Levy v The State of Victoria and Ors M42/1995 [1997] HCATrans 90 (5 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 WEDNESDAY, 5 MARCH 1997, AT 10.16 AM

(Continued from 4/3/97)

Copyright in the High Court of Australia

_________________

BRENNAN CJ: Yes, Mr Solicitor.

MR GRIFFITH: Your Honours, further to the Court's ruling which appears on page 31 of the transcript, a section 78B notice has been served by the Herald and Weekly Times in similar terms to the prospective notice of which the Court was previously aware. The reservation made on page 31 was:

2. That interveners not be at liberty, without further order of the Court, to raise the issue that the Court can or should exercise a power to overrule prospectively.

The notice given makes as its first assertion that the High Court does not have the power prospectively to overrule and, it seems, wishes to make the point that that has the effect that the Court is unable to ameliorate harsh and deferential effects of overruling. I have already indicated to the Court that the Commonwealth's view would be that whether or not the Court has power prospectively to overrule is irrelevant to the issue of overruling, but it would remain our submission, your Honours, that this matter is not one which can be raised at this stage of the hearing and would be a question for the Court to determine whether submissions upon those lines are relevant.

BRENNAN CJ: That was the understanding, Mr Solicitor.

MR GRIFFITH: It was, your Honour.

BRENNAN CJ: It is not being raised at this stage of the hearing. The notice has been given, so that if the Court in due time thinks that it is necessary to retain some further question, then the section 78B notice, I take it, opens the way for that to be done.

MR GRIFFITH: If your Honour pleases. It is just that I have only one occasion to address the Court and that is our response to it now it has been served. Your Honours, I was referring yesterday to our approach to the issue of ACTV and what it stands for. It is our submission that the implied constitutional limitation on legislation which may interfere with political communication identified in ACTV relates only to political communication in respect of matters relevant to government at Commonwealth level, however that is defined.

So that, your Honours, we would take issue in the comprehensive view that there is no subdivision as, for example, expressed by the then Chief Justice in ACTV 177 CLR at 142. It is our submission that there is a separate but analogous constitutional limitation derived from the Constitution protecting political communications in relation to matters relevant to government at the State level. That is the cases where we say there is no relevant association with the matter of Commonwealth representative government .

We also suggest with deference, but by reference to McGinty and by analogy to Kable, that a State is unable to abolish its Parliament. That is in paragraph 3.14 of our submissions. That much we understood seemed to be - - -

DAWSON J: Why do you say that? Kable was based upon the fact that - the majority's view of the thing was based upon the fact that federal judicial power was to be exercised by State courts. There is nothing like that here.

MR GRIFFITH: Your Honour, the answer is, we say so, by reason of our submissions in paragraph 3 point 10 to 26.

DAWSON J: Because it is mentioned in the Constitution.

MR GRIFFITH: Your Honour, we say that just as every State is required to have a Supreme Court meeting then it will stand. It is our submission every State is required to have - - -

DAWSON J: There are two views about that anyway. The reason for that is, as I have said, because it exercises Federal judicial power. State Parliament does not exercise Federal legislative power.

MR GRIFFITH: Yes. Your Honour, can I leave the reference to Kable on one side and say I rely upon the Constitution.

DAWSON J: How can you because it merely mentions it? I mean section 10, for instance, mentions the Constitution. It seems to presuppose that there will be two Houses of Parliament in each State. There is not.

MR GRIFFITH: Your Honour, our submission is every State must have one House.

DAWSON J: Section 10 seems to assume it will now have two.

MR GRIFFITH: Your Honour, we have Clayton v Heffron on authority of this Court to say that it may have less than two.

DAWSON J: Yes, precisely.

MR GRIFFITH: That does not mean less than one, your Honour.

DAWSON J: What I am putting to you is the mere fact that an institution is mentioned in the Constitution does not ensure its continued existence.

MR GRIFFITH: Your Honour, we wish to elevate our submissions to the point that we say the Constitution presupposes - - -

DAWSON J: Maybe it does. That does not mean it has to be there.

MR GRIFFITH: Your Honour, that might be the point where our submissions do not reach adherence with your Honour's views, but that is our submission.

DAWSON J: And you cannot rely on Kable in that respect.

MR GRIFFITH: Your Honour, it sounds like, with your Honour, I better not.

DAWSON J: No, no. You cannot for the reason I have given. The majority's conclusion was based upon the fact that federal judicial power was to be exercised by State Courts. Now State legislatures do not exercise federal legislative power.

MR GRIFFITH: Your Honours, can I indicate that we do notice that my learned friend, Mr Graham, did seem to concede in exchange with Justice Gummow that the States would require to have a Parliament. That concession, of course, does not bind the Court.

DAWSON J: One can assume that there will be State Parliaments, as undoubtedly the founding fathers did, but your next step is to say that there is representative government required by the State Constitutions if they are preserved in the manner in which the Constitution requires them to be preserved.

MR GRIFFITH: That is so, your Honour, yes.

DAWSON J: Yes, and from that you say there must be a freedom of speech in the States.

MR GRIFFITH: Analogous to the freedom, your Honour, we say arising as - - -

DAWSON J: Under the Commonwealth Constitution?

MR GRIFFITH: Yes, your Honour.

DAWSON J: Well, that is nonsense, Mr Solicitor, with respect, and, furthermore, it is falling into the very error that you are attempting to avoid in relation to the Commonwealth Constitution. You are positing a particular form of representative government, that which contains an element of freedom of speech, and saying that is the one that is required by the federal Constitution.

MR GRIFFITH: Your Honour, we would seek to satisfy that your Honour's first statement to me is not so and that your second statement, your Honour, is not the methodology we use to make our submission with respect to what we say, your Honour, is a position under the Constitution.

DAWSON J: Well, as I read it, it is. What you say is that representative government in the States is required by the federal Constitution.

MR GRIFFITH: Yes, your Honour, not in the same terms as sections 7 and 24, in a looser term.

DAWSON J: What is the looser term?

