendant's Amended Defence bad in law?

If the words "in respect of the publication of the matter complained of in New South Wales" were inserted at that point my learned friend and I think that that would probably cure any difficulty.

KIRBY J: You are asking us to insert that in the stated case, are you, by consent?

MR REYNOLDS: Your Honour, I have not been quite that bold. I have suggested that it is a possibility and left it to your Honours as to whether or not the amendment is to be effected.

KIRBY J: In both (1) and (2) or only in (1)?

MR REYNOLDS: No, only in (1) because - I am sorry, only (2).

KIRBY J: Would that not be relevant to the question of whether the Court would, if it be required, grant leave to reopen to deal with the matter just touching the law in New South Wales?

MR REYNOLDS: Not in my submission, your Honour.

KIRBY J: This matter has come to the Court on a larger issue, has it not?

MR REYNOLDS: I am sorry, I cut across your Honour. I did not hear that.

KIRBY J: I say this matter has come to the Court on a larger issue.

MR REYNOLDS: Your Honour, the constitutional defence, if I can call it that, is not touched by this present discussion. That still remains for consideration. So far as the common law defence is concerned, although the question would be limited to publication in New South Wales, the efficacy, if I can put it that way, of the defence is relevant in all States other than Queensland and Tasmania, so that it is still an important question virtually Australia-wide and also, of course, important in Queensland and Tasmania, where the Commonwealth is not a party, where the courts would be applying the lex loci delicti as well as the lex fori.

BRENNAN CJ: If the question were so limited in respect of question (2), what role would the New South Wales Defamation Act play?

MR REYNOLDS: The effect of the Defamation Act, your Honour, is to leave the common law of qualified privilege untouched. I have not got the relevant section to hand. I think it is section 11 says that, except in so far as changes are effected by this Act, the common law remains the same. So that there is no relevant difficulty which I can identify arising out of narrowing it to that particular statutory context.

McHUGH J: What I am not quite clear on at the moment is why the defence of qualified privilege is not a good defence to all your actions, even though you are suing in other States, because do you not have to show under the rules of private international law that you would have had a good action in Queensland but you also have a good action in New South Wales based on those Queensland publications, so that the defendant can raise the New South Wales defence of qualified privilege as a bar to publication in all States?

MR REYNOLDS: Your Honour, perhaps I did not put it very clearly before. The effect of what I understand one view of section 56 is is to eliminate the common law of qualified privilege as being relevant via the lex fori in New South Wales. If that is so, it would mean that qua publications in Queensland and Tasmania, the common law of qualified privilege would be utterly irrelevant.

McHUGH J: Yes. I just want to check my recollection of Musgrave. Is there anything later than Musgrave on this problem in relation to defamation action?

MR REYNOLDS: Not I think in relation to defamation, your Honour. We have tried to approach this, if I may say so, on a practical basis dealing with it overnight to try and resolve the issue rather than to introduce possible additional arguments into the matter. I think the amendment we are suggesting will obviate the difficulty.

GUMMOW J: Yes, but the net result would be some distributive operation to paragraph 6 because we would not be deciding paragraph 6 in its operation to Queensland and Tasmania.

MR REYNOLDS: That is so, your Honour. What the Court could have done was to split up the question qua each State and Territory and decide each of those areas individually and it would have been open to me, even if I had failed in respect of a common law qualified privilege defence - in other words, it was good in law - to argue section 56 and say that in respect of Queensland and Tasmania it is bad in law. Why? Because by reason of section 56 the Codes apply and therefore common law is irrelevant.

BRENNAN CJ: The question is: do you make a formal application to amend question 2?

MR REYNOLDS: Yes, your Honour.

BRENNAN CJ: Is that consented to?

MR SPIGELMAN: Yes, your Honour.

BRENNAN CJ: The form of the amendment that is sought is the addition of the words "in respect of the publication in New South Wales"?

MR REYNOLDS: "In respect of the publication of the matter complained of in New South Wales".

BRENNAN CJ: Very well. I suppose formally it is an order which I should make, having stated the case, that I shall make it.

MR REYNOLDS: Thank you, your Honour. I think before your Honour Justice Gummow raised the section 56 difficulty with me yesterday we had been looking at the orders in Theophanous which are to be found in the report at pages 208 to 209. I will not repeat which I said yesterday but there are a couple of additional points which should be made. The first is, if your Honours go to page 209 point 3 it is stated that one of the requirements is:

(c)..the publication was reasonable in the circumstances.

That word "reasonable" has, as it were, a definition clause which is to be found in the joint judgment at page 137. It is not simply a matter of interpreting that word as if it was in a statute without definition. If your Honours go to page 137 the joint judgment at about point 2 talks about the requirement of reasonableness which has two limbs. One can either show that "some steps" were taken "to check the accuracy of the impugned material", but secondly, and perhaps more importantly, it is said that the requirement can be made out by the defendant "establishing that it was otherwise justified in publishing without taking such steps or steps which were adequate", which, in one sense, leaves the question of reasonableness very much at large. The other aspect of reasonableness that I should draw your Honours' attention to in that context is that on page 138 at about point 7 it is stated:

Whether a publisher has acted reasonably must be a question of fact in every case.

I will be coming back to this later on in my submissions but I draw your Honours' attention to it because this notion of reasonableness, if defined as "otherwise justified" and determined by a tribunal of fact, perhaps a jury, a very broad discretionary power indeed.

One cannot simply look at the orders and treat reasonableness or the requirement that a publication be reasonable as if that is in a statute. One has to read it with the definition clause.

TOOHEY J: But wherever the word appears in the statute, it is to some extent open ended, is it not?

MR REYNOLDS: Yes, your Honour, but with two very important qualifications: that when it is in a statute ultimately it is a matter of construction, and possibly a very difficult matter of construction, but is a matter of construing the intention of Parliament which very much narrows the focus. Secondly, and linked with that, is that a judge looking at that question could have resort to extrinsic material to try and identify, for example, the mischief et cetera at which the provision was aimed. So that there is much greater scope when one is talking with a statute for narrowing the concept of reasonableness.

BRENNAN CJ: But if you use the term "reasonable", whether in a statute or at common law, and that is identified as a question of fact, then does it not become a question for the current community standards to determine its content?

MR REYNOLDS: To some extent, your Honour - we are talking about a statute - but here, the point I am trying to make is that there is no - - -

BRENNAN CJ: I am putting it to you more broadly, that is, statute or common law, for example, negligence; is it not a question of what is current in the community standards?

MR REYNOLDS: To a large extent, yes, your Honour, for example, in the law of negligence.

BRENNAN CJ: Does it go beyond that?

MR REYNOLDS: If one focuses on common law, it will, to a very large extent, perhaps exclusively depend upon current community standards. It is, as the judges say, a jury question and, therefore, a jury would pronounce on it using their broad general knowledge of community standards. So far as the statute is concerned, that principle would also apply to some extent, but I would respectfully submit narrowed in the way that I tried to indicate to his Honour Justice Toohey.

TOOHEY J: Is that borne out by the authorities? I do not want you to take us to them, Mr Reynolds, but in the judgment in Theophanous reference is made on the page in question to section 22 of the Defamation Act of New South Wales in some of the cases in which reasonableness has been considered. How is it being treated, speaking generally, in relation to section 22?

MR REYNOLDS: Judges have erected a series of tests which make it a more onerous requirement than negativing malice. Your Honour is testing my recollection a little. Perhaps one your Honours may be able to assist me here, but by recollection is that honest belief in truth, for example, is a matter directly relevant under section 22 to reasonableness, and there has been some attempt by the judges to expand upon that definition in the context of that section but, if I may say so, the judges, in construing section 22, have given a very narrow ambit to the section. From my recollection, I think only two defendants, possibly three, have ever succeeded with that defence in the State of New South Wales, certainly apropos of a media publication.

TOOHEY J: It does not really dispose of the matter put to you by the Chief Justice, namely, that wherever the term appears, whether it is in common law or in a statute, in the end, it must reflect prevailing community standards.

MR REYNOLDS: Your Honour, I do not dispute that except that apropos of statutes, I have tried to limit that concept in the way I mentioned to your Honour. I do not dispute the general proposition.

BRENNAN CJ: I suppose the problem is, what is the community standard which can be predicated to the publication?

MR REYNOLDS: Your Honour, if I can anticipate my argument a little. One of the difficulties that I am going to suggest with the Theophanous decision is that statutes in the common law are read down by the application of this defence and not read down, I submit, in a very precise way, but by virtue of, as your Honour has said, current community standards and that is not an exercise which the Court would normally permit on the reading down of a statute. I would rather not, if I may say so, deal with that question now, but I am simply flagging it as saying that it is an important question for my submissions later on.

GUMMOW J: As I understand it, what you are saying is the notion of the publisher having acted reasonably in each case as the question of fact becomes a constitutional fact.

MR REYNOLDS: That is another way of putting it.

GUMMOW J: And you are saying that is an undesirable thing.

MR REYNOLDS: Well, it is either a question of non- constitutional fact, where the jury or tribunal of fact is at large to insert their views of society. Alternatively, it is a constitutional fact where, if the judge were determining it, or giving the jury instruction as a matter of law, he would have to work out what the content of the notion of reasonableness is by working back from the words of the Constitution which, I submit, is a very difficult - perhaps an impossible task.

It would be one thing to specify in very precise terms how this defence operated and read down statutes accordingly. It is an altogether different matter for, I submit, the Court to render statutes non-applicable and leave a very large number of doubt about the non-operation of the statute. At any rate, I will be coming to that later on, but I am simply flagging that as - that it is not an idle observation, that it is important for my submissions later on.

Your Honour Justice Kirby raised yesterday the question of the precise ration of Theophanous and I would like to direct my submissions to that question briefly. I mentioned yesterday that Justice Deane, because of his reasoning, was put in a situation of some difficulty, and the reason for that is that, in broad terms, his Honour's constitutional defence, if I may call it that, was both broader and narrower than the defence articulated in the joint judgment. It is narrower because his Honour restricted the defence as being applicable only where certain sorts of person were plaintiffs. It is broader in the sense that the three qualifications which are in the orders were, his Honour held, not relevant and that the defendant did not have to make them out.

So, his Honour was in a difficult position in terms of how the answers to the questions were to be treated by him, and he dealt with this difficulty on page 188 of the judgment, at about point 3 on the page, and his Honour there says:

Nonetheless, I necessarily agree with their Honours -

that is the joint judgment Justices -

that the constitutional implication precludes the imposition of liability in damages under State defamation laws to the extent to which they would exclude it in a case such as the present.

So that, the orders in Theophanous are not only narrowed by reason of the definition of reasonableness, they are also narrowed by reason of the nature of his Honour's agreement with the question stated. Of course, if his Honour had not have done this, it would have led to a situation where no answers could have been given to the case stated. So, that is the dilemma his Honour was facing. It is necessary for me then to identify what his Honour means by "in a case such as the present." Just before I do that, I should read the following sentence:

That means that majority support for the operation of the implication in a case such as the present exists for, but is limited to, that attributed to it by -

the joint judgment. He says:

the appropriate course for me to follow is to lend my support for the answers which their Honours give -

in those circumstances.

It is necessary for me to identify what his Honour means "in a case such as at present". That is made easy for me because his Honour, at page 179, at the bottom of the page at about point 8, characterises the nature of the present case in these words. He says:

The relevant category in the present case consists of statements about the conduct or consequent suitability for office of a member of the Commonwealth Parliament. I confine the relevant category to statements about official conduct or consequent suitability for office for the reason that, in my view, statements about the private conduct or affairs of a member of the Parliament fall into a different category, except to the extent that they bear upon the propriety, appropriateness or significance of official conduct.

Now, the ratio then derived from the orders has also to be read down by reference to that passage, not only to include the statement about members of the Commonwealth Parliament but also the caveat, as it were, arguably about private conduct. So that again the orders in Theophanous have to be read, or the answers to the questions stated have to be read with that caveat on one view in mind. The position does not end there because of Stephens Case - - -

KIRBY J: I just ask you, there is no such limitation in the majority judgment, is there?

MR REYNOLDS: No, your Honour, there is not. Further, if I can just anticipate things a little if your Honour is concerned about that question, there is reference in the majority judgment at the bottom of page 124 - there is a quote from Alexander Meiklejohn and there is a reference to privacy. These are some words we will be coming back, at point 8:

The problem is, of course, that what is ordinarily private speech may develop into speech on a matter of public concern with a change in content, emphasis or context.

So that their Honours leave open the question of whether purely private matters may come within the freedom. Of course, purely private matters may affect the suitability of a person or office on one view. If I can go to Stephens Case, it is important also to refer to that here, because his Honour Justice Deane's - - -

GUMMOW J: Just before you do that, what do you say the ratio is of Theophanous?

MR REYNOLDS: That is a very difficult question, your Honour. It has to be read down so that political communication or political discussion is read down at least to confine it to - and I will just locate the page, if I may - read down to, using the words of page 179:

statements about the conduct or consequent suitability for office of a member of the Commonwealth Parliament.

KIRBY J: Is that the correct method of deriving the ratio because the members of the majority, or the majority judgment did not confine their principle to that concept?

MR REYNOLDS: I accept that, your Honour, but there were only three Justices.

KIRBY J: Yes, but their concept may not have - it secured the order but the question is is that part of the binding principle that we are being asked to overrule because they may not have agreed to the limitation of the concepts. They do not say anything about it. Therefore, all we have is the order which resolved the particular case but we are being asked to overrule a constitutional principle. I would like to know what I am being asked to overrule.

MR REYNOLDS: Well, your Honour, I have endeavoured to answer that. It is the orders in Theophanous, subject to two caveats, the first the definition of "reasonableness"; second, the words "political discussion" are read down in accordance with that passage on page 179.

TOOHEY J: I am just having difficulty with the distinction that you are drawing, Mr Reynolds, between what Justice Deane says at the foot of page 179 and what is said in the joint judgment on 124. Could you just put it to us again?

MR REYNOLDS: Your Honour, this is, if I may say so, something I will be coming to later because - - -

TOOHEY J: If it is more convenient to deal with it later, by all means.

MR REYNOLDS: If your Honour does not mind, I deal with what I might call the privacy angle in some detail in my later submissions.

TOOHEY J: Leave it until then, Mr Reynolds.

MR REYNOLDS: If I can move to Stephens' Case. His Honour was in the same dilemma there, and that dilemma is reflected on page 257 of the judgment. His Honour there says, at about point 2, that the effect of his Honour's holding in Theophanous was restricted to:

the suitability for office or official conduct of a member of the Commonwealth Parliament or other holder of high Commonwealth office.

There is an argument referred to by his Honour there that his Honour's reasoning would also rope in holders of high Commonwealth office. Further down the page his Honour confines his agreement in this case to statements or comments - it is important:

statements or comments about the suitability for office or official conduct of a member of a State Parliament or other holder of high State public office.

So the ratios of Theophanous and Stephens are either confined to, first, members of the Commonwealth Parliament and members of the State Parliament or, secondly, more widely, holders of high Commonwealth or State public office, and that would include members of the Parliaments.

KIRBY J: In this case Justice Deane seems to be saying, "Because my views did not prevail and for the practical reason of getting orders it would be inappropriate for me to adhere to them," and, therefore, I take him to, as it were, be withdrawing his insistence of the limitation of the relevance of high office and agreeing in the orders and reasons of the majority to that extent.

McHUGH J: The problem is that he expressly agrees only in the answers, "I express my concurrence in the answers", not the reason.

MR REYNOLDS: So it is a matter of a little difficulty, but I think your Honours can see what has happened and the position that Justice Deane was in. Either the case was to have no ratio at all or his Honour had to try and approach it in a practical sort of a way to try and secure a majority, but he is in a situation, I respectfully submit, where his Honour has withdrawn his reasons so as to agree with three other Judges to create a majority.

KIRBY J: Is it enough for your purposes that these cases have no ratio, that there is no ratio in them, that it has been assumed and for practical reasons the media and journalists of Australia have assumed that the ratio is that in the reasoning of the majority but that, in fact, when analysed by legal processes, tedious though they may be, there emerges no ratio in them because the Judges were seriously divided in the articulation of the principle?

MR REYNOLDS: Your Honour raises, if I may respectfully say so, a very important question because there is an argument available to my client along those lines. It cannot be derived from the way these orders are framed and the way this agreement is dealt with, but the important thing will be that when we come to examine the reasoning of Justice Deane and the reasoning in the joint judgment, I am going to be submitting that if in any respect the reasoning in the joint judgment is different - and I will be submitting that arguably it may be to some extent - then that will have the effect that your Honour mentioned, that is, that this is a case truly without a ratio because although his Honour Justice Deane does direct himself to the orders, when one goes behind the orders and the agreement in them, the underlying reasoning is different as between himself and the joint judgment.

The way I am going to try and handle that is that I am going to assume in-chief that the reasoning is the same as between Justice Deane and the joint judgment and I am then going to make various submissions on the basis of that and I am, in effect, inviting my learned friend, Mr Spigelman, if he wants to take that up, to suggest that there is some difference in the reasoning between Justice Deane, on the one hand, and the majority, on the other. If my learned friend takes up that invitation, he runs directly into the problem that your Honour Justice Kirby has, if I may say so, so neatly articulated, that is, that there may not be a ratio here in Theophanous and that, therefore, it is all the easier for my client to overturn it.

KIRBY J: Well, there may be nothing to overturn if there is no ratio. There are assumptions, but there may be no principle, no holding of the Court that is to be overturned. Before we leave this case I would be indebted, and speaking only for myself, if you or somebody would make available to us that line of authority in the Court - and there is some - that speaks about finding the ratio of cases. There are a series of decisions of this Court which express the process and I would like to have them.

MR REYNOLDS: Yes. Your Honour, I think my learned junior has taken a note of that and there are a number of authorities to which we can take your Honour on that question.

GUMMOW J: I think one of the cases on excise and receipts duty caused this problem.

McHUGH J: Yes, I deal with it in Philip Morris I think in an excise case and it is dealt with I think in Wasson. It is certainly dealt with in my judgment in the Court of Appeal in New South Wales in a case called Wasson v Commercial & General Acceptance, I think it is.

MR REYNOLDS: Thank you, your Honour.

BRENNAN CJ: Mr Reynolds, there are two things in Justice Deane's judgment though, are there not? One is the scope of what he regards as the constitutional protection. The other is the subject matter to which it can apply. In Stephens' Case what he is saying is that his view of the constitutional protection was wider than that of the joint judgment in Theophanous but his application of it is limited to, in the Theophanous Case, federal members; in Stephens' Case, State members. So that there is no doubt, is there, but that Justice Deane went at least as far as the joint judgment in terms of the scope of the constitutional protection, albeit there was a division as to the subject matter or the personnel to whom it might apply?