MR GRIFFITH: Your Honour, the sort referred to by Justice Gummow as we read his judgment in McGinty 70 ALJR at page 276.

DAWSON J: Well, what is it?

MR GRIFFITH: Your Honour, it is a requirement that there be a Parliament, that the Parliament be elected, your Honour, that that Parliament be chosen by the people - - -

KIRBY J: There is also the point about the election of casual vacancies. It is all integrated, or at least it is arguably integrated.

DAWSON J: But that is a different point, that because it is mentioned, therefore, it must be. The point I am putting to you is that - or to put it this way: under section 106 the Constitutions are continued but may be changed in accordance with their terms.

MR GRIFFITH: Your Honours, we say that there is a limited capacity to change, and in particular we say - - -

DAWSON J: Why?

MR GRIFFITH: Your Honour, because of the collection of provisions that we refer to from paragraph 3 - - -

DAWSON J: Because they refer to a Parliament.

MR GRIFFITH: They go further, your Honour, they presuppose, in our submission, a continued existence.

DAWSON J: Section 106 does not presuppose but provides for change.

MR GRIFFITH: Your Honour, I am not just relying on section 106, I am relying upon - - -

DAWSON J: But I am, in my argument.

MR GRIFFITH: Yes. Your Honours, it may be that, your Honour, I should go through with some particularity those various provisions - - -

DAWSON J: I make it clear I do not accept what you say.

MR GRIFFITH: Your Honour, may I accept that as a situation but none the less make our submissions that we say this is something quite explicit in the Constitution. It is not something where we say, your Honour, we can - - -

DAWSON J: Representative government imposed on the States is explicit in the Constitution, is that what you say?

MR GRIFFITH: Yes, your Honour, it is.

DAWSON J: All right.

MR GRIFFITH: So it sounds like this exchange, at least, has identified our submission, your Honour; also it has identified your Honour's response. If I could seek to - have an aspiration at least to dissuade your Honour from the view that we are falling into what your Honour identifies as the impermissible. Your Honour, if it was properly characterised in the way that your Honour did, then it would be impermissible, we would concede that, because that is our point in arguing that Theophanous should be revisited by this Court. So, your Honours, we do rely entirely on what we say is a constitutional implication derived directly from what we have broken up as the three sets of constitutional provisions.

Turning to what the Court did decide in ACTV, your Honours, when one looks at the language used by various of their Honours, it is not all that clear that the Court did turn its mind to whether it was considering whether there was a limitation on Commonwealth power arising principally from sections 7 and 24 or whether there was a freedom. Of course, in ACTV the result would have been the same, but it is clear enough that the majority judgments use the language of both "limitation" and "freedom". So, for example, at 138 to 141 that the then Chief Justice referred to "freedom", Justice Brennan at 149, as your Honour then was, "limitation". Justices Deane and Toohey at 168 seems to be "freedom". Justice Gaudron at 214 to 215 "freedom". Your Honour Justice McHugh at page 232 referred to "right", but - - -

GAUDRON J: What do you understand to be the difference between a limitation on legislative power and a freedom?

MR GRIFFITH: What we would say, your Honour, is that ACTV was directed to an issue of whether or not there was power within the Commonwealth Government to enact legislation which cut across the entitlement of Parliament to be directly chosen by the people being an informed choice. The issue before the Court was to whether Commonwealth legislation should be struck down and, of course, your Honour Justice Brennan held that it should not, and your Honour Justice Dawson, applying, as we see, a test of proportionality, held that it should not. But we would say that your Honour Justice Dawson did accept, in his judgment, that there was a limitation on power with respect to these aspects.

I was indicating, your Honour Justice McHugh, we would read your judgment on page 232 in ACTV, having regarding to what your Honour said clearly in Theophanous as indicating matters of limitation rather than freedom. But perhaps it is not very helpful to the Court for - - -

GAUDRON J: Are you going to tell me what you understand the difference to be?

MR GRIFFITH: Really why we make the difference, your Honour, is to say that it does not establish personal rights - we say is the difference; that one cannot then, your Honours, construct a - - -

GAUDRON J: Well, you say a freedom does constitute personal rights, do you?

MR GRIFFITH: Does, or does not?

GAUDRON J: Well, I am asking you, so that I can understand your submissions.

MR GRIFFITH: Your Honour, it might be easier to talk - the substantive point of view of immunity, your Honour. We say it is beyond Commonwealth power to pass a law which does interfere with this capacity for informed choice mandated by sections 7 and 24. Your Honours, the law in that case was a law which restricted the process of media dissemination of information during elections. We do not narrow, your Honour, this principle to merely election time; we say it is a continuing process, accepting the matter which even your Honour Justice McHugh in ACTV regarded as open, that it was not necessarily limited to elections, although, for the purpose of your Honour's decision, I think you so regarded it.

So, your Honour, we say that it is a matter whereby Commonwealth legislation might be struck down as being beyond power but it does not embrace the concept that there are personal rights of the sort which were recognised in Theophanous so as to prevent the common law, as understood, applying to imposed liability for defamation.

GAUDRON J: But again, in that context you are talking about a right as a right to free speech, are you?

MR GRIFFITH: Your Honour, we are talking about a limitation on Commonwealth - - -

GAUDRON J: I do not understand the discourse. Unless you tell me what you mean by the difference between the a freedom, immunity and limitation on legislative power, your submissions are meaningless to me.

MR GRIFFITH: I do not want to lose your Honour at this stage.

GAUDRON J: Well, I am lost.

MR GRIFFITH: May I enlarge on the submissions and then re- engage your Honour on the basis that we would say the totality of our submissions make it clear, the point which your Honour - - -

GAUDRON J: I have read them, and they did not.

MR GRIFFITH: You have not heard the oral ones, your Honour.

GAUDRON J: No; very well.

DAWSON J: But surely you mean, Mr Solicitor, freedom of speech in the sense in which you speak about it is the absence of any law which precludes people from speaking.

MR GRIFFITH: Yes, your Honour, I surely do mean that - - -

DAWSON J: It is not a right in the sense that it is positively given, it is just that no-one has stopped you from doing it.

MR GRIFFITH: Yes, your Honour. I am not sure whether - - -

DAWSON J: In that sense it is in the common law, because the common law had nothing to say about it.

MR GRIFFITH: Your Honour, I cannot inquire of Justice Gaudron whether, if that is what I mean, that is sufficient to satisfy her, but that is what I mean. What we seek to mean is that a law such as struck down in ACTV on the basis the majority of this Court regarded it as not satisfying the relevant test of proportionality to be justified, is a law beyond Commonwealth power. In respect of Theophanous, we say one trespasses into the impermissible area of constructing a free-standing right which has the effect of overriding the common law to establish what is there expressed as a, perhaps, "freedom" but an entitlement to defame those who, in a certain situation in a political context, when otherwise the common law would regard such statements as actionable defamation.

GAUDRON J: I do not know, I think you put the discourse of rights on its head in putting it that way. Your common law right in that context is a right to your reputation, that is the right.

MR GRIFFITH: Your Honour, we say there is no implication for the Constitution that takes that away.

GAUDRON J: That, I suppose, is the question to be decided.

MR GRIFFITH: Yes, your Honour. So we are in agreement.

GAUDRON J: Yes.

MR GRIFFITH: That is the question to be decided, your Honour.

GAUDRON J: But the common law right is a right to reputation.

MR GRIFFITH: Yes, and it is argued, your Honour - - -

GAUDRON J: Which is protected to the extent that the law of defamation allows.

MR GRIFFITH: Common law and statutory.

GAUDRON J: Yes. So when we are talking about rights, we are not talking about the rights of free speech, are we?

MR GRIFFITH: No, your Honour, we are talking about whether or not this constitutional provision takes away what your Honour has identified as the common law and statutory right to reputation, and our submission is, your Honour, that not only it does not, but it cannot. I hope we have identified the point of discourse, your Honour, and I hope my oral enlargement on our written submissions take your Honour that extra point that the written submissions have not. I will not inquire at the end of my submissions, your Honour, but that is our intention.

Your Honour, we say that the process in ACTV was to assess whether or not the impugned law exceeded Commonwealth legislative power. So that that really went to the issue of whether or not there was a limitation on Commonwealth power. So the issue before the Court then was not one which compelled the Court to decide whether or not there was a general freedom, if I may call it that, a guarantee. On that question, the Court in Theophanous, in our submission, was divided.

We would submit that that is where the departure from constitutional practice occurred, although we do accept that when one looks at ACTV, in our submission, where one sees languages in some of the judgments indicating that the particular aspect of discourse as to political matters ran beyond the Commonwealth sphere and what was appropriately related to all discourse. In other words, that passage we identify of the then Chief Justice at page 142, in our submission, went beyond what was justified by sections 7 and 24 of the Constitution and, to that point, our submission is that those parts of the judgments in ACTV which made that extension were in error. But that, of course, did not affect the result in the decision which was, of course, a majority decision that the particular law was invalid as contravening sections 7 and 24 as we read the judgment.

TOOHEY J: At least in relation to Commonwealth elections, Justice McHugh spoke of "a constitutional right to convey and receive opinions, arguments and information". That appears at page 232.

MR GRIFFITH: I referred to that a few moments ago, your Honour, and indicated that we would read that, after reading his Honour's judgment in Theophanous, as indicating more the limitation on legislative power to interfere, but it is not for me to put words in his Honour's mouth, I suppose.

TOOHEY J: No. You mean you find that not in ACTV itself but in his Honour's subsequent judgment?

MR GRIFFITH: Yes. Your Honour, it is very difficult, when the Judges who said it are here, to postulate what they meant when one reads what they said, but I referred this morning to what he said.

TOOHEY J: Well, no one seems to have had any inhibitions so far.

MR GRIFFITH: Your Honour, I do not intend - but, however one construes Justice McHugh at that passage, it is clear from his judgment, we would say, in Theophanous and Stephens that he accepted the - - -

McHUGH J: I think in ACTV, because I tied myself to the words "directly chosen", my judgment takes the view that, because section 24 says that "The House of Representatives shall be directly chosen by the people", then that gave the people rights to choose and that there were associated with those rights rights of communication, association and so on. But I think it is difficult to fit me in with the general approach because there is a different approach. It seems to me, Mr Solicitor, that the anterior question is whether or not sections such as 7, 24, section 128, if you like, relevantly make any statement about representative government. In other words, do they infer representative government in some general sense or is the use of the term "representative government" merely a shorthand description of what is actually enacted in those particular sections?

If you assume that they do make a statement about representative government, then surely the question must be in a case like this to be this: to give effect to the implication of representative government in the Constitution, is it also a necessary implication of the Constitution that persons making statements about political matters relevant to Australian electors should be free of liability for publication of defamatory statements and, if so, upon what conditions, if any? That seems to me the way that you look at it from a traditional approach to the interpretation of the Constitution. If you take the narrow view I do instead of saying "give effect to the implication of representative government", you say, "to give effect to the people's choice", is it also a necessary implication of the Constitution, et cetera, et cetera?

MR GRIFFITH: Your Honour, we would agree with that formulation. Perhaps to test it another way, your Honour, were the federal Parliament to pass a law saying that, for example, truth is no defence in respect to a political statement directed at a serving MP, it may well be, your Honour, such a law as that would be regarded as impinging upon that which is entrenched and saved by sections 7 and 24, with that aspect of presupposition of a democratic process of representative government which we say is part of sections 7 and 24. Parliament "directly chosen by the people" requires both a Parliament and a choice by electors being an informed choice, so that if on that inquiry a law which provided that truth was no defence to an action for defamation by a politician, it may well be, your Honours, that that would come squarely within the ACTV principle.