MR REYNOLDS: Your Honour, I concede what your Honour says on the basis of page 257 and the equivalent in Theophanous, but I still reserve the matter that I mentioned in answer to his Honour Justice Kirby. That is that there are really three levels here. One is the orders, then there is the precise limited agreement of Justice Deane, and then there is a lower threshold altogether; that is the underlying reasoning of these two judgments. I agree with your Honour so far as 1 and 2 are concerned but I am leaving open to my learned friend, Mr Spigelman, to either take me up on that and say that in fact the reasoning is different with consequential danger for his client, or alternatively to accept my categorisation of the reasoning of the majority, which is that in all respects or in most relevant respects they are identical. My submissions, the points that I make, are in one sense predicated upon the reasoning being identical between the two judgments. I hope that answers your Honour the Chief Justice's question.

BRENNAN CJ: Yes.

MR REYNOLDS: Your Honours, can I focus briefly on the way the arguments proceeded in Stephens and Theophanous. I will not take your Honours to the judgment, but essentially when your Honours, if your Honours are so inclined, review the argument in the Commonwealth Law Reports, your Honours will see that there were three essential issues. The first - and this isderived, if I may say so, from the way the case was stated - is the existence of the implied guarantee. Your Honours will see in particular from page 163 of Theophanous at about point 8 that Justice Deane notes that there was:

common ground between all parties and interveners in the argument -

that there was:

to be drawn from the doctrine of representative government which forms part of the fabric of the Constitution a fundamental implication of freedom of political communication and discussions.

Your Honours will notice that there is reference not only there to an implication but to its provenance from the doctrine of representative government.

The second argument that was put was that the freedom did not affect the common law and there was much discussion from my learned friend Mr Castan in particular about the question of whether there were rights in a general sense in our Constitution. The third primary focus of the submissions was the issue of whether the common law and defamation statutes constituted reasonable regulation of the freedom. The reason I am mentioning that to your Honours is for a number of reasons that I will come to in a moment. I wanted to indicate the general slant of my submissions and in particular to note that the submissions that I am putting, in effect, were not put in that earlier case.

It is important for at least two reasons. First of all, it is relevant to the question of overruling but, secondly, if I may respectfully say so, I wanted to stress that the arguments that I am raising seem not to have been put to the Court on the earlier occasion and I would respectfully ask your Honours to bear that in mind in hearing me on them. My submissions will focus on four matters which were not really dealt with in Theophanous. The first is the provenance of the freedom. The second is a very basic notion, that of the notion of a necessary implication from the Constitution, a matter that perhaps was thought to be so basic that not much attention was paid to it in the argument in Theophanous.

Thirdly, on the question of reasonable regulation, I want to focus on what your Honour the Chief Justice has called from time to time the notion of a margin of appreciation. Finally, I want to focus on the consequences of perceived conflict between the implied freedom and the common law and statutes. They are all matters, particularly the last, to which very little, if any, attention is paid in the argument in Theophanous and, as I say, I mention that for obvious reasons.

Having said that, I do not approach my argument under those headings, but I will indicate, if I may, briefly to your Honours the structure of my argument on the constitutional question. First, there was the question of the notion of necessity. Secondly, I deal with Justice Deane's judgment and make various submissions about it. Thirdly, I will be looking at the joint judgment and making submissions about it. Fourthly, I will be looking at the question of the ambit of the guarantee and particularly on the issue of whether it extends to New Zealand. Fifthly, I will be looking at the question of overruling and, finally, I will be trying to say in answer to your Honour Justice Dawson's question yesterday, namely, whether or not my argument requires that Nationwide and Australian Capital Television be overruled. So I undertake to your Honour that I will try and address that issue.

DAWSON J: I will have to wait.

MR REYNOLDS: And I will then deal with the common law but I will come to that later on. On the question of necessity, your Honours will have seen from our submissions in paragraph 7.1, that we refer to various authorities for the rather banal proposition that the only implications which can be drawn from the Constitution are those which are necessary. And that is not surprisingly a test which is not disputed by the ABC in its submissions, and I refer in particular to paragraph 46. Perhaps because the meaning of necessity is so obvious the word has not been much discussed in the cases. I would like to focus very briefly, if I may, on the content of that word.

The dictionaries tell us that when something is a necessity, it must be a prerequisite for a sine qua non and they are two expressions which I would like to come back to. So that if one is talking about a necessary implication it must, in my submission, be a prerequisite for our Constitution or a sine qua non of it operating. The other obvious point I would like to stress is that the notion of necessity is quite antipathetic to the notion of desirability. What is - and this is stated time after time in the judgements - not permissible is for the Court to frame any implication from the Constitution which cannot be said to be a necessary one.

Your Honour the Chief Justice addressed this briefly in the context of Theophanous on page 143 of the judgement where your Honour adverted to the issue of policy which your Honour defined as being what the law should be as distinct from what it is. Your Honour at page 143 at point 5 said, very shortly:

In the interpretation of the Constitution, judicial policy has no role, no role at all to play.

That is because the notion of desirability or choice on the part of a judge is, as I submit, quite antipathetic to this notion of necessity.

KIRBY J: I question that for myself only in the sense that if it is highly undesirable, if it would cause great mischief, it would challenge our constitutional tradition, if it would limit liberties in a way that was completely out of line with our history. Its undesirability would, at least arguably, make it rather unlikely that it was necessary.

MR REYNOLDS: Your Honour, I accept that without hesitation. What I am saying is not that those matters your Honour referred to are irrelevant to the question of necessity, I am saying, if I may put it bluntly, that the Justices of this Court are not entitled to draw any implication unless it is necessity with the full content of that word being imported into that expression.

There has been some recent reference to this dichotomy, if I may put it that way, between necessity and desirability recently in your Honour's Justice Dawson's judgment in Leask and, of course, it was referred to in the Engineers' Case. I can give your Honours a brief reference to that. I will not read out the full title. Your Honours know it probably by heart. It is in [1920] HCA 54; 28 CLR 129 and the particular passage that I am referring to is at page 142 at about point 2 or 3 where the majority judgment condemns matters of necessity on the ground - or if they are:

referrable to no more definite standard than the personal opinion of the Judge who declares it.

I will be coming back to that statement.

Your Honours, I have tried to focus from the beginning of my submission on the precise orders in Theophanous because ultimately that is the - with the caveats I mentioned - implication which has been drawn from our Constitution to be found, as I say, with those caveats in the orders.

My submission is, I am afraid, a very rudimentary one, which is that on no view is that defence a necessary implication. The freedom has - so the majority has held in Theophanous - what your Honours might regard as a sort of protean operation. I will try and explain what I mean by that. The freedom as implied, and the way their Honours have interpreted it is that it varies in its operation according to the context. The one context that we definitely know about is the context of defamation. In that particular area, its protean form assumes the shape basically of the orders in Theophanous.

DAWSON J: Is this not to skip a step in the reasoning? The reasoning is not just to imply this particular freedom. The first implication is, of course, representative government, and it is an implication of representative government that bears a freedom of expression, in the First Amendment sense. And then, because it is an absolute freedom, you seek to see how that has to be qualified - as they do in America - and that is the task of the Court. That is how you get to defamation law.

MR REYNOLDS: I accept what your Honour says. Can I try and indicate why I am taking this course? I am going to be putting an argument along the lines that your Honour has just mentioned, but I am trying to avoid some of the difficulties which may arise through focusing from the beginning on the concept of representative democracy. I want to, if I may say so, cut straight to the heel of the hunt and look at this defence and say that let us assume that all intermediate steps about necessity and the like were complied with. Let us have a look at this defence and ask a very basic question: is that a necessary implication?

But I also submit, and will be submitting in due course, that your Honour is quite correct in saying that the implication has been drawn from what I will say in shorthand is an intermediate concept, which itself involves matters which are derived from outside the Constitution. But I do not wish to start my submissions, if I may - - -

DAWSON J: I see what you are doing.

MR REYNOLDS: I am not skipping that issue. Can I begin by taking your Honours through Justice Deane's judgment? I want to try and focus on a number of aspects of it. As I say, it is important for the reason that your Honour Justice Kirby pointed to, because I am going to assume that his Honour's reasoning, as it were, speaks for the majority of the Court. Can I take your Honours to page 174. I will omit some of the legal matters which were addressed beforehand about the living force and the intention of the framers, and there is a heading there at page 174 "State defamation laws," and what his Honour does is he starts with an observation that:

The law of defamation in most Australian jurisdictions is "a mosaic of statute and common law" -

which is a concept I will be coming back to later, because I submit it is very important to bear that in mind.

His Honour then proceeds to summarise the effect of the common law and of the statutory provisions throughout the Commonwealth and his Honour then on page 178 through to the top of page 180 - your Honours will see there is a section here where his Honour reviews the defamation laws and poses a test at the bottom of 178 and the top of 179. His Honour at pages 183 to 184 reviews various arguments which would support, his Honour says, the consistency between the State defamation statutes and the common law and his Honour's conclusion is at page 184 point 8 that the:

unqualified application of State defamation laws -

by which his Honour means the common law and statutes -

to render the citizen liable in damages for the making of statements about the official conduct or suitability of a member of the Parliament or other holder of high public office in the service of the Commonwealth (such as a member of this Court) cannot be justified in the public interest in the narrow sense -

articulated at the bottom of page 178 over to page 179. The conclusion that is then drawn is that the unqualified application of State defamation laws is inconsistent with the Constitution and at page 185 his Honour addresses the issue of how the State defamation laws, statutory and common law, are to be confined or rendered non- applicable and his Honour's conclusion is at the bottom of page 185 at point 8. His Honour holds:

that the effect of the constitutional implication is to preclude completely the application of State defamation laws -

I interpolate all State defamation statutes and the common law of Australia -

to impose liability in damages -

as indicated. So this is, so his Honour says, the marking out of what one might loosely call a constitutional Alsatia. This is an area where the statutes of the various States and the common law of Australia do not run. Your Honours, there is further elaboration of that notion on the top of page 186 where there is a reference to complete preclusion.

KIRBY J: Is that a good analogy? The Alsatia arose in the context of the Commonwealth places and, therefore, you had a place, a physical area, where as this is just a collision between the Constitution as interpreted and a State statute or the common law. So it is just ordinary old incompatibility. It is not Alsatia at all.

MR REYNOLDS: The precise point that your Honour raises is really in one sense favourable to my client, because if it were an Alsatia that were marked out in specific terms and defined in accordance with a particular place then it would have some accurate and narrow sphere of operation. But here this Alsatia is marked out in accordance with notions of fact derived from reasonableness in accordance with common notions of fairness in our society. I am going to be submitting in due course that there is a real difficulty with that particular concept. I accept that the use of that word is inaccurate. It is inaccurate for another reason, because "Alsatia" assumes there is no law and, of course, the Constitution applies in this area where the statutes and the common law are precluded. I will be coming back to the notion of preclusion a little later on.

I want to focus on three submissions which are derived from pages 185 and 186. The first submission is that in drawing this constitutional defence which operates as a total preclusion his Honour, on those pages, does not refer at all to any test of necessity. This is ultimately an implication which his Honour draws, I respectfully submit, in accordance with his Honour's views as to what represents an appropriate operation for the laws of defamation in Australia in accordance with his Honour's own notions of what is an appropriate balance. Secondly, and obviously, having not cited a test of necessity his Honour did not purport to apply one.

Thirdly, if I can focus directly on his Honour's defence for a moment, I submit that this defence, which amounts to a total non- ability of these persons to sue for defamation, is not, and could not be viewed, I respectfully submit, as a necessary implication from the Constitution. Can I address that last point briefly. So far as I know - and I invite my friends to correct me - throughout the whole of the common law world the legislatures have permitted holders of high public office to sue for defamation. Likewise, it is the accumulated wisdom of every judge who has ever sat in a common law court that - - -

GUMMOW J: Just a minute, Mr Reynolds. You said there was no reference to necessity. That is literally true; but there is a passage at the bottom of 180 which uses the words "critical" and "essential". The paragraph about point 8, "The freedom of the citizens".

MR REYNOLDS: His Honour is talking about freedom in a general sense, your Honour, and, of course, that is essential. This Court held by majority that that was so in Nationwide v Australian Capital Television.

GUMMOW J: Yes. And that his Honour also uses the expression - the first occasion I can find, but I may be wrong, is 183, about point 6. The paragraph beginning, "There are three main lines", do you see that?

MR REYNOLDS: Yes, your Honour.

GUMMOW J: About four lines down, "is justified in the public interest". Is that further articulated?

MR REYNOLDS: Yes, your Honour. It is articulated at pages 178 to 179. I would rather not jump ahead but, if your Honour wants me to address that, then I will briefly. If I can tantalise your Honours for a moment, your Honours will see at the bottom of page 178 the word "necessary" is used and on page 179 the word "necessary" is used but, your Honours, when we look at that passage later on, I am going to be submitting that "necessary" is given a definition, and the definition is proportionate in my opinion.

McHUGH J: All right, thank you.

MR REYNOLDS: I will be coming that later on, your Honour. I think I was making the rather banal observation that every common law judge, every legislature throughout the common law, has held that it is, in effect, appropriate in a representative democracy for holders of high public office to be able to sue for defamation. What his Honour does in this passage is to suggest, in effect, that the balance reached by all of those involved is wrong and is inconsistent with our Constitution at least in respect of holders of high public office.

That the defence is not necessary can perhaps be most conveniently seen from the decision in New York Times v Sullivan, because your Honours will recall that under the First Amendment the judges of the United States Supreme Court are, so they have held, able to indicate what is desirable for that country under the First Amendment. Their Honours held that absolute preclusion of a right to sue for defamation was not desirable. His Honour here has held in our country, without a Bill of Rights, that such preclusion is necessary from the Constitution, and yet at page 186 at about point 4 his Honour acknowledges in terms that there is potential for abuse. A little earlier on the page, his Honour concedes, about point 2:

that the proprietors of media outlets are commonly large and powerful corporations and that there are some special arguments which can be advanced to support the full -

not the partial -

the full application of the ordinary laws of defamation to the political communications and discussions which they publish for profit to themselves.

But ultimately, as a matter of balance, I respectfully submit that did not appeal to his Honour, but we have passed, I respectfully submit, to an area where the learned judge is not dealing with necessary implications at all.

McHUGH J: In the passage at 178 and 179 you refer to, the question of implication is almost reversed, as far as your question of necessity. You can only allow the action for damages to the extent that it is necessary to maintain the freedom, whereas the real question is as to whether the curtailment of the action was a necessity.

MR REYNOLDS: If I may say so, your Honour, precisely, but there is a more important issue which is that that exercise at pages 178 to 179 is logically quite unnecessary. If the judge approaches the articulation of the freedom by putting the statutes in common law behind him and then focusing on the question of what is a desirable offence in the context of defamation in Australia. The first exercise is strictly otiose because if you are going to render the statutes in the common law inapplicable you do not have to look at them. You simply articulate the right in accordance either with a notion of necessity, and if one was doing that one would be looking to what your Honour Justice Dawson has called "an irreducible minimum", something way down at the bottom of the scale on defamation defences. Here we do not have an irreducible minimum. We have a total preclusion of any possibility of these people suing for defamation and that is why when one focuses on the fact that the first exercise at pages 178 to 179 is strictly unnecessary, that his Honour is, I respectfully submit, simply articulating what his Honour believes is a desirable defence in this country.

Your Honours, those are the three points I wanted to make about necessity. I also want to focus - although as I have indicated to your Honour Justice McHugh this exercise is, in one sense, otiose, I want to focus on pages 178 to 179 to indicate that the form of judicial review of the defamation statutes and the common law which takes place in that passage is not in accordance with principle and, in particular, is not derived from any notion of necessity. If your Honours go to that passage - and I want to examine it closely, if I may - his Honour says at page 178, and he is talking about the common law and the statutes of Australia:

Such a curtailment of the freedom of political communication and discussion is consistent -

I would like to come back to that expression later -

with the implication only to the extent to which it can, according to the standards of our society, be justified in the public interest -

Now, that test is then given a definition.

GUMMOW J: Is that the first use of that phrase "be justified in the public interest"?

MR REYNOLDS: I believe so, your Honour.

GUMMOW J: Yes.

MR REYNOLDS: His Honour then talks about three possibilities. The first way of justifying it is if the restriction is:

conducive to the overall availability of the effective means of political communication and discussion in a democratic society.

Your Honours, that is a test which depends, I respectfully submit, simply upon the learned judge's personal opinion. The second possibility is that the restriction does not go beyond what is necessary, which looks dangerous for me - go beyond what is necessary for the preservation of an ordered society. I will come back to that. The third alternative is that:

it does not go beyond what is necessary either for the protection or vindication of the legitimate claims of individuals to live peacefully and with dignity in such a society.

Can I just focus before I come to the definition of "necessary" to the notion of "preservation of an ordered society" and the notion of "vindication of the legitimate claims". I respectfully submit that they are very broad concepts.

DAWSON J: What his Honour is doing there is a first amendment exercise.

MR REYNOLDS: Precisely, your Honour. It is simply an articulation, judicially, of what his Honour thinks are desirable restrictions. If they are not desirable, in his Honour's opinion, then they are inconsistent with the freedom.

BRENNAN CJ: It is one thing to say that it is his Honour's opinion, but his Honour adopts the wording of Lord Goff of Chieveley as to what is meant by "necessary."

MR REYNOLDS: That is so, your Honour.

BRENNAN CJ: Now, you cannot, I should not have thought, take it any further than that, and is that sufficient for your purposes?

MR REYNOLDS: Your Honour, if I can address this concept of "necessary." His Honour defines it a little lower down on page 179. He says:

in this context implies the existence of a pressing social need, and that interference with freedom of expression should be no more than is -

is:

proportionate -

Your Honour Justice Dawson and, for that matter, the other Justices of the Court, looked at this notion of proportionality in Leask's Case, and your Honours looked at the notion of a law being reasonably capable of being regarded - I speak loosely - as a reasonable regulation. When your Honour compares that notion with this test of proportionality, I respectfully submit that it can be seen that inevitably notions of necessity disappear from the scene, that a notion of a test of law disappears from the scene, and that the judge, I respectfully submit, cannot give content to this test without importing, I respectfully submit, idiosyncratic views based upon his Honour's views of the society in which we live.