McHUGH J: Perhaps you can help me on this issue because this is the difficulty I have always had about this area and that is that sections 7, 24 and so on may give effect to representative government, but when you say the Constitution implies representative government, are you saying anything more than what is contained in various sections of the Constitution? I have always anchored myself to the text rather than anchored myself to the abstraction which you draw as a summary or a conclusion from various sections in the - - -

MR GRIFFITH: Your Honour, we would submit that is a very safe approach because when one looks at sections 7 and 24 there is a requirement that there be two Houses of Parliament "directly chosen by the people". There are other provisions dealing with the election process but, in our submission, your Honours, that is sufficient to establish by the direct text of the Constitution that there be Parliaments elected by a democratic process that McKinlay's Case holds has some limitations as to what is required without the equivalence of one vote, one value, but something getting close to that.

DAWSON J: But it is not only a safe approach, Mr Solicitor, it is the only approach. The form of representative government for which the Constitution provides is that for which it provides. There are hundreds of forms of representative government. The one for which the Constitution provides is that for which it provides.

MR GRIFFITH: Well, your Honour, as often is the case, I entirely agree with your Honour, yes.

McHUGH J: That is my point. Do you get anything more out of saying the Constitution provides for representative government than you get from saying the Constitution provides for certain matters in sections 7, 24, 1, 128 and, if you do not, then why do you not stick to the text instead of - - -

MR GRIFFITH: Or if you do not have to, your Honour, why not stick to the text? We would agree with that. If that answers it, stop there. Now, your Honour Justice McHugh - I continue the exchange - Theophanous stopped at those parts of the text, we say particularly 7 and 24 because 131 and 40 were not much help for this purpose, and said that says nothing about the States. Well, your Honour, we would entirely agree, in our submission, that that is so. What we seek to go on in paragraph 3.01 and following of our submissions is to say you keep on going through the Constitution and you do see something specific there which gives rise to, we say, express requirements or those structural results which arise as a matter of necessary consequence. We go to necessary,so far as structural is concerned, to get to the point that in our submission that States must have at least one house of Parliament, in our submission - we accept the point made about Clayton v Heffron, your Honour, but if I may take issue again with your Honour, our submission is, as I made the point in passing yesterday, that it is one thing to say Clayton v Heffron establishes that one may not withstand - - -

McHUGH J: Yes, I know. That was a dictum of my judgment in Theophanous and I must say, having thought about the problem leading up to Kable, it may be I just might change my views.

MR GRIFFITH: Well, it makes me easier to make the submission without being deferential, your Honour, but I would say the point, your Honour, you can read with two eyes, you can read with one eye, but you cannot read with none and that is our point and so - well, your Honour, perhaps I not refer to that aspect again.

Your Honours, we do accept and we refer to in our submissions the fact that there may be a relationship between aspects of Commonwealth political concern and matters which are discussed at a lower level. Where we take issue is the reasoning relied upon in ACTV that the assertion that the affairs at different levels of government are necessarily indivisible. We give the citations to the points where we take exception in footnote 63 on page 19 of our submission. We say we reach what we say must exist as purely matters of non-Commonwealth political concern at the State level, a much the same result by the different route which at the moment does not find attraction with, I think, perhaps two of your Honours.

DAWSON J: Because what you are doing is doing the very thing you deny in relation to the Commonwealth Constitution. You are positing a system of representative government which carries with it some form of freedom of speech. I can understand if you go to the State Constitutions and say, "Well, look you've got elections and that requires a certain degree of freedom of speech and so on", but you are not doing that. You are setting up a system of representative government of some sort which you do not find anywhere in any textual provisions and saying that applies to the States via the Commonwealth Constitution.

MR GRIFFITH: I will indicate to your Honour why we do not go to State Constitutions. But, your Honour, we are not setting it up. We say the Constitution sets it up. We are discerning it.

DAWSON J: The Constitution sets up a system of representative government for the States. Where do you get that from?

MR GRIFFITH: Your Honour, I can only go back to - - -

DAWSON J: Because it mentions Parliaments.

MR GRIFFITH: It presupposes that there must be continuing Parliament. It is not a mention, your Honour. Our submission is the continuation of a State Parliament, at least with the form of franchise.

DAWSON J: It mentions the Kingdom of Great Britain and Ireland. That no longer exists. It mentions an interstate commission. That no longer exists.

MR GRIFFITH: Your Honour, section 15 will not work, for example. It is not a State Parliament.

DAWSON J: Maybe it will not. But sometimes when you get factual situations, you have to read the Constitution in the light of those. But one thing you do have in the Constitution is section 106 which says that the States may change their Constitution in whatever manner they wish so long as it is consistent with the means of change provided.

MR GRIFFITH: Your Honour, we say that there is a confining aspect, that there is a requirement - - -

DAWSON J: I understand what you are saying.

KIRBY J: I suppose in addition to the textual elements, good or bad, you can rely on the fact that they are State Parliaments in a federal polity which provides for a free people setting up their form of government, and intended by very practical founders to work together in an integrated way and not in a disharmonious way, so that not only is there the text, there is also the structure of the Constitution.

MR GRIFFITH: Yes, your Honour. We do admit structure and really this is embraced when we say the Constitution presupposes the continuation of a State Parliament.

McHUGH J: Section 92 did not presuppose they were a harmonious group.

KIRBY J: That was an express derogation.

MR GRIFFITH: It did not know what the High Court would do with it for 80 years either, your Honour. Certainly the people of Australia did come together to provide that there should be a federation comprising the colonial governments transmogrified into States with a system of representative government which has evolved and that the Commonwealth should have a system of representative government specifically provided for. We say that that bare minimum is sufficient for our purposes to establish the requirement that States do have elected Parliaments with minimal electoral stands. We do not say it establishes things such as the franchise of women even if that, if I may have a Chapter III analogy again, is something which evolves as, for example, the aspects of jury trial might evolve.

Your Honours, we submit that is sufficient, for our purposes, to, in effect, establish at the level of State political communication which we mark off from that which may be covered from the section 7 and section 24 aspects as identified by the majority in ACTV sufficient to establish an analogous provision so far as the powers of the Commonwealth - - -

DAWSON J: Can I just ask you this, Mr Solicitor? What would happen if a State did abolish its Parliament in accordance with its Constitution and set up a committee of some sort to run the State?

MR GRIFFITH: Well, your Honour, if I return to private practice I would be delighted to have the brief for those opposing it.

DAWSON J: What would be done? What could be done about it?

MR GRIFFITH: Your Honour, you would seek declarations in this Court that such a law was beyond power - such amendment.

DAWSON J: And what would happen as a result of those declarations?

MR GRIFFITH: The Parliament would remain established, your Honour.

DAWSON J: But it would not. It has gone. It has been dissolved. Not there.

MR GRIFFITH: I would come here first, your Honour.

DAWSON J: What if you did not get here first? You see, there are some things which even a Constitution cannot do. If, for instance, there is a dissolution of Parliament - a double dissolution, which is not in accordance with the provisions of the Constitution, the Constitution cannot resurrect the Parliament. You just have to accept some situations. We have to accept that there is no longer a United Kingdom of Great Britain and Ireland, and adapt ourselves in the interpretation of the Constitution as best we can.

MR GRIFFITH: Well, some people might disagree that there is no United Kingdom, your Honour.

DAWSON J: It is only Northern Ireland.

BRENNAN CJ: If you be right in saying that the Constitution mandates the maintenance of the Parliaments of the States, for my part, I cannot think that this Court would be so devoid of its capacities to frame a remedy as might not give some effect to that Constitution imperative.

MR GRIFFITH: Your Honour, that would be my submission.

BRENNAN CJ: Well, now, taking it bit by bit, is this your submission: that the Constitution casts upon the Parliaments of the States certain responsibilities and gives them certain powers?

MR GRIFFITH: Yes, your Honour.

BRENNAN CJ: That if those powers are conferred by the Constitution, then the Constitution must impliedly mandate the existence of the Parliaments to exercise them.

MR GRIFFITH: Yes, your Honour.

BRENNAN CJ: The Parliaments are, by their nature, representative and, therefore, you find in those provisions of the Constitution the notion of representative government. I am not saying that the argument is right, but are those the steps?

MR GRIFFITH: Yes, your Honour. I hope I had not obscured those steps in the way I was presenting the argument up to date. That is precisely - - -

BRENNAN CJ: If those are the steps, the basis of your implication of representative government is no more than the existence of a Parliament.

MR GRIFFITH: Yes, your Honour.

BRENNAN CJ: However chosen?

MR GRIFFITH: Your Honour, chosen but, as State Parliaments were chosen in 1900, by a system of representative democracy. There were electors.

BRENNAN CJ: So, in other words, you read into the term, "Parliament" the notion of a Parliament of those who are elected?

MR GRIFFITH: We do not read into it, your Honour, that is what a Parliament is, in our submission.

BRENNAN CJ: Well, there have been other forms of Parliament in the early days of the English Constitution.

MR GRIFFITH: We are talking about Australia at 1900, your Honour.

BRENNAN CJ: That is what I wanted to understand from you.

MR GRIFFITH: Yes, your Honour, we go round the colonies. There is various franchises and Upper Houses; there were multiple votes. There was not emancipation and votes for women; there were property qualification, but in the various ways - - -

McHUGH J: Appointed Upper Houses.

MR GRIFFITH: Your Honour, Upper Houses do not matter for the purpose of our submissions. Clayton v Heffron says they can be abolished. Our submissions are about - - -

DAWSON J: If you were right, section 10 would seem to suggest they cannot.

MR GRIFFITH: Your Honour, I do not seek to challenge Clayton v Heffron.

DAWSON J: Yes, but we are looking at the underlying theory.

MR GRIFFITH: The underlying theory is every State must have a Parliament. We are not saying that every State must have two, or every State that had two at Federation has continued to have two.

DAWSON J: The Parliament that the Constitution is talking about is a Parliament of both Houses. Section 10.

MR GRIFFITH: For the purpose of the Commonwealth Constitution that is so, your Honour.

DAWSON J: Yes, that is what we are referring to.

MR GRIFFITH: I am referring to the Constitution that is referenced to State Parliaments, your Honour.

DAWSON J: I thought you were deriving the requirement that there be Parliament of the particular kind from the Commonwealth Constitution in the States.

MR GRIFFITH: Yes, your Honour, but in its reference to Parliaments of the States, not in its reference to the Commonwealth Parliament.

DAWSON J: What I am putting to you, it refers to a Parliament comprising two Houses, and assumes that. You say it does not matter.

MR GRIFFITH: Your Honour, for the purpose of my submission, it is not necessary for me to ask the Court to overrule Clayton v Heffron, and I see no need to do it.

DAWSON J: No, but what I am suggesting to you is if what you are putting is right, then Clayton v Heffron is wrong.

MR GRIFFITH: That could be the case, your Honour, but I do not submit that it is because my submission is that every State must have a Parliament, and whether it has one or two Houses, it still answers the description of the Parliament, and it is quite consistent with Clayton v Heffron.

KIRBY J: You do not have to put that Clayton v Heffron was wrong, but it would be consistent with your submission that it is wrong. It may be that that is so but a lot of water has passed under the bridge since then.

MR GRIFFITH: Your Honour, it is perfectly consistent with my submission that is right so I do not want to take issue with it. As long as a State has a Parliament, whether it is one or two Houses - - -

KIRBY J: The constitutional text seems to posit two Houses. The problem is that you are seeking to go from mention of a Parliament to an implication of a particular kind of Parliament. That step is not so difficult because a Parliament, you might say, has to be representative. But, then you have to build an inference upon that as to what happens in respect of free discussion, and then you run into the problem of necessity that Mr Reynolds was telling us about yesterday.

MR GRIFFITH: Your Honour, I do not have to go very far; really only as far as we would suggest Justice Gummow did in McGinty, to say that a State has to have a Parliament. There might only be minimal standards so far as electoral qualifications et cetera is concerned.