As I say, this is not a matter which was taken up in argument in the Theophanous Case. I will not take your Honours to the passages, but what is informative, I submit, in this context, is to go back to look at the way his Honour framed the tests in conjunction with your Honour Justice Toohey in Nationwide. If one goes back to the way the test was articulated in that case one can see that there is, I respectfully submit, a slide from a notion of a law which your Honours were considering in that case of a law being reasonably capable of being regarded as a reasonable regulation towards a concept of what is inevitably an open content in this idea of proportionality.

That is, perhaps, also illustrated - and I will come to this in due course - by your Honour Justice Gaudron's judgment in Nationwide, because your Honour, in that case, adopted the test - and we do not dispute it for a moment - that the law needed to be tested in accordance with whether it was reasonably capable of being regarded as a reasonable regulation.

TOOHEY J: I think you have to be careful to some extent, Mr Reynolds, in the way in which you approach the use of proportionality in some of the judgments. Leask was really concerned with the characterisation of a law of the Parliament and the role that proportionality might play in that respect, and members of the Court took somewhat different views. But it is a different question, is it not, to the sense in which it is being used by Justice Deane?

MR REYNOLDS: Your Honour made that point in Leask's Case and I accept what your Honour says. Your Honour may correct me on this, but my recollection of Leask's Case is that your Honour Justice Dawson rejected for most questions of characterisation a test of reasonably capable of being regarded as reasonable regulation and left open the question of a purposive power, but here we are not talking about that highly legalistic form of test reasonably capable of being regarded as reasonable regulation. We are talking about a test which has not a threshold one step lower, but I suggest many, many steps lower, and we inevitably get here to a focus on, I submit, what this Court's role is in performing judicial review.

I submit that it is fundamentally not much different from the role that the Court performs in the administrative law context where there is one area which is verboten, one area which is anathema, and that is for this Court to engage - your Honour Justice Kirby has stressed this many times and so has your Honour the Chief Justice, that one has to frame the question as a question of law, one has to look and focus upon the matter as a question of law and be absolutely resolute that the question of merits is left to one side and I respectfully submit that when one focuses on this test that the question of merit review, I respectfully submit, is inevitably drawn into the equation.

KIRBY J: I take the forensic force of your argument, but in addition to what the Chief Justice pointed out and the reference to coming back to Lord Goff's definition of necessity, I think it is important to read the passages that you have been citing to us from Justice Deane in the context of a judgment that laid the ground by looking at the implications, the Constitution and principles of construction and so on. It is not as if these passages appear out of the blue. They come after his Honour has gone through the intention of the original framers and his view of the Constitution and the nature of the polity that it establishes. So that it is a little unfair to his Honour, I think, just to take these observations out of the context in which they appear.

MR REYNOLDS: Your Honour, I accept without demur the unfairness of the submission in the sense that this is not a matter which was raised in the hearing of Theophanous. It was not raised on the hearing - - -

KIRBY J: My point is a different one. It is not whether it was raised or not for the consideration of the Court. It is that his Honour has - I think Justice Dawson suggested this earlier - he has taken the step of saying this is the Constitution. It implies a particular form of government and from that you draw certain inferences and then he turns to what are they. So that I just think you have to be a little careful in analysing judicial texts out of the context in which it appears.

MR REYNOLDS: Your Honour, I am trying only to read brief passages but I accept, your Honour, that really to do justice to his Honour I should read the whole of the judgment and place it in context, but I will leave it to my learned friend, Mr Spigelman, perhaps to indicate the passages which are inconsistent with my submission.

McHUGH J: But as you have pointed out, you are concentrating on the end result. You are saying, "Look, the conclusion his Honour reaches just doesn't derive by necessary implication from any provision in the Constitution, or the Constitution as a whole"?

MR REYNOLDS: Precisely. One can insert at pages 178 and 179 the most vigorous form of necessity test ever conceived and my submission still holds, the reason your Honour Justice McHugh articulated.

KIRBY J: But his Honour goes on to cite Lord Keith of Kinkel in Derbyshire at 181:

"In a free democratic society it is almost too obvious to need stating that those who hold office.....must always be open to criticisms.

And it is, I think, in that context that he is saying, "Well, this is where I would have set the limit of the inhibit on criticism".

MR REYNOLDS: Of course, it is interesting to compare Darbyshire and the English cases because as your Honour will recall, their Lordships held that the common law of defamation did not need to be reviewed in the light of notions derived from the Covenant of Human Rights which applies in the European community.

KIRBY J: I recall that, but they also struck out an Alsatia in which they said local government authorities could not sue in defamation.

MR REYNOLDS: They did too, your Honour.

KIRBY J: They did that, of course, by the common law.

MR REYNOLDS: I accept that.

GAUDRON J: Mr Reynolds, I do not think what I said accurately in Nationwide is as favourable to your proposition as you would have indicated. I did not have "reasonably capable" in it at all and my view was one of purpose and that has always been my view I think in relation to these matters, that it is the purpose of the law that is the critical consideration.

MR REYNOLDS: Your Honour, I do need to deal with it.

GAUDRON J: Yes.

MR REYNOLDS: Can I take your Honour to Nationwide at pages 94 to - - -

GAUDRON J: I do not need you to take it out of turn if you do not want to.

MR REYNOLDS: No, your Honour, I am - "happy" is perhaps not the word, but I shall deal with it. At pages 94 to 95 - - -

BRENNAN CJ: You take whatever course you want, Mr Reynolds. It is only a question of time.

MR REYNOLDS: Yes.

McHUGH J: Stay on track. Deal with the questions as you want to, not because they are asked.

MR REYNOLDS: Your Honour, at page 94 point 6, your Honour says, "The second question that arises" - and obedient to his Honour Justice McHugh's injunction I will skip over what is said, but your Honour then refers to the freedom and that is the basis of your Honour's decision in this case is the implied freedom. There is a very, very important passage which is to be found at page 95 where your Honour looks at the question of "reasonably and appropriately adapted" - that is at 95 point 3 - and your Honour notes that that is the same question asked by Justice McHugh and the Chief Justice with respect to proportionality. If your Honour goes back to page 30 at point 9 and looks at the Chief Justice's test - the test is at page 30, I am sorry, point 8:

reasonably and appropriately adapted to the pursuit of an end within power, i.e. unless it is capable of being considered to be reasonably proportionate -

that is the basis of my submission and his Honour Justice McHugh's is to like effect. So that the "reasonably capable of being regarded as proportionate" test referred to by their Honours in Nationwide has been embraced by your Honour in the context of the - - -

GAUDRON J: Said "for all practical purposes".

MR REYNOLDS: Yes, your Honour. The submission is not watertight.

GAUDRON J: Yes. If it is not reasonably capable of being appropriately adapted, it is not reasonably and appropriately adapted.

MR REYNOLDS: As your Honour would concede, one then gets to the situation where one has to draw a line between "reasonably capable of being regarded as appropriate", "reasonably proportionate", "proportionate", et cetera down the line, and if one is going to do that, one has to articulate tests in accordance with which those various tests are to be applied to particular laws.

Can I focus on the notion of inapplicability of statutes, which is my next submission, in relation to Justice Deane's judgment? His Honour, as I have tried to note, held that the statutes and common law in respect of defamation throughout Australia were inapplicable in respect of these specified people.

BRENNAN CJ: Could I just ask why you focus so much on Justice Deane's judgment?

MR REYNOLDS: For this reason, your Honour, that his Honour's steps of reasoning are far more deliberate, and if I may respectfully say so, easier for me to follow and the majority, I submit, also embraces this reasoning and I will be coming to them in due course. But it is really because the steps involved in the process of reasoning are - I do not mean this disrespectfully - but on one view a little bit easier to follow through the text than with the joint judgment for reasons that I hope to make apparent later on.

KIRBY J: So you were saying that whatever fallacies one finds in Justice Deane's judgment, on your submission, the same will appear in the joint judgment?

MR REYNOLDS: That is so, your Honour, and your Honour can see why I might prefer to approach it this way. I also, I hope not unsubtlety, laying down a challenge for my learned friend based upon what your Honour Justice Kirby said, namely if my learned friend wants to say there is no ratio here because the majority joint judgment is different, then let him do so. In which case the Court, I submit, will be much freer in considering this question than it would otherwise have been.

KIRBY J: I do not think anybody would accuse you of subtlety on that point, Mr Reynolds.

MR REYNOLDS: No, your Honour. I think my friend is fairly on notice. This notion of inapplicability: I would like to advance a submission that this doctrine is inconsistent with the decision of this Court in Nationwide News, this doctrine of non- applicability. I am going to focus, when I talk about this, on the States of Queensland and Tasmania and the reason I am doing that is obviously because they are code States and the common law does not apply there. My submission at base stems from this, that if your Honours go to the orders in Theophanous and take the text of the Queensland Code, your Honours, in effect, have a holding by this Court that that defence should be inserted into the Queensland Code and that the Queensland Code should be rewritten to that extent.

The reason that Nationwide News is important in the context of that submission is that the statute which was in issue there albeit a criminal statute was, in effect, the same a the liability provision in a defamation statute. It talked about bringing any member of the Industrial Relations Commission into disrepute. The Judges of this Court or four of them looked at that case on the basis of the implied freedom and three looked at it on the basis of characterisation but all seven Justices looked at the question of whether or not it would be possible to read down that provision and insert a defence, as it were, judicially in that legislation so as to save it from invalidity by using section 15A of the Interpretation Act.

It is important, if I may, to go to that decision - that is Nationwide News - on that issue. I give your Honours some brief page references. They are at 34, 61, 80, 95 and 105. But if I may - - -

McHUGH J: What are those passages authorities - - -

MR REYNOLDS: That is where their Honours - I am trying to speed up, your Honour - they address the question of severability, and their Honours suggest that it would be an impossible task to save a statute from invalidity by reading in a sort of defence. Yet, I respectfully submit that it is precisely what the majority of the Court has done in Theophanous, at least in respect of the Codes operative in Queensland and Tasmania. Of course there is another problem.

GUMMOW J: They have not precisely done that because they have done it in a higher dimension; they have done it in a constitutional dimension.

MR REYNOLDS: That is so, your Honour, but the operation - - -

GUMMOW J: But you rely on that, I suppose.

MR REYNOLDS: Indeed. But what is happening is that in effect - I am not talking about a divisible reading down but a distributive reading down - the Codes relating to defamation in Queensland and Tasmania have been read down in the way found in the orders in Theophanous. There is a decision of this Court where every Justice has said that that exercise is not difficult, but impossible.

BRENNAN CJ: But there has not been a reading down of the Queensland Code.

MR REYNOLDS: Not in terms, your Honour.

BRENNAN CJ: Not in any conceptual basis can you say that, surely. Nobody considered the question of what words were in the Queensland Code and their content. It was a question of what was necessarily implied in the Commonwealth Constitution, and the effect on the Code was simply by virtue of its constitutional force.

MR REYNOLDS: Your Honour, the holding in Theophanous is that the Queensland Code of defamation is inapplicable to a specified form of conduct. It would have been possible for the statute in Nationwide News to have been read down in that way. All the Justices of this Court said that that was impossible. I concede that their Honours in Theophanous have not in terms purported to read down those provisions. But, your Honour, there is, I respectfully submit, no - - -

DAWSON J: The result is if you do not read them down, the whole of the provisions of the Code relating to defamation is invalid.

MR REYNOLDS: That is my next submission, is that - - -

BRENNAN CJ: That may well be right, but it has got nothing to do with reading down the text of the Queensland Code.

MR REYNOLDS: Could I just address that briefly, your Honour. The effect of a distributive reading down is to hold that the statute does not apply qua the relevant portion by which the statute is read down. This Court has held that the Queensland Code does not apply to specified conduct.

McHUGH J: What you are saying is that the result of Theophanous in its operation in the Code States is exactly the same as if a Queensland newspaper defendant had sought a declaration that the Code could not apply to certain matters referred to in the orders in Theophanous.

MR REYNOLDS: Very similar, your Honour, yes. In effect, it is the same type of reading down and, Your Honour, if I may return to my opening submissions, a reading down in accordance with a notion of what a jury would regard as reasonable or otherwise justifiable. Even if one could get over the threshold difficulty - - -

McHUGH J: What is the whole purpose of this argument? I mean, where is it leading?

MR REYNOLDS: Your Honour, it is leading to this submission that this decision is fundamentally erroneous and that that is the reason why the Court ought to overrule it. Because it is inconsistent with established principles of judicial review and that, whether or not their Honours purported to advert to the provisions of section 15A, the end result of this is that there has been a revision of the statutes in those two States.

BRENNAN CJ: What is constitutionally erroneous about this proposition? Let it be assumed for the purposes of the argument that the Constitution does carry as a necessary implication the content of the answers given in Theophanous. The Queensland Parliament has passed the Queensland Criminal Code and made the provisions of it applicable to the law of defamation. The Queensland Parliament has no power to enact laws which are inconsistent with the Commonwealth Constitution, ergo, those laws do not apply. Is not that constitutionally orthodox?

MR REYNOLDS: No, your Honour, not in my respectful submission.

BRENNAN CJ: Why not?

MR REYNOLDS: Because if one goes, if I may, to Nationwide News, that is not the exercise which was conducted there.

BRENNAN CJ: Of course not, because Nationwide News was a question of the construction of the statute.

McHUGH J: Is what you are putting this, that what the Court should have asked in Theophanous, in so far as the codes are concerned, is whether or not those laws were reasonably and appropriately adapted to the freedom.

MR REYNOLDS: Precisely, and if one then looked at that question, as your Honour Justice Dawson has pointed out, one would first of all submit that they do amount to reasonable regulation if a margin of appreciation is inserted, but if they conflict with the implied freedom they will be invalid unless they can be read down in accordance with the provisions of section 15A and, your Honour, we have a precise analogue here for this exercise in Nationwide News. It is, I respectfully submit, no different in any respect at all from that case.

McHUGH J: So the question was in the broad approach, but it really should be have been looked at in terms of whether it was reasonably appropriate and adapt it to the freedom.

MR REYNOLDS: Indeed, and that is why I said in my opening submissions that I am talking about things - I submit, fairly rudimentary things - which were not raised with the Court on the hearing in Theophanous, is what the consequences of invalidity are. Your Honour, can I just focus briefly on this question of that applicability and look at it from this angle that, as Justice Deane pointed out, we are talking here about a mosaic of statute and common law throughout the country. This difficulty ultimately stems, I submit, from a perceived need to give this guarantee uniform operation throughout the Commonwealth.

The difficulty for the majority is that if they had applied normal standards of judicial review, then the result would have been a very complicated statutory review of the various statutes, and the consequence would be invalidity. But if one had applied that doctrine of judicial review in that form to the common law, as your Honour Justice Brennan pointed out in Theophanous, what would be the consequence of that? Invalidity of the common law? How would it be read down?

So, if the freedom was to be given this uniform operation throughout the Commonwealth, a test had to be selected which would enable the freedom to operate uniformly, no matter what the jurisdiction was. The test which was selected was a doctrine of non-applicability, so the common law does not apply, statutes do not apply, and the constitutional defence operates uniformly throughout the Commonwealth. That desire for uniformity, which ultimately emanates from this matter not being raised with their Honours, leads to a subversion of what I submit are established principles of judicial review of statutes. That is the essential problem, on one view, involved in Theophanous. Your Honours, I would like to proceed to the joint judgment, and I will not, given the time, take your Honours through that.

GUMMOW J: It is important, in my mind anyway, to understand what you want to say about the joint judgment, Mr Reynolds.

MR REYNOLDS: Your Honour, I will address it, but I am going to try and move a little quickly because I am dragging the chain.

GUMMOW J: Well, I do not think that is right.

MR REYNOLDS: Perhaps I should flag an application of the kind my learned friend, Mr Graham, made at this early stage.

BRENNAN CJ: A little premature, I think, at this stage.

MR REYNOLDS: Thank you, your Honour. I accept that. Your Honours, I will not try and digest, or summarise the judgment in the majority in the joint judgment.

GUMMOW J: One has to get into the language, though.

MR REYNOLDS: One does.

GUMMOW J: Language is everything.

MR REYNOLDS: It is, and I accept that, your Honour. I am about to approach the language in, unfortunately, minute detail. Can I make three submissions here, again in the context under the heading of "necessity"? The first submission is that this judgment does not cite a test of necessary implication from the Constitution. The second submission is that the judgment does not apply a test of necessity, whether or not a test of necessity is cited. And the third submission is that, in any event, the constitutional defence is not necessary.

GAUDRON J: Not necessary for what?

MR REYNOLDS: I am sorry, not a necessary implication from the Constitution. Your Honours, I am going to deal with that slightly out of order. I am going to assume against myself for the time being that a test of necessity has been cited in this judgment and I am going to address, first of all, a question of whether or not a test of necessity is applied in the language of the judgment; secondly, I am going to look at whether the ultimate defence is a necessary implication; and, finally, I am going to go back to the matter that your Honour Justice Dawson raised earlier on, which is the question of whether the ultimate test is a matter of necessity from the Constitution.

Can I look then at whether the necessity test has been applied and, with your Honours' leave, I am going to try and race through this a bit, but I will, obedient to your Honour Justice Gummow's injunction, point to the language I am talking about. I am going to point to a series of phrases and just give your Honours references. At 134 point 5 it talks about the test in Sullivan. It says "sets too little store by the reputation of the person defamed." At page 134 point 8 the second criticism is "that it tilts the balance unduly in favour of free speech". Then there is reference on page 135 to Law Reform Commissions and at page 135 point 3 there is reference to the Commission regarding a formal public figure test as being undesirable. There is reference at about point 7 to a quote from Coleman v MacLennan and there is reference within that quote to "so great that they more than counterbalance the inconvenience of private persons". Down the bottom of the page there is reference to public officials in Sullivan "in our view it gives inadequate protection to reputation". Then over the page to 137, whether "The publisher should be required to show that it acted reasonably".

GUMMOW J: Whereabouts on 137?

MR REYNOLDS: Point 2. Then at point 3 "it cannot be said to be in the public interest or conducive" - I respectfully interpolate "in our view" - "to the working of democratic government". Page 137 point 6 there is reference to the requirements - this is a very important passage. The requirements are set out and it is stated:

These requirements will redress the balance and give the publisher protection, consistently with the implied freedom.

Page 137 point 7, "However, it seems to us that, once it is accepted". Page 137 point 8 "It will be noted from the preceding paragraphs that we do not consider". Further down:

In our view, it is for the defendant.....That approach accords with the approach that the courts have taken in the past -

At the bottom of the page, "we are not persuaded".

TOOHEY J: Of course, all this is against the background of the passage that begins at the foot of page 133 and goes over to the top of page 134 and the joint judgment says that the efficacious working of representative democracy and government does not demand or need protection in the form of an absolute immunity, and then the consequences of that are necessarily then worked out.

MR REYNOLDS: Your Honour, I accept that. As I said, I think to his Honour Justice Kirby, I am content to assume that that is a test of necessity pitched at its highest pitch. It is unarguable that it is a test of necessity. I am looking at how that test is applied and whether there is reference back to any notion of necessity. My respectful submission is that the words that are used contain no reference to a notion of necessity by reason of an implication from the Constitution. What is being said here - and it is a matter of submission. I do not say it is conclusive but I do respectfully submit it is reasonably clear that what is being looked at is what their Honours view to be an appropriate balance in this area in our society.

McHUGH J: But the point you make is really taken up at 133, is it not; the second paragraph on 133?

MR REYNOLDS: Well, your Honour, that is so. Can I just focus on that briefly, because that is a most important paragraph for a few reasons. First of all, if your Honour goes back to page 129 at point 3, your Honour will see that the heading is, "Do the existing laws of defamation inhibit freedom of communication?", laws of defamation, statutory and common law. What happens is that there is a review in very general terms of the common law. There is no test cited as to whether or not it is reasonably capable even of being regarded as proportionate.

There is then a review of the common law and whether it inhibits the exercise of free speech and the end pronouncement - and this is the equivalent, I would suggest, of Justice Deane's review where he judicially reviews statutes in the common law - is that the common law defences significantly inhibit free communication and, because the balance is tilted too far against free communication and the need to protect representative democracy, then they are inconsistent with the freedom. This is where your Honour and I were talking earlier about positively defining the freedom. This is the judicial review section of the joint judgment.

McHUGH J: But in fairness to their Honours, as against your criticism, as Justice Dawson pointed out to you earlier this morning, the judgment is structured on the basis that there is this general freedom of communication which can be qualified, and this is directed at the qualification. I appreciate the force of your point that nevertheless, at the bottom line is that this is the necessary implication of the Constitution.

MR REYNOLDS: Indeed, but can I respond briefly to what your Honour has just said? What your Honour says would, I respectfully submit, have great force but for this. This examination takes place not after the criteria are enunciated but in the paragraph before they are enunciated. So it is difficult to say as a matter of construction that the common law is held to be inconsistent with the implication before the criteria which conformed to the implication are articulated.

The other problem about this paragraph, I respectfully submit, is that there is no reference throughout this section to any form of judicial review of the statutory provisions. There is a sentence:

In the case of a statutory regime the outcome will depend on identification of the criteria which determine whether publication of political matter is non-actionable.

Yet in this judgment, unlike Justice Deane's, there is no, I respectfully submit, attempt to construe the relevant statutory provisions all around Australia. That matter is not a matter to which their Honours return. They simply proceed to articulate the criteria in accordance with which publication is non-actionable and there is no return to this question of the status of the statutes.

Sso that what has happened, in effect, is that there is this tremendous, what I will call, dovetailing difficulty about treating the common law and the statutes in the same way. Justice Deane is, if I may respectfully submit, very upfront about what happened. They are just rendered non-applicable. This judgment is, I submit, not as clear but, for reasons I will take your Honours through later, it does also embrace the doctrine of non-applicability.

But the judgment does not, I respectfully submit, face up to this very difficult problem of how does one reconcile the judicial review which took place in Nationwide with the process which is here occurring. One way of reconciling the two, attempting to reconcile them is, as your Honour Justice McHugh said, to say that in this case a positive freedom is being arced out without any reference to the provisions of the common law and to statutes. I accept that that is one construction. The problem is the inconsistency between these two concepts, judicial review and invalidity in Nationwide and the arcing out of the implied freedom in this context in this case.

TOOHEY J: I must say I find this curious in some ways, Mr Reynolds. You seem to be suggesting that in the exercise of what was a constitutional exercise that somehow the matter is to be determined by an analysis of the common law and the State statutes and then discovering as a matter of implication the extent to which the implied freedom could somehow fit with the range of statutes in the common law. But is that not really turning it on its head? The question is whether there is an implied freedom, what the scope of it is. If there be such a freedom and however it is defined, its effect upon the common law and upon the statutes of various States is something that would have to be worked out over time.

MR REYNOLDS: Your Honour, in my respectful submission, to arc out in positive terms the operation of this freedom is itself to turn the operation on its head, and one can best see that by comparing this case with Nationwide News. This Court could have started out in that case by arcing out an implied freedom of the kind found in the orders in Theophanous. But it did not do so, and the reason is that it applied a standard test of judicial review of the kind your Honours apply frequently in relation to section 92 and determine validity. This exercise has, I respectfully submit, been turned on its head by moving from a question of the notion of judicial review to this doctrine of arcing out an area to which statues and the common law do not apply. The genesis of the problem is, I submit, a perceived need to treat the common equally so that the constitutional defence has an equal operation throughout the Commonwealth.

BRENNAN CJ: The genesis of the problem is the questions in the case stated.

GUMMOW J: That is right.

MR REYNOLDS: That is so, your Honour.

GUMMOW J: The case stated might have been better prepared to follow the format of the document we have got here; in other words, asking whether the two pleas, the two paragraphs, were good in law.

MR REYNOLDS: And that is what, of course, happened in - - -

GUMMOW J: These pleadings, in this case, about this dispute, in this State.

MR REYNOLDS: Your Honour, I remarked yesterday, in my brief five minute opening, about the artful nature in which this case has been stated. I am not suggesting for a moment that that is something to which the Court has been a party. One suspects - I do not know - that this case stated has been looked at very carefully by, if I may respectfully say so, some very clever free-speech lawyers, because one would not need to state the case in these broad terms to include discussion of government and political matters to get a resolution of this problem. But there is a very broad arcing out of the way the case is stated and, as your Honours have said to me, no case stated could be more conducive to producing this sort of result than the way this has been drafted.

Your Honour the Chief Justice remarked upon this in Theophanous. And that is the way the whole argument went. Is there an implied freedom? Well, of course there is. Can we apply it to the common law? There were various a priori arguments - - -

GUMMOW J: Theophanous was a case in Victoria, was it not?

MR REYNOLDS: Yes.

GUMMOW J: It was a Victorian defamation?

MR REYNOLDS: It involved publication throughout the Commonwealth, your Honour.

GUMMOW J: But that dimension is simply not explored?

MR REYNOLDS: No. And that is the difficulty, that - - -

GUMMOW J: I was anxious for it not to happen twice.

MR REYNOLDS: What tended to happen is because we were dealing primarily - people were thinking of Victorian law in Theophanous and Western Australia in Western Australian Newspapers. The focus was all the time on the common law and yet if the other statutes, particularly Queensland and Tasmania, had been brought into relief in the argument, the problems would have been matters which everyone had to face up to. Because the focus was on the common law, the only real issue which was agitated after the freedom was can the freedom apply to the common law and, next, is the common law a reasonable regulation? That is the sort of framework in which the case proceeded and that, I respectfully submit, is one of the difficulties about it.

Your Honours, can I proceed next to the submission that the constitutional defence is found in the orders in Theophanous and as articulated by the joint judgment is not a necessary implication. My submission here - and I appreciate it is a more difficult submission than it is with Justice Deane's defence - is that this defence is at least arguably not desirable for the system of representative democracy which we have in this country, and if it is not desirable then it must be the case that one cannot assert that it is necessary when full content is given to that particular word.

Can I start by taking your Honours to a passage in your Honour the Chief Justice's judgment in Stephens Case. This is my first point - Stephens' Case at page 244, at the bottom through to page 246. I would really like to read those passages in detail but I will not because of time reasons, but I would like to take your Honours to the bottom of 245. Your Honour talks about - this was in the context of a defence at common law which was, to all intents and purposes, identical with the constitutional defence - the undesirability. Your Honour put it higher than that over at 246, as being "inimical to democratic government" that one have a defence of this kind.

So that one has the suggestion that there is this implied defence to defamation in the joint judgment which your Honour the Chief Justice, looking at it in terms, has found not undesirable but, I quote, "inimical to democratic government". It is at least arguable that the defence is not desirable, I submit, by adopting that passage.

Your Honours, there is a case, a recent decision of the Canadian Supreme Court called Manning v Hill (1995) 2 SCR, and there is an important passage that I would like to take your Honours to beginning - do your Honours have that, Manning v Hill?

TOOHEY J: We have it in the Dominion Law Reports, I think, Mr Reynolds.

MR REYNOLDS: It was put on the list in the Supreme Court Reports.

BRENNAN CJ: Yes. It is regrettable, I think we have the Dominion Law Reports. Perhaps you can identify whose judgments you are speaking of and perhaps the paragraph - if there is a paragraph number, that might be of assistance.

MR REYNOLDS: Your Honours, there is a heading on page 1182 of this report which focuses on four criticisms - - -

DAWSON J: Are there paragraphs in that report, Mr Reynolds?

MR REYNOLDS: Yes, your Honour.

DAWSON J: Paragraph numbers.

MR REYNOLDS: I am sorry, about 128 following. Your Honours, there are a series of numbered paragraphs there, not numbered, enumerated, and - - -

BRENNAN CJ: This is critiques of the actual malice rule, is that right?

MR REYNOLDS: Yes, of New York Times v Sullivan, which is not identical to this test here for obvious reasons. This test here imports reasonableness and I would respectfully adopt these criticisms in this context:

First, it may deny the plaintiff the opportunity to establish the falsity.....Second, it necessitates a detailed inquiry into matters of media procedure.....Third, it dramatically increases the cost of litigation.....Fourth -

and this is your Honour the Chief Justice's point -

the fact that the dissemination of falsehoods is protected is said to exact a major social cost by deprecating truth in public discourse.

And then there is reference to a judgment in Dunn v Bradstreet where there is an extract from pages 767 to 769 - this is paragraph 132 - and your Honours will see there has been much criticism there, even in the United States, of this type of broad qualified privilege defence because erroneous information has undesirable results leading to misinformation in the public arena.

Can I hand up some material at this stage, your Honours? I believe this has been handed up. One of the references which we have handed up is a work called, "Images of a Free Press" by Mr Bollinger, and at pages 35 point 8 to 36 point 2, there is a passage that we would like your Honours to look at about - - -

GUMMOW J: He is the author of another work referred to in paragraph 131 of Manning v Hill, is that right?

MR REYNOLDS: That is so, your Honour. There is also another publication, which I had a copy of, called - can I give your Honours a note - it is called "Reforming a Libel Law". It is by John Soloski and Randall Bezanson, and it is a whole book devoted to the problems that have arisen in the United States from the New York Times v Sullivan test. It may be difficult to procure. If your Honours cannot procure it through the library I have a copy of it personally which I will make available through the Registry.

DAWSON J: Who is the publisher?

MR REYNOLDS: The publisher is Guilford. I stress, all I am trying - - -

BRENNAN CJ: What is the purpose of these citations?

MR REYNOLDS: To establish that arguably a defence of the kind articulated by the majority is not desirable. If it is not desirable, then ergo it is not necessary. Can I also refer your Honours - and this is an important reference from our point of view - to the report - I am sorry, just before I leave Hill v Church of Scientology there is a reference at paragraph 135 to Theophanous and, more importantly, at paragraph 136, to a report of disrespectfully called the Kirby Committee Report, entitled "Unfair Publication: Defamation and Privacy". I would like to go to that because your Honours should have copies of that report or some pages of it.

KIRBY J: Could you give me the vintage of the Bollinger, because we are supposed to cite the - perhaps that could just be checked up in due course. We are supposed cite the year of the publication.

MR REYNOLDS: Your Honour, that is a matter that my learned junior would be more able to deal with, for a variety of reasons. If I can take your Honours to paragraph 126 of that report, if your Honours have it. The Law Reform Commission was there considering a defence of publication where:

the publisher could prove that, after making all reasonable inquiries and on reasonable grounds, he believed the matter to be true -

et cetera. Then down the bottom of that page 66, still on paragraph 126:

The Commission found strong opposition to the proposal.

A variety of reasons are cited and they are stated there, set out in the bottom of page 66, your Honours can read, and over the page to the top of 67. That recommendation was rejected. If your Honours go to paragraph 146 on page 77, it is said:

The evidence does not support the argument that qualified privilege will encourage exposures, in the public interest. There is a more positive objection; the defence is wrong in principle. Reference has already been made to the suggested defence, to general damages alone, of a reasonable belief reached after reasonable inquiries. That defence was ultimately rejected on the basis that, if incorrect accusations occasion damage, then, as between the accuser and a passive victim, the accuser should bear the loss, however reasonably he might have acted. Under that suggestion -

et cetera:

To grant a defence of qualified privilege in respect of media publications necessarily denies to persons publicly defamed all redress. They would have neither correction order now declaration, no damages, even for actual money loss, not even a right of reply -

GUMMOW J: Your point, Mr Reynolds, is, is it, that what all this material shows is that these are matters for debate by legislatures rather than providing any firm foundation for some necessary constitutional implication? Is that what it comes to?

MR REYNOLDS: That is so. It simply shows that there are arguments on both sides of the ledger here and some people justifiably have a strong view about notions of broad free speech. Others, such as the Australian Law Reform Commission, have a more sober view about things.

McHUGH J: The difficulty about relying on this material is that it is dealing with a defence generally whereas the constitutional defence is much more limited. There are very powerful reasons for rejecting a general defence. After all, you would be asking plaintiffs to bear the costs of false publications and it might be thought, as a general proposition, that is too unfair. There is no benefit in a society. The argument in favour of the constitutional defence is that it allows the costs of the defamed person to be externalised for the benefit of society generally.

MR REYNOLDS: And that is a matter upon which minds could perhaps reasonably differ. But, your Honour, that in a sense is my point, and there are a variety of other matters that I wanted to raise with your Honours. I am not trying to engage in a sort of Law Reform Commission review of this defence. All I am trying to say is that there are very powerful arguments the other way which have appealed to the legislatures and as we will see later on to judges for, in many jurisdictions, in fact most jurisdictions. Once one establishes that there are very strong arguments in representative democracies for not having such a defence, then I submit, ipso facto, one has established that this defence is not necessary in the sense of being, as your Honour Justice Dawson said, an irreducible minimum defence. It is an arguable defence but it is not a necessary implication.

Your Honour has raised the question of costs. Can I mention in that context the discussion paper of the New South Wales Law Reform Commission which, at pages 180 to 181 - your Honours have these - points out the difference - and this is one of their reasons for - as I recall, I may be wrong about this but I think the "public figure" test was rejected there. One of the reasons why such a law would not be desirable here was because that there is no tort of privacy and as your Honours see on page 181 at paragraph 10.25, in America the plaintiff would generally not have to pay the defendant's legal costs.

McHUGH J: I was not referring to costs in that sense; I was talking about costs to the person. Reputation is what we sell. We sell it to various people, to employers - in personal relationships, in all sorts of relationships, and if somebody falsely disparages another person, and that is believed, then the person defamed suffers loss. Sometimes it is quantifiable in money, other times it is very difficult to quantify in terms of money. But it is a loss. And this constitutional rule in effect says, "Well, the injured parties have got to bear these costs because society as a whole is bettered by this freedom," and that is the question. But it is quite different from a rather general defence of reasonable inquiries, which affects everybody.

KIRBY J: Can I just add to that that relevant to that is a comment by Mr Maloney in a recent tort law journal, where he points out that one of the consequences of the deprivation of the right of defamation is an affect of deprivation of a property interest, and that traditionally this Court has been protective of that interest because of the constitutional requirements.

MR REYNOLDS: Well, your Honour, all I am really - I see the time - I am trying to put is that if one focuses on this question of necessity - perhaps I am being repetitive about this - then one has to point to a defence which is couched necessarily in the terms of an irreducible minimum.

If one rises above that and one is talking about a defence about which minds might reasonably differ and where law reform commissions and judges in representative democracies throughout the world have generally rejected such defences, in the context of sitting in courts in representative democracies and legislatures being part of representative democracy, if that is the case then because such a defence is arguably not desirable in those representative democracies, then it must not be, I submit, necessary, although I accept what your Honour Justice McHugh says, that there is a slight divergence between what your Honour would say is necessity in a vacuum and the notion of necessity in the Constitution. Your Honours, perhaps if that is a convenient time.

BRENNAN CJ: Very well. The Court will adjourn until a quarter past 2.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

BRENNAN CJ: Yes, Mr Reynolds?

MR REYNOLDS: Your Honours, before the luncheon adjournment I was dealing with the question of necessity and the constitutional defence adopted in the joint judgment in Theophanous. My final point on that issue is to focus briefly on the breadth of the defence and there are three matters that I would like to emphasise on that issue. The first is the question of a notion of political discussion. If your Honours go to Theophanous at page 124 your Honours will see that there is a very broad definition adopted there from Professor Barendt's work on Freedom of Speech, and may I add that this is a definition adopted by the ABC in its submissions. Professor Barendt there says:

"political speech" refers to all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about.

And that really shows how extraordinarily wide this defence would be if it incorporates that notion. Secondly, the notion of discussion which would encompass not only statements of fact but also comments - and your Honours will remember that there was one point where Justice Deane referred to that and that is a matter which your Honour Justice McHugh, in particular, has taken up in this context.

Thirdly, the notion of reasonableness which I had dwelt upon at perhaps too great a length earlier on this morning and the notion of publication being otherwise justified. When one takes the width of those three notions in conjunction with our cost rules whereby, if the plaintiff fails in his defamation case by reason of only this qualified privilege defence, the effect of all this is, I submit, that most plaintiffs are going to think, are going to have to think, very long and hard about even initiating proceedings because of the risks, the consequential costs risks, which are involved in them bringing of those proceedings.

If it be the case that the result of this defence is that the plaintiffs do not bring those proceedings, then the end result will be that the media are left, in effect, totally free to publish falsehoods in the area of political speech, as widely defined. If that is the result - - -

GAUDRON J: I do not know that it is totally free.

MR REYNOLDS: No, I accept that, your Honour. There are some caveats on it.

GAUDRON J: Yes. They are not free to publish what they know to be lies. They are not free to publish what they think to be lies. They are free to publish what they think is the truth, and then, subject to certain qualifications.

MR REYNOLDS: Your Honour, the difficulty from a plaintiff's point of view is that it is only at the end of a very long discovery process that he or she is even in a position to be able to form some estimate about the reasonableness of the defendant's conduct. One of the great problems that plaintiffs face on a practical day-to-day level is that this Court has held, in a case called John Fairfax & Sons v Cojuangco 165 CLR at page 346, that there is a principle called the "newspaper rule" which effectively prevents a newspaper or other media company from having to disclose its sources.