KIRBY J: That is not the step that, speaking for myself, I have difficulty with. As the texts talks of the Parliament, it is - - -

MR GRIFFITH: Your Honour, once you are there, in our submission, our submissions are there. That is all we need is a Parliament, and then we say the Parliament means a body which is elected by reference to at least the minimal standards which applied at the time of Federation, which have now revolved since, and may they have a higher level of constitutional underpinning, as, for example, in a Chapter III case.

DAWSON J: Why could not the State Parliament have an electoral college, for instance?

MR GRIFFITH: Your Honour, we do not say that necessarily it could not; that is not an issue. It has to - - -

DAWSON J: And that would affect the type of freedom of speech that might be implied.

MR GRIFFITH: Your Honour, I do not wish to get into a discussion of the American system and electoral colleges and whether that cuts across a freedom of speech; but one does not have to give complete content to, "Well, what is the Parliament? Does it have to have direct election or an indirect election through electoral college?" In our submission, it is - - -

DAWSON J: What it does point to is the fact that the degree of freedom of speech which is given must by reference to the form of the State Parliament, not by reference to the Commonwealth Constitution.

MR GRIFFITH: Your Honours, may I test our submissions another way. We submit, for the reasons that we have stated before the Court today in our written submissions, that sections 7 and 24 only support the requisite limitation on power so far as communication for Commonwealth political purpose is concerned and what is ancillary to that. Whether one says a casino is an example of a State matter which may be Commonwealth is by the by. One answer to that suggestion might say, "The Senate Committee was abandoned because they discovered that it was not within their power to do anything useful."

There must be particular State issues, for example, whether or not there should be buildings running up to the Opera House. Perhaps if that can be just assumed a matter wholly a State concern, that may be a political matter in the State. Our submission is, quite flatly, that that cannot be regarded as within the ambit of what any restriction might emerge on laws dealing with political communications so far as what is derived from sections 7 and 24. We have made our position clear on that.

We would submit that in so much as there may be a desire for persons to engage in political communications concerning a solely State issue, that it would be beyond the power of the State to say, for example, in a State law, "Freedom of political communication is hereby abrogated except in so far as it is necessary to preserve representative government at the Commonwealth level."

BRENNAN CJ: Why do you, if you are going back to the constitutional terms which mandate the existence of a Parliament, not restrict the implied freedom, if you wish to call it that, in this way? That the Constitution mandates a Parliament in which there are certain functions reposed by the Commonwealth Constitution and the conferring upon those Parliaments the powers to exercise those functions; therefore, those Parliaments cannot impair the performance of those functions; therefore, those Parliament cannot pass laws which affect that freedom which is necessary to perform those functions only.

MR GRIFFITH: Being those dealing with representative - - -

BRENNAN CJ: Those dealing with the functions cast upon the State Parliament by the federal Constitution, which are, for example, section 10 and section 15. It is a very different freedom from that which might be implied from 7 and 24.

MR GRIFFITH: Yes, your Honour.

KIRBY J: It may stamp the character on the Parliament, though. The fact that it has these functions that cannot be impaired may mean that you get a Parliament of a particular kind that has other benefits and which you cannot derogate from simply because it has to be the kind of representative Parliament in our Constitution that is apt to interrelate with the federal Parliament which is of a particular character.

MR GRIFFITH: Your Honour, the point we are seeking to make here is there must a reciprocity here in that, in our submission, it would be postulating, in effect, an absurd position that arising from sections 7 and 24 there is this limitation on power to impinge at all upon aspects of freedom of political communication in respect of matters of Commonwealth political concern and, at the State level, it is put against us that there is no such limitation. In our submission, it is inherently unlikely and we would say, in its terms, an incoherent principle, to express the requisite requirement, as it has been in ACTV dealing with aspects of freedom of communication at the Commonwealth level whilst, at the same time, being unable to discern in the Constitution any protection whatsoever to aspects of political communication that do not have the requisite characterisation as being relevant to a matter of representative government at the Commonwealth level.

DAWSON J: No, I do not understand you to have answered the Chief Justice's question, Mr Solicitor.

MR GRIFFITH: Your Honour, our submission is that, so far as the States are concerned, the aspect of protection of freedom of political communication is a matter which arises, we submit, under the Constitution so far as it applies to the States.

BRENNAN CJ: I understand that.

MR GRIFFITH: Yes. So that, your Honour, when one puts those two aspects together, the 7 and 24, so far as the Commonwealth is concerned, and the other parts of the Constitution which we refer to so far as the State positions are concerned, in our submission, there is a constitutional unity then which provides the requisite level of protection of the right of political communication.

BRENNAN CJ: Those are a lot of words, Mr Solicitor. When you say you put them together, can I take you back to my question. If you say that it is necessary to postulate the existence of a Parliament by force of the Constitution, you must be saying that because the Constitution postulates that those Parliaments will have certain functions and will, therefore, have the powers to perform. The necessary implication is the existence of a Parliament with certain prescribed and limited functions with the powers to perform those functions, and that is all that is implied by the Constitution. Why does the freedom of speech extend beyond what is necessary for the performance of those functions?

MR GRIFFITH: Your Honour, perhaps that is to approach it from the point of view of the Parliament rather than the point of view of those who wish to engage in political communication.

BRENNAN CJ: Of course it is. It is approaching it from the point of view of what is necessarily implied in the text of the Constitution.

MR GRIFFITH: Your Honour, it may be that one gets to the same position, whether one comes from that direction or the other direction.

BRENNAN CJ: However it may be, I still would like to know why it is that the approach that I have put to you is not the only permissible approach under the Constitution.

MR GRIFFITH: If one adopts that approach - - -

BRENNAN CJ: If you wish to go to the wider approach which Justice Kirby put to you, namely, "Well, we've got a Parliament. Once we've got a Parliament, then that's all we need to have", then so be it. I can understand that approach. It may have some difficulties in it of the kind that you are seeking to avoid in relation to the Commonwealth sphere, but I can understand it. Which are you putting?