So, if one is dealing, in a practical context, with a plaintiff who is defamed in the course of some broad notion of political speech, and that person has to make a decision about whether or not they are going to bring proceedings, the - - -

McHUGH J: I was going to ask you about that. So, Theophanous has had no effect on the newspaper rule. I suppose, having regard to Cojuangco, it could not.

MR REYNOLDS: That is my submission, your Honour, and that is the problem - I do not make this as a submission based on my chamber's experience but a matter of the law in this case - that if your Honours envisage a situation of a plaintiff who is defamed in the course of political discussion as broadly defined and, in particular, where there may be one or more people who are giving the media information which is the source of the defamation, what is that plaintiff to do? If he sues these media companies who have enormous resources, they put that person through the mill, through a whole series of interlocutory proceedings, at the end of which he has very little chance even of estimating whether this defence is going to succeed.

The only commonsensical advice I am afraid that could be given to a plaintiff in that situation is to tell him about the costs risks, tell him or her about the difficulties involved, that it will not be until to the trial and perhaps only if the journalists hits the witness box it will have any idea about the quality of the sources and the advice which I suggest would have to be given to such a person is, "Don't sue". The effect of that is that within this whole area of political speech plaintiffs, if properly advised and if those persons are cautious, they do not sue.

If that is the case over a period of years, the media obviously are going to become aware of it and they will know that there is a far greater margin for this sort of discussion and they will become more and more aggressive and they will eventually - I do not necessarily say it has happened yet - start publishing material which is not only defamatory but which is false and where there is very little basis for the allegation and this really picks up a comment that I read from Stephens Case that your Honour Justice Brennan made in relation to what is in the interests or, on the other hand, inimical to representative democracies and I submit that it is inimical to representative democracy to have this sort of situation prevailing.

Any sensible person, I submit, would want to keep their heads well and truly down, would want to keep their activities out of so-called public affairs, and avoid the risk of being caught up in this sort of defamation. It is not, I submit, in the interests of our society; it is not in the interests of a democratic representative democracy to have this sort of situation obtain because at the end of the day people are not going to be willing to go into public life and that is inimical to a representative democracy.

Your Honours, I want to move now to the anterior question of whether or not a test of necessity was, in fact, cited in the joint judgment which is a matter that your Honour Justice Dawson has raised with me, and I think with my learned friend, Mr Graham, yesterday. Can I return to page 134 of the judgment and one perhaps needs to go to the bottom of page 133 where it said:

It does not seem to us that the efficacious working of representative democracy and government demands or needs protection in the form of an absolute immunity. There is nothing in that concept which requires that a person who publishes a statement be protected from the consequences of making a defamatory statement which is knowingly false. Nor does that concept require protection of a publication made with reckless disregard for the truth or untruth of the material published. The public interest to be served does not warrant protecting statements made irresponsibly.

Your Honours, my submission is that that test is different from a test of necessary implication from a Constitution. The reason I say that is that I submit that this concept of representative democracy incorporates within it notions which are not in the Constitution. This is a matter that your Honour Justice McHugh has taken up from time to time. I confess that there is some difficulty beyond taking these submissions past being an assertion and actually proving that within this concept there are notions which are drawn from outside the Constitution. With that caveat I have a series of numbered propositions or matters which, I respectfully suggest, show that this concept does include matters which are drawn from outside the Constitution.

If I may start with what is firmer ground for me. My first submission is that because a necessity test - and this is my first submission - was not applied then that, of itself, suggests that what the concept of representative democracy requires is different from what the Constitution necessarily implies.

TOOHEY J: Are you applying your test of necessity to any sort of implication of freedom of political communication to be drawn from the Constitution or are you applying it to the working out of the content of any such implication? It seems to me at the moment you are running two notions together.

MR REYNOLDS: I am, your Honour, I concede that, and can I go back to a submission that I made earlier? The way the majority has characterised this freedom in Theophanous is that it is, as I called it before, a protean concept. There is an implied freedom and it takes its content depending upon the particular area of law that one is talking about. The Court has held that in the area of defamation, the defence is to be framed in a particular way. The principle of necessity has to be applied, I submit, not only in drawing the initial implication, but also in determining every aspect of its content.

It is not enough for the Court to say, "This Constitution necessarily implies freedom of political communication" and then use that as the springboard for further implications or notions derived from this concept of representative democracy. If it is a freedom which is protean in form - and I am happy to assume that - then every aspect of its form in the guise of a defamation action must be derived necessarily from the Constitution because, in my submission, if it is not it offends that basic principle.

DAWSON J: Yes, but that is not what the majority say. I mean, you are not meeting their case. They say that the freedom which is to be implied is that which is implicit in representative government and that is an absolute freedom subject only to those qualifications which are necessary in a free and dignified society, whatever phraseology you use. That is the way they use it.

McHUGH J: That is the problem. The Americans had to put a First Amendment into their Constitution but we had a much better model and ours was implied; freedom of communication was implied in our Constitution, and you take your stand on that. That is the argument that you have to meet.

MR REYNOLDS: Your Honour, I am attempting to put it. I have really, if I may say so - this is only the first step in a series of points that I want to make about this notion and this concept of representative democracy. The first, as I said, was - - -

DAWSON J: I can understand what you say. You say you cannot do that because there are all sorts of representative democracies and all sorts of degrees of freedom of speech, so that was not a necessary implication. Let us look at what they did imply and see whether that is necessary. That is the appropriate - - -

MR REYNOLDS: That is so, your Honour, and I have done that already. I have said the necessity test was not applied, and when one looks at the ultimate result it is not necessary. I am now going back to the base test and, in effect, picking up a suggestion made at least by your Honour Justice McHugh, that there must be something in this concept from which the freedom is derived which is derived from outside the Constitution, and that is the key to understanding why it is that the joint judgment says this defence is implied from representative democracy; whereas it cannot be implied direct from the Constitution. So I am looking at whether there is something in this concept which is derived, as we say, aliunde the Constitution.

My first argument is to go back to the point I have already made and say, "If a necessity test was not applied that is one indicator that there is something in the concept of representative democracy which is not found in the Constitution." My second submission - and again I am only repeating the point - is that because I submit the constitutional defence is not a necessary implication from the Constitution, if the concept of representative democracy itself necessitates or requires that defence, then there must be something in the concept of representative democracy which is not in the Constitution, because if the Constitution does not necessitate it but representative democracy does, then there is some reason why these two concepts, representative democracy on the one hand and the Constitution on the other, are out of kilter. My third - - -

TOOHEY J: Can I just ask you this. Is it implicit in your argument that neither from the terms of the Constitution nor from its structure can any implication at all of a freedom of political communication be drawn?

MR REYNOLDS: Not at all, your Honour. No, I am happy - - -

TOOHEY J: It would seem to me you have got perilously close to such a submission.

MR REYNOLDS: No, your Honour, I am happy to accept that. If I may put it, if your Honour will forgive me, we are happy to accept the freedom as articulated by either your Honour the Chief Justice, your Honour Justice Dawson, or your Honour Justice McHugh, and all of those three Justices accept a freedom of some kind and - - -

TOOHEY J: But as a freedom to be drawn from what?

MR REYNOLDS: It is a freedom to be drawn from the Constitution.

TOOHEY J: Yes, I rather thought so.

DAWSON J: Sections 7 and 24.

TOOHEY J: Can you be a little more explicit?

MR REYNOLDS: Your Honour, primarily from section 7 and 24. Your Honour the Chief Justice has, if I may say so, spread your Honour's wings a little more broadly in that area and looked to some other provisions in the Constitution. I am not here, your Honour, articulating the defence, I am happy to accept it as articulated on either of those three bases and I do not challenge it.

Your Honours, my third point is that the concept of representative democracy as found in the various judgments of those who are party to the majority in Theophanous shows a variety of descriptions which are at work. Your Honour Justice Gaudron has referred from time to time to the principles of representative democracy, to the principles of representative parliamentary democracy and used, if I may say so, some other phrases. Your Honour Justice Toohey, together with Justice Deane, has referred to what your Honour has described as a doctrine of representative democracy. In Theophanous in the joint judgment at pages 134 and 121 we have reference to the concept of representative democracy and there is also reference in the cases to something called the notion of representative democracy.

But I submit one of the curious aspects about the use of that phraseology, particularly use of the expression "principles" and the use of the expression "doctrine", is that the principles and the tenets of that doctrine are not stated in the judgments wherein those phrases are used. My submission is that the use of these expressions "principles" and "doctrine" et cetera and the fact that the principles are not stated in the judgments of itself suggests that those principles, those tenets, are not to be found in the Constitution. Can I indicate my reason for that submission. It is that if the principles of representative democracy or if the tenets of the doctrine of representative democracy were stated in the Constitution, then use of those various expressions would first of all be otiose - there would be no necessity for it - and, secondly, use of those expressions would be unnecessarily vague and confusing when, if those principles or tenets were to be found in the Constitution, reference could simply be made to them.

Fourthly, a similar problem arises, in my submission, with the use of the term "essentials of representative democracy". That is a term which has been used - I will give your Honours brief references - in McGinty at page 222 and in Muldowney at page 522, I think on both occasions by your Honour Justice Toohey. In the Australian Law Journal Report - I should perhaps give your Honours the reference to that. The reference is [1996] HCA 48; (1996) 70 ALJR 200. I am trying not to take your Honours to the passages, but my proposition is this. If these essentials were stated in the Constitution, then the use of that expression is also otiose and, secondly, I submit as before, unnecessarily vague and confusing. It is only if the essentials, a fortiori the non-essentials, are located outside the Constitution does the use of that terminology have any function, otherwise one would simply be referring back to the Constitution.

Finally, in McGinty's Case at pages 222 to 223, your Honour Justice Toohey talks about giving content to the implication of representative democracy from two things. First of all, from political, social and economic developments and, secondly, in accordance with the day's standards and your Honour notes that the method of giving expression to that concept varies over time and according to changes in society. I respectfully submit that the use of that technique for giving content to this implication tends to suggest that the concept of representative democracy or some part of it is derived from outside the Constitution. So, I freely - - -

KIRBY J: Yes, but that is not uncommon at all. Take the postal, telegraphic, telephonic and other like services. All sorts of things have been found in that. It is a matter of reading a Constitution as a Constitution.

MR REYNOLDS: Your Honour, or a trademark is, perhaps, if I may say so, the more famous example. It changes in meaning from time to time.

KIRBY J: I think radio and television, which were not invented at the time of the Constitution, are more vivid examples.

MR REYNOLDS: Your Honour, I submit it is one thing to give content to a word in the Constitution to take account of obvious developments in our society. It is another thing to take a broad notion or a concept and give content to it in accordance with the judge's perception of democratic standards in our society as interpreted by him or her and that is the distinction that I seek to draw in that context.

Your Honours, if the concept of representative democracy contains notions which are not in the Constitution then I submit that five consequences follow. The first is, as your Honour Justice Gummow said in McGinty's Case - and I am afraid I do not have the reference - but the concept of representative democracy is a category of indeterminate reference because it is a concept which derives its content from outside the Constitution.

The second submission I make is that if the content of this concept is derived from outside the Constitution, then it is, to use the language of the majority judgment in the Engineers' Case at page 145, "a vague, individual conception of the spirit of the compact". The third submission is that because the constitutional defence is based on the requirements of what I submit is this vague conception, then three consequences follow. First, the defence is not based, not implied from the Constitution. Next, inevitably the defence is not a necessary implication from the Constitution and, finally, the defence is formed, as the Engineers' Case says at page 145, on "a vague, individual conception" of the Constitution.

Your Honours. I would like to move now, if I may, to the question of the ambit of this defence which, as your Honours would appreciate, is a very important issue, both doctrinally and also from the point of view of my client. If Your Honours go to the case stated book, the defence is set out at the bottom of page 65 and I will take your Honours principally to page 66 and while I am dealing with this I would ask your Honours to have open - your Honours should have a copy of Mr Richard William Potter's affidavit - I am not reading it, but I am just using it because it sets out in a convenient form the changes which have taken place to the defence, which I will come to in a moment. If your Honours go to page 66 of the case stated book, your Honours will see that this is, on its face, New Zealand, New Zealand, New Zealand from start to finish. If your Honours compare the common law defence and the particulars and go to paragraph 11 which is on page 67 your Honours will see again that the particulars in the context of the common law defence are New Zealand from start to finish.

When your Honours go to paragraphs (a) and (b) on page 66, your Honours will see that the expression "government and political matters" is given content, or, we would submit, defined by the two following paragraphs. In paragraph (a) it is:

discussion of government and political matters -

and it relates to members of Parliament of New Zealand in two ways: first, to their performance of their duties and, secondly, in relation to the suitability of persons for office as such.

GUMMOW J: I thought (ii) and (iii) of (a) were no longer pressed.

MR REYNOLDS: I am coming to that in a moment, your Honour. Likewise in paragraph (b), there is reference to the Prime Minister of New Zealand - who, of course, is my client - and there are three references to him; that is broadly published of and concerning him, and relates to his "suitability for office," and also relates to his:

performance, conduct and fitness for office as a member of Parliament -

So that, the only sensible construction of this pleading, we submit, is that it is New Zealand political discussion - in summary form - two ways: first of all, because it relates more broadly to members of Parliament and candidates therefor and, secondly, because it relates to my client in his capacity as the New Zealand Prime Minister.

Now, the background to what your Honour Justice Gummow has mentioned is that on the removal application your Honour Justice Toohey identified the New Zealand element of the case - or, as your Honour called it, the geographical extent of the freedom - as being an important issue. That is one of the bases upon which I submitted to your Honour, with Justices Gaudron and Toohey, that the matter ought to be removed, and it was one of the express bases, I submit, for removal, upon examination of the transcript.

When we filed our written submissions we, first of all, put submissions which related to whether the constitutional defence, as stated in the orders in Theophanous, was good in law. But we also put a fall-back submission that, even if the Theophanous defence was good in law, it did not extend to New Zealand politics. What happened - and this is deposed to in Mr Potter's affidavit, but it is not necessary because I am sure it is not a matter of disagreement - is that the media interveners, in their written submissions, abandoned the ABC on this issue. The Herald and Weekly Times, in paragraph 33, Fairfax is in paragraph 4.5 and Nationwide in paragraphs 1, 13 and 36 said something like The Herald and Weekly Times, who said this:

It cannot be rationally asserted that the Commonwealth Constitution protects defamatory statements about such persons -

that is, about New Zealand politicians. The ABC was put in a very difficult position when that happened, because even its friends, who are here in numbers, abandoned it on this point. Indeed, the Fairfax interests have submitted that this is not even a proper case to reopen Theophanous, and it must follow from that that the reason is that my client must win by reason of the ambit of this defence. Forced to deal with that very difficult situation, what the ABC did was they said in their submissions that they purported to abandon certain subparagraphs of this defence.

If your Honours go to pages 7 and 8 of the affidavit of Mr Potter, your Honours will see represented fairly clearly the constitutional defence as the ABC would now like to have it. Do your Honours have access to pages 7 to 8?

BRENNAN CJ: Yes.

MR REYNOLDS: Your Honours will see that effectively what the ABC purports to have done is to have deleted all the references to New Zealand so that the only averment is that it is in the course of discussion of government and political matters.

TOOHEY J: Mr Reynolds, when you say it purported to do that, what do you mean? Has there been any formal amendment to the defence in the form that we have it in the case stated?

MR REYNOLDS: No, your Honour, there has been no formal amendment of the case as stated by your Honour the Chief Justice and that is one of the points we make and what the ABC purports to have done is that there is a provision in the rules which entitles a defendant to abandon part of its defence.

GUMMOW J: Which rules, Mr Reynolds?

MR REYNOLDS: I am sorry, your Honour, my learned junior will fish that out for me.

GUMMOW J: But the State rules or this Court's rules?

MR REYNOLDS: No, in this Court's rules about abandonment and the ABC purport to rely upon that. We would say as a matter of construction, and I do not want to bog your Honours down in this, but that would entitle, say in a negligence case, one to drop a defence of contributory negligence and leave a defence of volenti non fit injuria standing. What it would not entitle a defendant to do is to drop out portions of one defence.

KIRBY J: Is that correct, because as I read the defence these are not cumulative, they are alternative and, therefore, in answering the case stated the Court could say as to paragraphs (ii) and (iii) et cetera no, but as to paragraph (i), "discussion of government and political matters", yes?

MR REYNOLDS: Your Honour, I do not think they seek to read this disjunctively because if they do it causes them all sorts of problems because if they start reading paragraphs disjunctively I will be putting very technical submissions which are premised on the basis that if you split this up disjunctively I am entitled to say it is bad in law for any number of reasons. For example, if one takes paragraph (a) or paragraph (b) or paragraph (c) in isolation, one cannot just mix and match and say it is disjunctive where we want it and conjunctive where we want it. One has to be consistent and I think the ABC are trying to be consistent by saying that it is conjunctive.

The problem is if it is conjunctive that that leads them inevitably into the problem that they have pleaded this as being discussion of New Zealand political matter. It goes further than that really and it is because we have sought from them, to anticipate this, particulars for them to provide to show that it is New Zealand political matter and they have refused to encapsulate that in a form of document and my submission is, first of all, that the so-called abandonment should not be permitted and, secondly, even if it is, the ABC should be forced to confine its case to the particulars spelt out under paragraph 11 relevant to the Commonwealth qualified privilege offence because, thirdly, there is no other way of categorising this matter complained of other than the way the ABC have themselves characterised it, namely, as New Zealand political matter.

KIRBY J: Is that the inference to be drawn? I mean, you might be right as a matter of technicality, but here we have a matter concerning our closest neighbour or neighbour with whom we have had long associations and on a prime television programme and with an introduction, as I understand, that related to Australian political matters, so that presumably somebody thought it was relevant to the Australian public to have a reproduced New Zealand television programme.

MR REYNOLDS: Your Honour, interesting like political discussion in Denmark or among the Eskimos, it is all interesting but it is not - - -

KIRBY J: I do not think you can quite equate New Zealand with the Eskimos.

MR REYNOLDS: Your Honour, this raises a matter that I have to come to in a moment, because if this constitutional defence is extended as a matter of necessary implication to New Zealand, then where is the line to be drawn? Next year we will be here - - -

KIRBY J: New Zealand at least is in the covering clauses.

MR REYNOLDS: Your Honour, it was possible for them to be part of our constitutional network and they opted out. The other thing is that if we go to New Zealand, the lower courts will be dealing with the Cook Islands next week and then we will be to Hawaii, then to the United States and on to Europe, et cetera. It is just not possible to draw a line on that issue. We suggest that is the reason why the implication should not be drawn so as to extend beyond Australia, because once one leaves these shores and one is not talking about Australian political matter, it is not feasible to draw any line at all.

McHUGH J: What about UN?

MR REYNOLDS: The United Nations, your Honour?

McHUGH J: Yes.

KIRBY J: OECD.

MR REYNOLDS: Your Honour, so far as the Constitution of this country is concerned, we draw the line at the territorial boundary. A line has to be drawn somewhere, I submit, because otherwise it amounts to reasonable discussion of things that an intelligent person would talk about wherever located in the universe. It is, I submit - - -

McHUGH J: But if you cannot segregate local government, State government and federal government discussion in this country, how can you segregate discussion of the EEC or the OECD, the UN, the Pacific rim?

MR REYNOLDS: Of course, your Honour, that is a reason for not drawing the implication in the first place, but we submit that a line has to be drawn somewhere that one goes back to the concept of necessary implication from the Constitution and one must bite the bullet and draw a line at a particular point, and that line is to be drawn when we depart from discussion of Australian political matter and move shore to foreign politics.

TOOHEY J: But Mr Reynolds, would not your argument hold equally good whether paragraphs (a) and (b) on page 66 were made in their present form or (ii) and (iii) in the case of paragraph (a) and (ii), (iii) and (iv) in the case of paragraph (b) were excised, and your argument would still be that discussion of government and political matters extending beyond Australia was not caught by any implied freedom?

MR REYNOLDS: Your Honour, we accept that because that is how the matter complained of would have to be characterised. What this is about is trying to squeak this past on a demurrer and say, "Oh, well, when you read this pleading and you compare it with the orders in Theophanous, there it is. It doesn't deviate at all", and that is what it is, I respectfully submit, a device so as to enable the ABC to squeak this past on a demurrer where they would otherwise fail.

McHUGH J: But does it not come down to this, that it does not matter what the discussion is about, if it is of interest from a political point of view to Australian citizens, then it is protected.

MR REYNOLDS: Your Honour, that is, I submit, not how the judgments in Theophanous are to be read when one goes to them, and I simply do not have the time. I am not dodging your Honour's question but one construes every line to them. When they talk about politics they talk about Australian politics. Justice Deane, for example, talks about Commonwealth and State holders of high public office. That is the ultimate genesis of this freedom, I think everyone agrees, is derived from - certainly as the Commonwealth is concerned - from sections 7 and 24. It is fundamentally electoral and fundamentally focuses on the election of representatives in this country.

McHUGH J: It might but to take a clear illustration, supposing somebody wanted to discuss representative democracy itself by reference to what happens in the United States or Canada in the course that that defamed somebody or published in Australia, they are Australians. Why is that not protected under the majority view in Theophanous?

MR REYNOLDS: Again, I come back to my submission that when one construes these judgments and looks to the definition of "political" it is implicit that reference is being made to Australian politics. I mean otherwise - and this is our other submission - if this defence does extend beyond our shores to New Zealand and to every other country throughout the world, then that is an additional reason why the decision should be overturned.

KIRBY J: I do not think the suggestion is it extends beyond our shores. The suggestion is that it extends in our shores because of an integrated world in which the media and matters that concern other countries concern us. That is the suggestion.

MR REYNOLDS: Your Honour, my response is that a line must be drawn otherwise we will depart from the Constitution altogether. It may be that that line is difficult to draw.

McHUGH J: I understand that but it seems to be a bit unreal once you have this wide-ranging defence. Take the discussion of the Olympics. Supposing in the course of discussing the Atlanta games somebody was defamed but it is relevant to a discussion of the Sydney Olympics. Why cannot the defence extend to that discussion provided it takes place in Australia?

MR REYNOLDS: My answer is simply because it is not a necessary implication from our Constitution. The fact that it is difficult to draw the line is, as I said before, a reason why the implication should not be drawn in the first place. I do not know if that is the direction in which your Honour is trying to push me. Ultimately - and I will be responding to Justice Dawson in due course - we do not submit that Nationwide and ACTV should be overruled. But if they are to be upheld and the freedom is to remain even as - or narrowly articulated in those cases, that necessitates a drawing of the line because of the genesis of the implication as a matter of necessity in the words of our Constitution. Your Honour, I cannot take it any further than that.

The only final point we make is that if one reads the defence as noted in pages 7 to 8 of Mr Potter's affidavit it reads as a nonsense:

published:

(a) pursuant to a freedom guaranteed by the Commonwealth

Constitution to publish material:

(i) in the course of discussion of government a political

matters;

published:

(b) (i) in the course of discussion of government and

political matters:

It just does not make sense. Your Honours, I finish with the question of New Zealand by taking your Honours very briefly to a case SOS (Mowbray) Pty Limited v Mead (1972) 124 CLR 529.

GUMMOW J: I thought we did not have to worry about those.

McHUGH J: I thought they were overruled by Cole v Whitfield.

MR REYNOLDS: I am taking your Honours to a very general statement of principle by Sir Victor Windeyer which is to be found at the bottom of page 574. About six lines from the bottom his Honour says:

What does cause me anxiety is the still greater danger of us putting more and more matters outside the authority of all the parliaments of Australia, Commonwealth and State. I think that we should be careful not to do this, except when the Constitution clearly demands it, and that the denotation of the concept that is embodied in the words of s 92 as now interpreted must be accordingly confined. If in doubt whether a particular matter was within the scope of the freedom that s 92 proclaims I would resolve the doubt in favour of the Parliaments.

Your Honours, on this issue we say that any doubt ought to be resolved in favour of not saying that New Zealand political discussion is a matter beyond regulation by the Parliaments.

May I come to the question of overruling. I want, if your Honours will put up with it, to move fairly swiftly through this area because I have by my count about an hour and I still have to come to the common law. Your Honours have the benefit of some submissions from Mr Graham yesterday, so I will simply try and summarise my submissions in point form. The first point is that the arguments I am putting were not put in Theophanous and that even the staunchest adherents to precedent allow overruling when important arguments were not dealt with in the earlier case.

Secondly, we suggest that a majority of the factors referred to in John's Case 166 CLR 438 are made out. Thirdly, we submit that the decision in Theophanous is, to use an expression that your Honour the Chief Justice used in Cunliffe, fundamentally erroneous, and that for four reasons: first of all, by reason of the doctrine of non- applicability of statutes; secondly, by the deletion of margin of appreciation in respect of judicial review of statutes in the common law; thirdly, that the doctrine of necessity in regard to implications from the Constitution has been breached contrary to many cases and principally Engineers' Case; and fourthly, that the implications of a constitutional defence is based on notions from outside the Constitution contrary to the Engineers' Case.

The matter I would like to deal with briefly is the question of whether the Court can refuse to overrule a decision which is fundamentally erroneous. That is our submission and our answer to that is no. Our reasons are as follows: first, that if one even contemplates the non-overruling of a case which is conceded to be fundamentally erroneous, that there are very grave problems so far as the rule of law is concerned. Your Honour the Chief Justice raised some matters with Mr Graham yesterday which I submit might be relevant where a Judge in the quiet of his or her chambers is looking at two possible arguments but which the Justice regards as both reasonably open.

But where we are talking about an error which is ex hypothesi, I submit, fundamental, then it is not open to the Judge, I submit, to say that he or she will be bound by the precedent. The rule of law which, as my friends say, is implicit in our Constitution requires in that situation at least a Justice of this Court to be faithful to his or her interpretation of it so far as the doctrine of fundamental error is concerned.

The position can best be illustrated by focussing briefly on the position of my client. If a majority of your Honours were to hold that Theophanous was fundamentally erroneous and yet refused to overrule it, my client, I submit, would have a legitimate grievance on that issue. It also raises problems - and I only touch on this lightly - - -

BRENNAN CJ: What do you mean by "fundamentally erroneous"? Are you speaking in terms of the necessity argument?

MR REYNOLDS: Your Honour, I listed the four fundamental errors: non-applicability; deletion in margin of appreciation; necessity of implications; and implications based on notions drawn from outside the Constitution. They are the matters I am focusing on. If I may put it colloquially, they are hit or miss submissions. I submit that if they are correct your Honours have, in effect, no discretion on overruling. If they are incorrect, then I am out of Court and Theophanous stands. But there is no, I respectfully submit, middle path open to the Court if that is the nature of the submission that is put.

The other difficulty about even envisaging leaving a case which is accepted ex hypothesi to be fundamentally erroneous, leaving it un- overruled, if I can put it that way, is that it raises all sorts of problems for the future. How are judges at first instance, for example, to interpret the notion of reasonableness or otherwise justified when a majority of this Court have told them that the doctrine is fundamentally erroneous? How is the Court to approach or how are lower courts to approach an argument that the doctrine should be extended to other areas, for example, governmental secrecy to which it has already been extended? What does a judge do in that situation? Does a court say arbitrarily, "We're not going to extend this doctrine into that area because it's fundamentally erroneous", or otherwise draw distinctions between areas which are inevitably arbitrary. That - - -

KIRBY J: Is not that what you in Victoria are, upon one view, doing by saying, "You can keep the first two cases, arc them off but don't extend it to Theophanous."

MR REYNOLDS: There is a very clear boundary, I would submit, between a restriction on legislative power and allowing the freedom to operate on the common law. There are decisions which have applied this doctrine of representative democracy, this implied freedom to the common law and to the principles of equity. For example, there is a decision unreported, which we can make available to your Honours, of The Commonwealth v John Fairfax where Justice Bryson in the New South Wales Supreme Court was dealing with a case that was very similar to the one your Honour Justice Gummow appeared in years ago before Justice Mason which had the same name, The Commonwealth v John Fairfax, and that was an application to restrain the Fairfax Company from publishing matter which the Commonwealth regarded as governmental secrecy. The particular matter involved the Chinese Embassy.

Your Honour may remember this eventually getting into the press last year, and his Honour held, as I recall, that - and we have a copy here if your Honours wish to see the case - the principles relating to governmental secrecy were also affected by the constitutional defence. This is an area which, as your Honour Justice Kirby has noted in, I think, a couple of cases, would also be relevant to the area of contempt, at least, and one writer has said that it would also be relevant to the area of copyright, although I concede I do not quite follow how. At any rate, if there is this possibility of developing the principles to other areas - and they have already been developed to some extent - then the Court is either going to have to develop principles in those areas, conceding ex hypothesi that the whole doctrine is fundamentally erroneous or arbitrarily draw a line and say, "No, we won't extend it further." That, I respectfully submit, is not a desirable state of affairs.

GUMMOW J: What is the date of Justice Bryson's decision?

MR REYNOLDS: Your Honour, perhaps one convenient course may be for me to hand it to the clerk of the court. It is dated 26 June 1995, and I will hand up a copy to the clerk and he can, perhaps, make copies available to your Honour. We only have one copy of it.

McHUGH J: Did that not go to the Court of Appeal?

KIRBY J: It did.

MR REYNOLDS: Yes, it did enshrouded in secrecy in a closed court and I think from - - -

KIRBY J: No, I sat in that case. It was not a closed court. I do not think I have ever sat in a closed court ever.

MR REYNOLDS: Your Honour did in that case I think.

KIRBY J: No. Orders were made and the leveller expedient was followed to avoid unnecessary publicity.

MR REYNOLDS: I bow to your Honour's greater memory on that issue. At any rate we have the decision and we can make it available.

McHUGH J: It must have been late in proceedings because there was some mysterious case going on in the Court of Appeal which nobody knew the names of the parties of or what it was.

MR REYNOLDS: I think that was this but I defer to your Honour's memory of it.

KIRBY J: I think the decision of the court is reported and I think we made special orders that it would be reported but deleting references. I may be wrong, but that is my recollection.

MR REYNOLDS: I think your Honour may be thinking of Doe v John Fairfax which was heard around the same time and my recollection is there was an application for a closed court by Mr Doe, whoever he was.

McHUGH J: I am sorry to interrupt you, but my point is did the Court of Appeal say anything about this doctrine?

MR REYNOLDS: No, I do not think so. I think, your Honour, it was dealt with, if I may respectfully so submit, fairly peremptorily in the Court of Appeal and I do not think there is much in the judgments which we would bother your Honours with.

GUMMOW J: Is Doe the contempt case?

MR REYNOLDS: Doe v John Fairfax is the contempt case and it is on our list of authorities.

BRENNAN CJ: I can only say that this seems to be some arcane New South Wales exercise. Could you inform the rest of us what it is all about.

MR REYNOLDS: I am sorry, your Honour, I do not want it to feel like it is the old pals act - - -

KIRBY J: Your point is that once these things are let run there are a whole series of possibility or possible applications and that that is a reason why you do not let them run.

MR REYNOLDS: Exactly, your Honour. Can I deal, if I may briefly, with the question of reliance which the media companies focus on on the question of precedent.

McHUGH J: This will have to be an argument about general reliance because the affidavit material is out.

MR REYNOLDS: Yes, your Honour, and I should make good my earlier concession that anyone in Australia, or for that matter probably elsewhere, is entitled to rely on the ratio of decisions handed down by this Court. The ratio, as your Honours know from our earlier discussions, of these decisions is very narrow. Ultimately if the media are going to say or other people are going to say that they read judgments and relied on them then they cannot just say they have a little bit of legal knowledge and they just looked at the orders, for example, or read bits and pieces out of the judgments.

If they are going to say that then they have to be accorded full legal knowledge and it must be assumed that they had proper legal advice in dealing with the matter. So, the first point is that the rationes of those two cases are very narrow and in particular the notion of reasonableness is as yet undefined, so that any person asserting reliance has not got a very precise defence which he can be said to have relied upon, he has only in effect relied upon the possibility of the tribunal of fact in the area of political speech finding ultimately that his conduct was reasonable.

I would like to focus, if I may, briefly on that for a moment because what we submit is that, given the existence under the Codes in Queensland in Tasmania of defences under section 377 of the Queensland Code and section 16 of the Tasmanian Code, by reason of the existence of section 22 of the New South Wales Defamation Act and by reason, we submit, of a common law defence being available in the other jurisdictions in line with what your Honour the Chief Justice and your Honour Justice McHugh said in Stephens' Case, that when one looks at those defences which we concede obviously are available and one focuses back on the issue of reasonableness and the narrowness of the defence is confined to Commonwealth and State members of Parliament or holders of high public office, it is not really possible for the media to assert detrimental reliance for the simple reason that they have other defences which operate as the joint judgment said in respect of section 377 in a very similar way, because this defence does not have an enormously precise degree of content. Those other defences, in effect, provide a defence in this general area. So that is our first submission.

The second submission is that even if there is detrimental reliance, the Court should disregard that matter. The reason is this. When one talks about detrimental reliance, one is obviously talking about injustice. If the Court were looking at the issue of reliance, it would have to weigh up on the one hand the unfairness to a defendant in overruling the defence, but on the other hand, the unfairness to my client and other plaintiffs in applying a defence which is, the Court concedes, fundamentally erroneous. My submission is that if that weighing exercising is conducted, the rule of law demands that the Court prefer the interests of my client when that balancing exercise is conducted. Finally on reliance, can I say very very briefly - - -

BRENNAN CJ: I notice you are looking at your watch, understandably, Mr Reynolds.

MR REYNOLDS: Yes, your Honour.

BRENNAN CJ: You may have until at least the rest of the afternoon and we will review, perhaps at that time, how much longer you ought to have, if any.

MR REYNOLDS: Thank you, your Honour, I am doing my best. I am afraid I was a little show this morning.

BRENNAN CJ: Yes.

MR REYNOLDS: Can I just say a couple of things about prospective overruling, which we do not raise as an issue as such? If the Court formed the view that it was most concerned in this case about reliance, can I respectfully suggest two possibilities which would be available to the Court. The first is that - and may I preface this remark by saying that the difficulty about anyone raising this is that a prospective overruling issue is probably a two or three day case in itself.

The first possibility is the Court could relist this matter, having said in a note to the parties that it was a matter that the Court wanted to entertain argument on. I would just like to flag, in one line, the submission that I would make on such an occasion. Can I give your Honours a reference to an article in the Law Quarterly Review of 1996, volume 112, and I will only give your Honour the page, which is page 413. There is reference on that page to the doctrine of overruling which applies in Europe, and the principle which has been adopted - and there are cases there cited - is that there is no full prospective overruling but, rather, what they call "temporal limitation" of rulings.

It is very important to my client in this case, because my client's publication antedated Theophanous. So that, even if there was a prospective overruling, we should say there would be a terminus ante quem, and that would be the time Theophanous was handed down. So, even if there was a prospective overruling, we would submit it should not be complete but, rather, limited back to the date Theophanous was handed down and, therefore, my client would be free of the defence.

Secondly, one other possibility - and I hope your Honours do not think me impertinent for suggesting this - is that, given prospective overruling is not, we submit, really raised in this case for the reason I just mentioned, it might be possible for the Court to deal with the issues raised in this case and then say in the judgments that it would be open for a media company - or, for that matter, any other person - to reargue on another occasion, perhaps on removal, that the overruling should be limited to a particular time, probably between the decision in Theophanous and the time when Lange's Case was handed down. That is another possibility. But, of course, our base submission is that your Honours should not be concerned with this issue of reliance.

Your Honours, I am trying to get to the common law, but I undertook to your Honour Justice Dawson that I would respond to your Honour's suggestion to my learned friend, Mr Graham, that the submissions advanced by us necessarily involve the overruling of Nationwide News and ACTV.

Your Honours, we do not ask that those decisions be overruled. I respectfully submit that the submissions that I have made would not require the overruling of those two decisions. Can I indicate why?

DAWSON J: What is left on the basis of your submissions?

MR REYNOLDS: What is left, if I may put it positively, is that there is an implied freedom of political communication, it operates as an inhibition on Commonwealth legislative power. It may extend further of course to the States and executive power, but I do not want to get into that area. Thirdly, the relevant sections in those two cases were invalid. I submit that beyond those three propositions there is no ratio in those two cases. The reason is, if I can put it in a sentence, that there is no commonality of reasoning on the issues between any four Judges. So one way that I would like to deal with the matter if I may, especially given the time, is that if my learned friend, Mr Spigelman, wants to advance that - and I gather he and the other media interveners do - then it is open to him to indicate that there is a commonality of reasoning between four Judges in - - -

DAWSON J: The only four possible are the Chief Justice, Justice Toohey, Justice Gaudron and Justice Deane.