MR GRIFFITH: On that postulation your Honour puts, we say one gets to the position that there would be a limitation on State power, as I would understand it, akin to that which we say is a limitation on Commonwealth power arising from sections 7 and 24.

BRENNAN CJ: No. But the subject matter of the freedom of State Parliaments is limited to freedom to discuss those matters which by the Constitution those Parliaments are to perform, namely, there is a freedom to discuss, for example, the franchise, there is a freedom to discuss the election of casual vacancies.

MR GRIFFITH: I am sorry, your Honour, I had not focused on your Honour's limitation to the Constitution. Our submission is that, when one has reference to the Parliaments of the States and to the continuation of States in the Constitution, one does not find completely within the four corners of the Constitution all the relevant constitutional terms which apply because the States are continued by sections 106 and 107. One in effect took the colonies transmogrified into States as one found them. I am sorry, I did not see the point of your Honour's question. I was looking beyond the hedge, as it were. But we would say that one is not isolating the meaning of States and Parliament to what one finds in the four corners of the Constitution. The structure of the Constitution is to pick up and establish the States, formerly colonies, and to continue their Constitutions. It is to those entities to which these references are made. Your Honour, those entities include States with operating Parliaments, some bicameral, some not, some with appointed Houses. I hope I got myself out of the pit by seeing the point of your Honour's - - -

BRENNAN CJ: You draw on history to give the meaning to the terms.

MR GRIFFITH: Well, we draw on section 106, your Honour.

BRENNAN CJ: Yes.

MR GRIFFITH: Yes. Not just history, the structure of the Constitution.

BRENNAN CJ: Section 106, applicable to the circumstances to which it applies.

MR GRIFFITH: So, we would put this in the "necessary" - it is necessary character arising out of the structure of the Constitution. But we are happy to accept the "necessary" test.

TOOHEY J: But there has been a suggestion in some of the submissions that if one looks at structure one is departing from the text. I just have some difficulty with this.

MR GRIFFITH: I would not suggest that, your Honour.

TOOHEY J: No, I am not suggesting that it is part of your submission, Mr Solicitor. But, for my own part, I see no departure from the text involved - at least necessarily involved - in looking at the structure of the Constitution, which derives from the text itself. But it is this juxtaposition that is involved in some of the arguments that, if one looks at the structure, is inevitably necessarily a departure from the text.

MR GRIFFITH: Yes. Well, we would deny that, your Honour. There must be a coherency in approach. But, your Honour, perhaps the example that we have now identified in this exchange is a good example; that we refer to the text of the Constitution, but it is a Constitution that refers to the States, meaning those States brought into being by the Constitution, and those Constitutions are continued by section 106. That is what the words of the Constitution mean.

DAWSON J: Until changed.

MR GRIFFITH: Until changed, your Honour. But we have made our point about there is, we say, a limitation on change which, to use the example that Justice McHugh postulates, would prevent a State altering its Constitution to abolish a single Parliament - if it has got a sole Parliament - becoming a single-person dictatorship for life.

McHUGH J: What about the governor of a State. "Governor" is mentioned in, for example, section 15. Could a State abolish its governor?

MR GRIFFITH: Well, your Honour, they were entrenched by the Australia Act, so there is bit of trouble about that now.

McHUGH J: I appreciate that.

GUMMOW J: One would have to look at section 110.

MR GRIFFITH: Yes, thank you, your Honour. Well, having done that it might give a reference point, even on that impermissible constitutional position.

McHUGH J: I think Western Australia did not have a governor for between about - sometime in the 1930s and 1946.

KIRBY J: They may not have filled the office. They would have a governor.

MR GRIFFITH: Yes. Well, your Honour, one part of the agreement giving rise to the request Acts for the Australian Act was the position of governors be entrenched. That does not say exactly what they do, but every State has to have one, as I understand. But, of course, that could be altered by the mechanism for altering in the various ways in which it could.

Your Honours, we do seek to underpin our submissions by making the point which I raised by referring to the possibility that State law abrogating political freedom, political communication, whatever it is, other than that which is mandated at the Commonwealth level. We submit that your Honours, in effect, if there is such a capacity accepted by the Court that really would remove the constitutional underpinnings for the implication at the Commonwealth level. I mean, what sort of democracy are we? We are a Federation of States and Commonwealth if it could be accepted that there are these high-minded requirements, so far as the Commonwealth body politic is concerned, and nothing at all at the State level. That might be put as a rhetorical question, your Honours, but we would say that - - -

KIRBY J: Is that how you take the second step? That is to say to pile the inference on implication upon the States. Once you have got to the State Parliament, being in the Constitution, you say the Capital Television Case says it applies to the federal, therefore, it applies to the State and nobody comes here to challenge, or only very reluctantly to challenge, the first two cases and, therefore, the one applies by logic to the other. Is that it? Is that the necessity you argue for?

MR GRIFFITH: Your Honour, what I am anxious to ask - I was really thinking of the Pont du Gard under the shower this morning, because your Honour the Chief Justice referred to the keystone that this Court is in the Constitution; but if I could pick up the keystone but not referring to the Court, what we say, your Honour, is that at the first level of the Pont du Gard there is arches, which are constitutional arches. Our submission is to make it quite clear that that is where the Constitution stops. One does not then build on another arch and another arch. We would say, if I could use that rhetorical flourish, that that is the error we see in Theophanous, in our submission, is that having got the first arch up, then another one to scale a bit smaller is put on top of it. The point is, where do you stop? How many arches can you support?

Our submission is that the keystone that goes in from the Constitution only supports one arch. You can put another arch and another arch along at the same level but you cannot go upwards with constitutional supports. So that when we say that it is presupposed in the Constitution, in our submission, that there are these basal levels of mandated requirement for representative democracy in the States, we do that at the first level, we do not go any higher. So if Justice Dawson is correct in identifying our submissions as being at the second level, then, your Honour, that firstly is not intended to be our submissions and if you read it as that you must reject them. We make it clear we stay down in the Constitution, so that when I answer your Honour Justice Kirby we are staying in the Constitution. We say that it is not just inherent in the Constitution, it is to the point of being explicit that the Constitution presupposes this.