MR REYNOLDS: And I submit that there are differences between them and the net result is - I do not say there is no ratio. That is an absurd proposition, but the ratio is very, very narrow. It is one of those cases - and I think your Honour Justice McHugh has written judicially about this very point - which is not authority for anything more than the precise issue in question. It is authority for a bit more, because I concede that it is authority vis-a-vis the implied freedom and certainly is a limitation on Commonwealth - - -

DAWSON J: It may not even be an implied freedom on one view of it.

MR REYNOLDS: That is so, your Honour. One other problem, if I can just flag this as much for my friends as anyone else, is that those cases could be upheld on your Honour Justice McHugh's reasoning. I do not think anyone is, if I may respectfully say so, attacking that reasoning. That may well mean that those decisions could stand on the basis of that reasoning. Your Honour was one of five Judges I think in ACTV and the decision could stand, albeit the Court might say that it was only sustainable, for example, on the basis of your Honour Justice McHugh's reasoning. So that there are difficulties here. I had prepared a very full submission, but I hope your Honour will excuse me and let me put it in reply perhaps.

DAWSON J: I understand what you are saying, yes.

MR REYNOLDS: Common law, your Honours. Can I just tell your Honours briefly what I am going to try and do. First of all I am going to look at the pleading. I am second of all going to review the authorities very briefly. Thirdly, I am going to look at the applicable principles; fourthly, at the notion of the common convenience and welfare of society which is referred to in all the judgments; fifthly, I am going to make a submission that even if your Honours are against me on precedent, on principle and on the question of common convenience and welfare of society and your Honours regard the defence as a desirable one, that your Honours should leave it for the legislature. Sixthly, I need to deal with a passage on page 140 of Theophanous which, at least prima facie, gives me some difficulty.

So far as the pleading is concerned it is contained in the case stated book relevantly at pages 66 to 68. It begins at the bottom of page 66. It is a common law defence, and your Honours will see in paragraph 10 on page 67 - I am going to underline certain words. In paragraph (a) the matter complained of related to a very broad expression. It related to subjects of public interest and it related to political matters. In paragraph (b) there is a reference to discussion of political matters alone. There is also reference to a moral duty and an interest in the viewers which is said to correspond with that duty. We do not quibble with that aspect of the pleading. That interest is said to be reciprocal, that is to correspond with the duty.

The only particulars which are said to warrant the existence of a duty or an interest on the part of the viewers are those contained in paragraph 11 of the pleading. Your Honours will see that they are all very general matters, very general political matters which relate entirely to New Zealand. New Zealand is mentioned in every one of those paragraphs. It is important for me to note that there is no averment that there was a publication on an occasion of qualified privilege. What is done here, contrary to what Justice Dixon said in Guise v Kouvelis, a decision which is quoted by your Honour the Chief Justice in Stephens' Case, is to plead a qualified privileged defence as a sort of general formula.

We do not know exactly who these viewers are. We do not know precisely why the ABC are said to have a duty. We do not know precisely why all of the viewers or anyone living in Australia are said to have an interest. There is no precise occasion specified as there would normally be with a common law pleading. No particular viewers are identified and, for example, New Zealanders who are said to have a particular interest in this matter, or New Zealand electors. The privilege is said really to arise purely by virtue of the categorisation of the subject matter. So all that the ABC needs to prove to come within this defence is if it can categorise the matter complained of as a matter of public interest, a political matter. If it can so categorise the matter then, prima facie, the privilege obtains, so the ABC says.

The reference to political matters also brings into focus that definition which I read to your Honours from Theophanous, which I recall the ABC embraces. So that if your Honours were thinking of adopting this as a defence which could be pleaded your Honours should, I respectfully submit, bear in mind the definition which the ABC has given to this concept.

So we have here a defence which is applicable to the publication to any person so long as one can categorise the subject matter as a matter which was of interest to an intelligent person, in effect. That is the breadth of this defence. It is, I submit, far wider than anything in the courts have ever even considered, certainly prior to the decisions in Theophanous.

It is, for example, far wider than the defence articulated by the United States Supreme Court in New York Times v Sullivan. There the defence was restricted to public figures. Here the defence extends a hundredfold wider than that, more, because it extends to any form of discussion which can be given this categorisation of being a matter of public interest or political discussion. It is, as I submit, the widest defence which has ever been considered by a court in a common law jurisdiction.

On the question of precedent, your Honours should have a list of authorities, a document headed:

Lange v ABC

Authorities Rejecting Common Law Qualified Privilege Defence Contended for by ABC

Your Honours will see just looking at that briefly the welter of occasions where defences usually in a much narrower form but still being species of this kind of pleading have been before the Court. Justices Dixon and Evatt rejected it in Lang v Willis. Justice Latham in Loveday. The whole of the Court of Appeal in Parker's case. The Court of Appeal of New South Wales in Morosi. The Full Court of Western Australia in Wiese's Case. I emphasise that a number of these cases are strike outs. Like Justice Dixon in Lang v Willis, the courts have held that defences in even narrower forms such as those your Honours considered in Stephens' Case are so untenable that they are eliminated at an interlocutory stage.

The position is the same in New Zealand. I would refer your Honours in particular to those two decisions in the Court of Appeal and if I may to the judgment of Sir Robin Cooke as he was at that time, in Templeton v Jones which was also a strike out application. In the Courts of Canada the matter has been considered and in decisions which were applied by your Honour the Chief Justice and your Honour Justice McHugh, they have rejected it. They have looked at it recently again in Manning v Hill and they have rejected any such defence.

The position in the United Kingdom has been uniform for well over a hundred years. In particular, there are recent cases which we have listed on page 2 where, I think post-Theophanous, this kind of very broad general defence, usually articulated in narrower terms, has been rejected by the defamation list judge, Sir Michael Davies, and also by other Judges in the United Kingdom.

Your Honours will notice that these were generally strike-outs or what amounts to the same thing, applications for leave to amend a defence, which were refused for the reason that they would have been struck out if they had been in the original pleading.

KIRBY J: None of these would have been similar exactly to the New Zealand situation. What do you say is the common theme between these qualified privilege defences and the one that is asserted by the defendant here?

MR REYNOLDS: I am sorry, your Honour?

KIRBY J: You say in your heading "Authorities rejecting common law qualified privilege defence contended for by the ABC". Now, what is it that you say is being contended for by the ABC that is rejected in all these cases?

MR REYNOLDS: Well, your Honour, generally I take three forms for these pleadings in these cases. One is that occasionally one sees fair information on a matter of public interest that is universally condemned. Sometimes it is pleaded more narrowly to be - - -

McHUGH J: I notice you have not got the leading case - sorry, Webb held that there was such a defence, did it not?

MR REYNOLDS: Your Honour the Chief Justice referred to this in Stephens. There is a dictum in that case. I do not want to delve into this deeply but it has been explained away in later cases. They said his Honour did not mean what that dictum ex facie could be read to mean. I was giving your Honour a list: fair information on a matter of public interest; pleadings which are more like that considered by this Court in Stephens where there is publication concerning a politician often at an election time. Those too have been rejected and your Honours will see how much narrower that is as a concept rather than this broad notion of political matter which is pleaded here or a matter of public interest.

McHUGH J: What about Braddock? Did it not succeed in Braddock v Bevins?

MR REYNOLDS: Braddock v Bevins was a case - I would have to fish it out, your Honour. Your Honour is quite right, but on a very narrow basis it was upheld and I do not have the details of it at my fingertips. It is a case which is referred to by my friends and which is cited against me. I would prefer to deal with it in reply, and the submission that I will be making is that on any view it would not be authority for the breadth of defence considered here, in particular, in a media publication. I would prefer to deal with that, if I may, in that context. So, your Honours, we submit there is really a uniform position that has been adopted by judges on this question.

McHUGH J: What was the third category you were giving? You gave fair information.

MR REYNOLDS: Yes, your Honour, I think what one might call a section 22 style defence and perhaps Stephens is an example of that reasonable publication to members of the community often about political matter. That is perhaps only slightly different from the previous example I gave. That is only a loose summary and I do not want to focus precisely on the defences which were looked at in these case, but they are all peas in a pod, I submit, they are all species of this one type of defence and this, I submit, is the widest defence which the courts really have had to consider.

A defence in much narrower terms was rejected by your Honour the Chief Justice, your Honour Justice Dawson and your Honour Justice McHugh in Stephens' Case, and I will not go through those judgments although I would otherwise have done so if there were time, but can I just make this one comment? Your Honour the Chief Justice and your Honour Justice McHugh raised two slightly different defences which would be available to the media in some situations, but both defences, as your Honours articulated them, were hidebound by a number of qualifications. I will not go into them, your Honours know what I am talking about.

When one compares this defence, it is positively denuded of any qualification at all. Provided the matter complained of can be categorised in this broad sense as being a political matter or a matter of public interest, then that it is. It is prima facie covered by qualified privilege. Your Honours rejected a much narrower pleading in Stephens and I submit your Honours should reject this pleading also for the same reasons.

As a question of principle, the courts - and I return to this pleading briefly - have held consistently that the media is under no duty to publish material to the public because the subject matter is one of public interest or in which the public is interested. The authorities for that proposition I will briefly listed: Morosi at pages 778C to D, 790D to E, Wiese at page 271 point 4, 268 point 8 where Justice Pincus in the Comalco Case is adopted, Stephens' Case itself at page 261 point 6 and, for that matter, throughout the judgments of your Honour the Chief Justice, Justices Dawson and McHugh, and Blackshaw v Lord at pages 35 and 42.

Here we submit that it is impossible to suggest that there can be any duty to publish matter to the Australian public simply because it can be categorised as New Zealand political discussion. We suggest that that is an untenable proposition and, on that basis, the defence is bad. Likewise on the question of whether the whole of the viewing public of the ABC have an interest in this programme, we submit that it is well established that "interest" in this context does not mean "interesting", it does not mean "news" and it does not mean "a matter of public interest". I would like very briefly to refer your Honours to Stephens' Case at page 261 where that point was made at point 6 by your Honour Justice McHugh. I will just read one sentence:

common law courts have repeatedly held at a person has no legitimate interest or duty to publish defamatory matter to the general public if no more is established than that the subject matter of the publication is one in which the public is interested.

I would also refer, in this context, to Blackshaw's Case at page 35G. On the question of the common convenience and welfare of society, your Honour the Chief Justice has noted in Stephens Case that the courts have always returned to that formula in two contexts; first of all, in defining the notion of duty and interest and, second of all, in deciding whether or not there ought be some incremental development of the law in this area. We submit that it would be quite contrary to the common convenience and welfare of society for a defence of this width to be embraced by this Court.

In that context, we repeat the earlier submissions made in respect of the constitutional defence. Your Honours will remember that I quoted from Manning v Hill, quoted your Honour the Chief Justice in Stephens Case, and listed a variety of factors as to why that defence was not desirable. I repeat those submissions again in this context as a reason why your Honours should not regard this defence as being in accordance with the common convenience and welfare of society, in particular because all of your Honours' predecessors have formed the view that that is an extension which is not appropriate.

In particular, in this pleading, there is no balance at all, as I mentioned before. If I can briefly address your Honours Justices Gaudron and Toohey on this issue, your Honours reviewed New York Times v Sullivan in Theophanous Case. Your Honours formed the view, I respectfully submit quite appropriately, that there was not enough balance in that defence. There was not enough appreciation given to an individual's reputation. But that defence is, for the most part, a much narrower defence than this one to the extent that the notion of a public figure is much narrower than the notion of political discussion, or a matter of public interest. So that your Honours, I respectfully submit, consistently ought find that this defence, as a matter of the common convenience and welfare of society, is not available to the media.

If your Honours were to adopt a defence of this kind, it would mean virtually that no plaintiff - no plaintiff would be able to bring a defamation action, except in relation to a publication which related to what one might call purely private conduct and, even then, there would be the possibility of the media saying in respect of someone who is involved in public life, "They say we are entitled to reveal this because he is left open to blackmail," or, "It may have influenced the decision that he made", or some like comment saying that purely private matters ought to be dragged into the political arena in the way that we know that they are from time to time.

The difficulty is that with this defence, which is many times wider than the constitutional defence embraced in Theophanous, the whole of the area of public debate will be totally dominated by the media and they will have no restriction, because only a fool really would take on the media in the area of public discussion unless he knew before the matter was litigated that he could prove malice. Because if he could not prove malice affirmatively, which is a difficult matter, he would simply be out of court. Once the media realise that it is possible for them to publish in this area of political discussion virtually without restraint, the end result will be that public debate in this country is inevitably contaminated with not only falsehoods but defamatory falsehoods, and that does not contribute to the welfare of this society.

My second-final submission is that any expansion is a matter for the legislature. It is perhaps a matter which one would like to develop in a little more detail, but I would like to put a series of points for your Honours' consideration on this, I submit, difficult question. The suggestion is often made in the cases - and may I refer your Honours particularly to Templeton v Jones, Mr Justice Cooke at page 459, and to the unreported decisions recently in the United Kingdom of Hamzah and Cash and the decision in Reynolds - that is the Irish Prime Minister, Albert Reynolds. The suggestion is often made in the cases that, if there is to be any expansion of common law qualified privilege in this area, that it is a matter for the legislature.

So that even if your Honours were convinced that the principles which apply in this area could be extended to allow this defence and even if your Honours were convinced the common convenience and welfare of society accorded with the development of such a defence, I submit as a fall-back submission that your Honours should still not enter the fray and should leave this issue to the legislature.

Can I indicate the reasons for that submission. They are as follows. First, the non-availability of common law qualified privilege in cases like the present is deeply entrenched, as I have sought to show, in the case law, to the point where, as I said, these defences are routinely struck out. Secondly, Law Reform Commissions in this country, and for that matter in other common law jurisdictions, have regularly reviewed the law in this area and so do the legislatures. They review in particular this defence. It is not like normal common law area which the Law Reform Commission and the legislature may not even look at for years, like the law relating to animals on highways or something like that.

This is an area, defamation, where almost year by year, the Law Reform Commissions are examining these questions and where they are doing so by reason of the injunction of the legislature. The legislatures are reviewing these principles, as I say, almost on a yearly basis, and in particular whether a defence of this kind or a narrower defence, as found in New York Times v Sullivan, ought be adopted by the legislature as a matter of policy.

KIRBY J: It may be more accurate to say that law reform bodies review it, the legislatures rarely get round to doing so. It has sometimes unkindly been said that that is because of the interest of legislators in the present or the previous state of the common law.

MR REYNOLDS: Yes. That may be the case, your Honour. But at any rate, Law Reform Commissions do report to the legislatures and they only, as I understand it, investigate matters at the behest of the legislature or with the connivance of the legislature. This is an area which, perhaps more than any other, has been traversed by the Law Reform Commissions and examined, we submit, by the legislatures. So far as we know - and I think we have looked at most of the reports - no Law Reform Commission has ever even recommended a defence which is as wide as this one. Many, such as the Law Reform Commission over which your Honour Justice Kirby presided, have looked at defences which are narrower, for example, because they import a requirement of reasonableness, and have rejected those defences, and, we submit, for very good reason.

In any event, the legislatures must be taken to have considered the possibility of such a defence and have not amended the legislation so as to provide for it. Can I give your Honours a reference to the case of Reynolds v Times Newspapers. It is a very brief judgment but there is a dictum in that case where the judge says - and I will not take your Honours to it because your Honours do not have it - that the court should not interfere if Parliament has declined an opportunity to change the law.

So the distinction I am trying to draw is between an ordinary area of the common law which is not looked at regularly and an area where the legislatures and the Law Reform Commissions regularly look at this precise issue and have decided usually not to intervene in that area. An important reference in that context, and this is not on - - -

McHUGH J: Excuse me, what is the reference to Reynolds?

MR REYNOLDS: It is unreported. It is on our list, as are I hope all our cases. It is on the second page. It is unreported, 25 November last year, Mr Justice French. His Honour referred to a five- point summary which we suggest is a most convenient passage. The decision called C v Director of Public Prosecutions [1995] UKHL 15; (1996) 1 AC 1, which your Honours do not have, and the relevant passage is at page 28 and may I add that this is the passage which his Honour Mr Justice French in Reynolds' Case pointed to in considering a very similar issue to that which your Honours are considering here today. He referred to Lord Lowry's five-point summary of this area at page 28 of that report in (1996) 1 AC and the five points are these:

(1) If the solution is doubtful, the judges should beware of imposing their own remedy. (2) Caution should prevail if Parliament has rejected opportunities of clearing up a known difficulty or has legislated, while leaving the difficulty untouched. (3) Disputed matters of social policy are less suitable for judicial intervention than purely legal problems. (4) Fundamental legal doctrines should not be lightly set aside. (5) Judges should not make a change unless they can achieve finality and certainty.

As I say that five-test passage was adopted by - - -

GUMMOW J: What does "rejected" mean in the second proposition?

MR REYNOLDS: "Rejected opportunities".

GUMMOW J: What does that mean? How does one ever find that out?

MR REYNOLDS: Your Honour, there are two ways. One is if there has been - - -

GUMMOW J: I understand if the government of the day brings in a Bill and it is defeated in the House of Lords or goes to a committee and it expires. I understand that.

MR REYNOLDS: That was my first example. The second one was if one could show that the legislature had considered in some detail a particular recommendation by the Law Reform Commission.

McHUGH J: There is a transference of meaning here. When they say "If Parliament has rejected", they usually mean if a Minister has rejected. It never gets to Parliament.

GUMMOW J: There is no distinction drawn in those propositions between the executive and the legislature and perhaps not surprisingly. It is a country with a different structure of government.

MR REYNOLDS: Yes. At any rate, we suggest that with perhaps a modification taking account of the way government proceeds in this country, those principles have some force in them and that they are matters to which your Honours might refer in this difficult area.

KIRBY J: Apparently we do not have a copy of this decision in Reynolds. It is unreported, is it?

MR REYNOLDS: No, and your Honours do not have a copy of any of those unreported decision on page 2. We have copies of them. We will provide them to my learned friends and we will provide them to the Registry. I do not, if I may say so, they contain important matters of principle but if my learned friend, Mr Spigelman, thinks they assist him, then he will be able to take your Honours to the passages but I am making them available, as I say, through the Registry.

BRENNAN CJ: There are two particularly that you have referred to: Reynolds and Cash.

MR REYNOLDS: And Hamzah.

KIRBY J: If you want us to look at them, unless we have them, it is not easy to do so.

MR REYNOLDS: Your Honour, I am not going to leave them floating in the outline. I will ensure that your Honours have copies of them.

McHUGH J: Judges have got to develop the law to cover cases that can fairly be regarded within the existing principles. I mean anybody who does not believe that judges make law does not live in the real world. How did the common law get from where it did in the 11th century to where it is in the last quarter of the 20th century?

MR REYNOLDS: Your Honour is raising broader matters than that which I am focusing on and the matter upon which your Honour has written judicially and extrajudicially, in fact where a number of the members of this Court have written extrajudicially. It is a very difficult area and I have tried to hone my submissions so that I am focusing on the precise question which your Honours are dealing with in this case, which is an issue where the area of common law and the defence in particular has been the focus of enormous energy and attention by the Law Reform Commissions and the legislatures. My submission does not dilate to the more difficult problems which obviously arise when one moves outside that situation. But rather than debate matters broadly jurisprudential with your Honour, I would like to confine my submission in the way that I have indicated and say that that is a reason why your Honours ought leave this matter to the legislature in this particular case.

BRENNAN CJ: It is not quite as simple though as that, is it? If you start off with Toogood v Spyring as your fundamental principle, it is necessary for this Court, if a party brings an issue to it for determination, to say whether or not the case falls within, to take that as an example, a general principle adumbrated in Toogood v Spyring. The Court has no choice about whether it says yes or no. It has to give an answer. It may have a choice as to which answer it gives and I can understand your submission on that basis. I do not understand it on the basis that the Court should decline to give an answer.

MR REYNOLDS: Your Honour, not decline to give an answer, but to take into account the Court's position so far as broader matters of policy are concerned. Can I refocus my submission in this way: if one looks to the position of the legislature in New South Wales, they have in the Defamation Act two defences: one, truth, plus a requirement of public interest; secondly, fair comment on a matter of public interest, the latter of which is a code. If your Honours were to develop this defence and endorse that pleaded by the ABC it would wipe out those two defences, and the reason is it is much easier to establish a discussion of public interest defence than it is to prove fair comment on facts truly stated which are matters of public interest or to prove truth with the requirement of public interest.

The point I am trying to make is this, the legislature of New South Wales monitors this area very closely. They have formed a balance of defences in this area. If your Honours were to develop a defence which would subsume those statutory defences then - if your Honours were considering a defence which would subsume those defences - even if your Honours found, as a matter of development of the common law, that it could be developed incrementally in this way, I respectfully submit that your Honours should refrain from entering the field even if your Honours think it accords with principle and even if your Honours think it accords with the common convenience and welfare of society because we are getting here, I respectfully submit, to the differential roles of this Court and the Parliaments.

BRENNAN CJ: Well, speaking for myself, I would understand your submission in this way: that if there is a statute which determines where a balance should be struck on a particular subject matter, and if there is a question of developing the common law, one of the factors which the Court is bound to take into account is the statutory balance and the common law cannot be developed in a way which offends the statutory balance, but I do not understand it as a basis of submission, that the Court should, as it were, abstain from performing its judicial function.

MR REYNOLDS: Your Honour, I press the submission. And in the area of statutory - the balance looked at, or adopted by the statute, I respectfully submit that that is not a matter into which the courts could and should be trespassing.

McHUGH J: It is not a question of trespassing at all. The court is charged with the duty of deciding cases between parties. Even when the court decides not to enter an area of law upon which there is no exact precedent, it makes law. That point does not ever seem to be understood. So, if the Court says, "We will not extend the law to this," there is then a rule of law that - the law of qualified privilege, for example, does not cover that particular area. Or, if we decide the other way, that it does. But the Court makes law either way.

Could I just add this to what the Chief Justice put to you? We sit here as the ultimate appellate Court of the nation, and it may be one thing to say you will not develop a common law doctrine when there is a uniformity of statutes around the country, but Victoria has the common law, so does South Australia and, to the best of my understanding, that is the position in Western Australia. So, the mere existence of section 16 in Tasmania, section 377 in Queensland, section 22 in New South Wales, do not seem to me to be, in this particular context, strong reasons for not developing the common law. If you had a uniformity of statutes, maybe.

MR REYNOLDS: Could I return to your Honour the Chief Justice's observation about balancing the statutory defences, if I may put it that way, in deciding whether or not to develop the common law? The problem, I respectfully submit, is that when the legislature has determined that balance, they will have looked - inevitably, I suggest - at a whole lot of policy questions which, first of all, your Honours never know about, second of all, I respectfully submit, which the Court is not in a position to even embark upon inquiring into.

The difficulty would be that if your Honour were to embark upon a process of weighing policy behind these various defences without that facility, and without that knowledge, that that would involve real difficulties in that your Honours' development of the common law principle might, at least in theory, thwart the balance as perceived by the legislature, and have the effect of thwarting what the legislature's intention was in a particular area.

I do not want your Honour to feel that I am suggesting the judicial development of the common law incrementally is a matter which is not permissible, that would be an absurd submission.

BRENNAN CJ: I think perhaps we are at cross-purposes here. The difficulties developing the common law in areas which require consideration of a variety of social factors or policies is something which is very familiar to the courts and they do not endeavour to formulate views which are simply exercises in social policy. Two things must be remembered. First, that a court has no agenda of its own. It is there to decide cases between parties and the issues for its determination are those which the parties plead. Secondly, that once the parties have brought an issue to the court, the court has no option but to determine the issues so brought. In doing so, it must apply the law as best it sees it. If that involves some development of the common law, so be it, but in determining that question and answering the issue which the parties bring, the court is bound to have regard to the difficulty of formulating policy questions or social questions. That is not the court's business.

MR REYNOLDS: Your Honour, I think we may be ad idem in that event.

BRENNAN CJ: I think we might be, yes.

MR REYNOLDS: I hope we are.

GUMMOW J: What do you say, Mr Reynolds, as to the acceptability, on your submissions, of the formulations of the qualified privilege by Justice McHugh, just start with that, in Stephens?

MR REYNOLDS: Your Honour, those defences as formulated have one feature which is conspicuously absent - - -

GUMMOW J: The first question is, how would this pleading here in this case measure against what is there put was the common law? That is the first question, is it not?

MR REYNOLDS: Your Honour, it is not even an attempt to plead those defences your Honour mentioned. There are at least half a dozen - - -

GUMMOW J: Is not that all you need to say?

MR REYNOLDS: That is all I need to say. There are about half a dozen elements, and the pleader had before him two finely-honed precedents - - -

GUMMOW J: I do not understand why you are trying to get some free advice for your opponent as how to redraw his pleading. All you have to say is, "This one is no good".

MR REYNOLDS: That is all I am saying, your Honour, and that at least three of your Honours rejected an even narrower pleading. Your Honours, I can see it is 4 o'clock. I could say something about page 140 of Theophanous, but on reflection that is a matter which my learned friend Mr Spigelman is going to deal with in his submissions, and it perhaps may be more appropriate if I leave that to him and respond to him in reply, if that is convenient to your Honours. Those are my submissions.

BRENNAN CJ: Thank you, Mr Reynolds. Mr Solicitor for the Commonwealth.

MR GRIFFITH: Your Honour, I will not make any application as to time at the moment. Justice Kirby referred yesterday to the issue of specificity in section 78B notices. I had Dau at my lips but it was an error and perhaps fortunately I did not mention it. Your Honour, what I had in mind was State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 4 NSWLR 549, particularly the judgment of your Honour at pages 557 to 559.

KIRBY J: All opinions are in a constant state of reconsideration.

MR GRIFFITH: Your Honours, we make our propositions in our summary in paragraph 1.3 of our submissions. So as to ensure the clarity of what follows may I take the Court to those propositions. On behalf of the Attorney our submission is that the practical result of the decisions in Theophanous and Stephens are correct but we seek to make out that the majority in those cases reached this result by what we will submit is an inappropriate constitutional method.

We then, in Chapter 2 of these submissions, make a submission with respect to the capacity of the common law defence to provide an appropriate defence in circumstances which we do not seek before the Court exhaustively to define inasmuch as the Attorney-General for the Commonwealth is an intervener and unless the Court wishes us to take it beyond the point of standing at the intersection saying the signpost points that way down the route of common law defence, we would by and large seek to rely upon the substance of our submissions in Chapter 2 and, of course, now with the restriction of the question reserved by the order of your Honour the Chief Justice during today, there is no occasion to consider our references to the two Codes States, but we there in summary indicate what we would identify as an appropriate course for the common law to develop to deal with issues which we say are appropriate to deal with the situation with respect to what we might put as the application of the law of defamation in respect of matters dealing with members of Parliament or, if one likes, broader public figures such as Justices of the Court and perhaps I would prefer not to put Solicitors-General in that category but leave that as an open category for identification.

Paragraph 3 then gets to the meat of our intervention in our submissions to the Court. We submit that the conclusion in Theophanous and Stephens that such a defence to a defamation act can arise directly under the Constitution itself is inconsistent with fundamental principles of Australian constitutional law. We deal with that in chapter 3 and we thereafter pick up briefly in chapter 4 some additional points which we make to those which are made separately in other filed submissions by the principal parties so arguing why Theophanous and Stephens should be overruled. Proposition 4 in our summary is that the implied constitutional freedom and political communication identified in Nationwide News and ACTV, we submit, relates only to political communications in respect of matters relevant to government at the Commonwealth level.

We do submit - and this is the original submission of the Attorney which no other party before the Court has embraced in their submissions - it is a submission of the Attorney that there is a separate but analogous constitutional limitation protecting political communications in relation to matters relevant to government at State level. We say each limitation affects the exercise of the legislative power of both the Commonwealth and the States. It is that, if I may put it, original submission that we would intend principally to enlarge upon in our oral submissions to the Court. It may well be that for those Justices who take the view that Nationwide News and ACTV sufficiently established the reach of the implied constitutional freedom, a political communication running to the State as well as the Commonwealth level as being established by Nationwide News and ACTV or, if one likes, confirmed by dicta in Theophanous and Stephens, that the alternative course which we submit is one which for those Justices would be otiose and unnecessary to rely upon - they are already there.

But perhaps if I could be specific, we would hope that this alternative basis would be one that, for example, would be something which might appeal to Justice McHugh who in Theophanous, of course, made it clear that sections 1, 7, 24, 31 and 40 were not in his view sufficient to establish that aspect.

With respect, we would agree with your Honour on that point. But we seek, in the various provisions to which Mr Graham, the Solicitor- General for Victoria, briefly took the Court in his closing submissions to the Court, to make out that when one looks at the Constitution as a whole and, in particular, the three categories of provisions which we refer to, there there is embraced, in our submission, ample basis for the implication to be derived directly from the Constitution itself. Or, we would go further, to pick up your Honour Justice Dawson's suggestion, it is not implied from the Constitution, it is specific.

DAWSON J: It does not matter whether you call it an implication or not, I suppose.

MR GRIFFITH: I think we know what we are talking about, your Honour. Your Honours, we do not seek, as was the case in Stephens, to rely upon a coextensive implication arising from the Constitutions of the individual States; not because, we would submit, no such implication might fairly be made from present State Constitutions, as was held in Theophanous, but because the essence of the requisite implication as to matters of political communication at State, as well as at the Commonwealth level, we say as is established by ACTV, would be sapped because of the facility which State Constitutions by and large may be abrogated, altered to abrogate the underpinnings of representative government, even in those States with some entrenching provisions.

So that, we do not, as part of our submissions, consider at all the issues of what might be regarded as explicit or implicit in the State Constitutions, because it is our submission that the implied constitutional freedom - we put it immunity - of the sort identified by this Court in Nationwide News and ACTV is so inherent in the Constitution that it applies by virtue of the Constitution of the Commonwealth, not by virtue of particular provisions of the State Constitutions - - -

DAWSON J: Is that not to reject the reasoning of a majority in ACTV or Nationwide?

MR GRIFFITH: We do not have to reject it, your Honour. We can say, well - - -

DAWSON J: But it is, is it not, because the mode of reasoning there was not to look directly at those provisions but to say you drew from those provisions an implication which was that of representative government. It was not the representative government which those provisions provided for because that is the minimum but something else and then to draw further implication from that. Whether they drew the same implication or not, that was the mode of reasoning of the majority and you must be rejecting it.

MR GRIFFITH: Yes, your Honour. We, of course, challenge that. So we are enthusiastically in agreement with your Honour that one gets to the result but we say the result is because of the particular provisions of the Constitution which we refer to, which have the effect of binding - - -

DAWSON J: But do not we have to have regard to the reasoning of the Justices in that case? If the majority of Justices reasoned in that way to get to their conclusion even though they did not agree in the actual implication that was finally made, are we not bound by their method of reasoning unless we reject it? Is that not to reject ACTV? No, you say, because it comes to the same result by another route.

MR GRIFFITH: Your Honour, we say one can accept the result for Commonwealth inasmuch as ACTV and Nationwide News went beyond that. Our submission is it should be rejected. If one could obtain the result which we argue for so far as the equivalent immunity, with respect to laws dealing with political communication may apply in the State, we say that arises separately for the reasons that we distil from the specific terms of the Constitution. I hope I indicate to your Honour that I am in agreement with the point your Honour makes to me.

DAWSON J: Yes, I think I understand. It is not an easy exercise.

MR GRIFFITH: Your Honour, it is an original one in that it has not been done. It is the submission of the Attorney that it is appropriate to do so to, in effect, your Honour, ensure that the constitutional freedom that is expressed with political communication does have a proper constitutional basis, but we do not seek, your Honour, to overturn Nationwide News and ACTV at all in as much as it established, so far as the Commonwealth is concerned, there was that limitation on common law power with respect to aspects of laws dealing with political communication.

McHUGH J: How does this political communication implication arise? Is it from structure or is it from text?

MR GRIFFITH: Your Honour, it is inherently from text but also structure, and we deal with - we have conveniently divided into three sorts of categories of parts of the Constitution which we rely on. They were referred to by Mr Graham. I would prefer to come to in my submissions in order. Your Honour, perhaps to target what I am doing, we would hope at the end of that analysis that your Honour would be prepared to go on from where you stopped in Theophanous and say, "Well, that was correct at that point dealing with what was there put in argument".

When one looks at these provisions, one can reach the point, as we suggest, for example - I hope it is a true suggestion to pick up - that Justice Gummow did in McGinty, to accept that there is a requirement for representative government in the States, albeit of a somewhat looser content than that which might be required in respect of the Commonwealth having regard to the situation of representative government at the time of Federation and having regard to the capacity, for example, of a bicameral system to abolish one House and become a unicameral system.

On that point, your Honour, we would say briefly one can read with two eyes, one can read with one eye, but one cannot read with no eyes. So our point is that every State - perhaps we can do the analogies we obviously make in our submissions - must have a Supreme Court. It might be possible to substitute one Supreme Court for another or have a Supreme Court of somewhat different qualities.

DAWSON J: I do not know that that is right, but we have had a decision of this Court that points in that direction. I was dissenting. But that is getting past the point that we are at. Do you tie your freedom to the fact that there are elections?

MR GRIFFITH: For the States?

DAWSON J: No, no, we are talking about the freedom of speech which arises from the Commonwealth Constitution. You tie it to elections?

MR GRIFFITH: Yes.

DAWSON J: And that is central to it?

MR GRIFFITH: It central to it, yes, your Honour, that there be representative government that has elections.

KIRBY J: Is that confined to only election times?

MR GRIFFITH: No, of course not, your Honour. We accept the broad view that the requirements of representative government are that there be a Parliament chosen by the people. I confine myself to the Commonwealth sphere at the moment. That must be an informed choice and that is a continuing process of capacity to be informed.

DAWSON J: You accept the reasoning processes of Justice McHugh and myself?

MR GRIFFITH: Yes, your Honour. But, your Honour, what we do say is that - and I will of course have to enlarge on that tomorrow morning - there is a process to be derived directly from the Constitution which applies a like principle, not exactly coterminous because there is not the equivalent of section 7 and 24 applying in the Commonwealth Constitution from which one could say that is directly applied to the States. But our submissions are, one gets to a similar result, namely, that there is a right of political communication in the States, and our submission is that it is not necessary either to make an argument to say there may be a connection with discussion of, say, casinos in the States which may have a connection with matters of Commonwealth political discussions, therefore, it is protected by the Commonwealth immunity, or to make an assumption as, for example, the then Chief Justice did in Theophanous, that one may assume that all matters of political discourse in Australia come within the ambit of what we put is the properly more narrow constitutional immunity with respect to laws dealing with political communication.

DAWSON J: Is there a great deal of difference between the actual result of approaching it via section 7 and 24 and related sections and tying it to elections and the result which the majority arrived at in ACTV?

MR GRIFFITH: There may not be, your Honour, but what we seek to do is to get away from the fact that saying the majority derived that in ACTV and, for example, in particular to pick up as adherence to what we say are the correct submissions and analysis those Judges who were not with the majority. We say, your Honour, the Constitution enables those Judges who did not accept the majority view in result to reach the same position so far as the properly identified immunity with respect to laws which impinge impermissibly on the right of political communication.

DAWSON J: One difference you say is that on the view that the freedom derives from those sections and not via some intermediate stage of representative government, on that view the freedom does not extend to invalidating libel laws, introducing - - -

MR GRIFFITH: No. Your Honour, we do not seek to sort of go up the arch, as it were, and then across to the States and down.

DAWSON J: But what it is on that view is not just something which puts a limit on the legislative power of the Commonwealth because if it is a positive requirement of the Constitution it must extend to the States as well.

MR GRIFFITH: Yes, your Honour.

DAWSON J: You accept that?

MR GRIFFITH: We accept it applies to the States. But, your Honour, we do refer to the plethora of provisions that were broken into three categories. Perhaps I could indicate to the Court that is where we intend to go tomorrow, to say the Constitution does it. And we have indicated why it is we do not seek to find it in the State Constitutions, because we say that does not sufficiently entrench what is specific in the Constitution; namely, that there is this limitation which was expressed in Nationwide News and ACTV, certainly in the result of ACTV to prevent Commonwealth laws impinging on this aspect of political communication, except where it might be justified on a proportionality approach.

Our basic submission is, if that is appropriate for the Commonwealth, as we accept it is, the Constitution also mandates it for the States. But, of course, that is not entirely mainstream for many of the protagonists before the Court pleading as parties or interveners, because they wish to go into the area of whether or not one takes that additional step of impinging on what we call the area of common law private rights. And, as our submissions make it clear, on the rearticulation which we make of the basis, it is nonetheless, in our submission, impermissible to take that additional step. Perhaps that is an appropriate time, your Honour.

BRENNAN CJ: We will adjourn until 10.15 tomorrow morning.

AT 4.16 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 5 MARCH 1997