McHUGH J: Does your argument lead to the conclusion that the States cannot have gerrymandered elections if they would be contrary to representative democracy?

MR GRIFFITH: Your Honour, this is the issue of McGinty, your Honour. What McGinty made clear, your Honour, is that putting it at the level of one vote, one value was not something that was mandated, and that is totally accepted, your Honour, that decisions of the Court decided that. But when one reads McGinty, your Honour, one gets ample support for the proposition that there are basic levels required at the State level. As Justice Gummow put it, that there must be a Parliament and we regard his judgment indicating elections.

That is sufficient for the purposes of our submissions, to say that McGinty implicitly recognised the aspect that there are to be elections. One could have a statewide electorate or not, one could have a gerrymandered - it seems on the authority of McGinty, your Honours, one could not discern a requirement that there be equal dispassionately drawn boundaries of equal population electors. Your Honours, we do rely on McGinty as indicating, in our submissions, your Honours, that there are basic requirements in the States. McGinty went too far because that was a one vote, one value just as McKinlay went too far. But McKinlay did establish the basic proposition that one could not have impossible inequality, so far as the Commonwealth is concerned, and, of course, it has led through McKellar's Case to the requirements of redistributions to see that that has happened.

There are basic requirements. In the States we admit they are a lot looser, but that is sufficient for the purposes of our submission. Your Honours, I think that has made abundantly clear to the Court the manner in which we put our submission as to this separate implication which we say is drawn from the Constitution but not as part of the implication at the Commonwealth level. Now, your Honours, we have often enough now referred to paragraph 3.10 and following. It was not my intention to take the Court in detail - - -

BRENNAN CJ: Mr Solicitor, can I just interrupt you for a moment to take you back to your arches again and I am sorry to be so slow about this, but if that approach is right, what it comes to is that implications should not be drawn more widely than are essential to give effect to the text and structure of the Constitution. Is that right?

MR GRIFFITH: Your Honour, when you say implications, on this point we say it is not so much implication, but it is really explicit.

BRENNAN CJ: However you wish to put it, whether by way of epexegetical understanding of a term or whether it by way of an implication, that it should not be so broad as to go beyond what the text of the Constitution or its structure necessarily requires. If you take that approach then, when you come to the States, why is it that you say that there is to be some implication of any freedom of speech at all?

MR GRIFFITH: Your Honour, because we say that there is a requirement there be elected Parliaments.

BRENNAN CJ: Of course.

MR GRIFFITH: And that is sufficient for our purposes.

BRENNAN CJ: Why is it sufficient for your purposes if you do not wish to build another arch above it? You want to build the arch of freedom of speech above the elected Parliament because you say it is necessary.

MR GRIFFITH: I only want to build an arch next to the one about Commonwealth, to say this is the State one next door, your Honour.

BRENNAN CJ: Forget the Commonwealth. We are talking only now about States.

MR GRIFFITH: Yes, that is my next door arch, not the one above, your Honour.

BRENNAN CJ: Well, looking at the next door arch, the States arch, you have got a requirement for a Parliament which is in some way representative. Why do you then go to the next stage and say, "And there must be freedom of speech about political matters in the States"?

MR GRIFFITH: Because, your Honour, we say when one says there must be a Parliament which is required to be representative, that requires - - -

DAWSON J: Then you are departing from any text at all. That is the point.

MR GRIFFITH: No, your Honour, we - - -

DAWSON J: In the Commonwealth Constitution one looks at the provision which says that the Parliament "shall be directly chosen by the people" and it is in the exegesis of those sections that one finds in one form or another some freedom of speech, but you are not doing that with the States. You are referring to no text at all. There is no exegesis. That is the point that the Chief Justice was making, I think.

MR GRIFFITH: Your Honour, we say the meaning of "elected" means informed choice. We say that is not exegesis. That is just the dictionary meaning.

BRENNAN CJ: No, that is not quite right, is it? To say that you have got an elected Parliament does not mean that there is an informed choice. It means that there is an elected Parliament, perhaps by an ill-informed choice.

MR GRIFFITH: Your Honour, we say that is inconsistent with the constitutional mandate.

BRENNAN CJ: I understand you to say that. I am seeking for the reason why.

MR GRIFFITH: Because Australia is a democratic place, your Honour, including the States.

BRENNAN CJ: I can understand that, but I would then ask the question, is that an extrinsic value?

MR GRIFFITH: We say it is not, your Honour. That is the definition of the term.

BRENNAN CJ: I understand the process that you mean.

MR GRIFFITH: Yes, we do not seek to go any further or to pick up "directly chosen" from section 24.

DAWSON J: Then you are doing exactly what you say you cannot do in relation to the Commonwealth Constitution, but we understand what you are saying.

MR GRIFFITH: Your Honour, perhaps your last phrase is enough to let me continue then but, your Honour, that is our submission and it is one not made by the Attorney in the interests of the Commonwealth or the Government, as it were, but it is a submission made in the public interest, your Honour, on the point of view of saying it is accepted that that is the Australian constitutional system.

BRENNAN CJ: We are not concerned with the motivation of your submission, only its correctness.

MR GRIFFITH: No, your Honour. Your Honour is right to admonish me but, your Honours, we then make these three analyses of groups of provisions which we refer to. On the first category which we deal with in paragraph 3.13 to 3.15, your Honours, what we say is that these provisions which determine the composition of the Commonwealth Parliament were predicated on the existence of, and the exercise of, power by State Parliaments. So representative government at the Commonwealth level cannot operate in the absence of State Parliaments.

Some of the provisions, of course, are transitional, sections 15 and 9 are not and, your Honours, when one goes to Chapter V of the Constitution, which is headed "The States", we see, in our submission, the Constitution presupposes that each State has and continues to have a Parliament, sections 107, 108, 111. So there are many provisions, those ones we refer to, which are predicated upon each State having a Parliament. They were all incapable of operating, or transitional ones for the period they were operating, unless a State has an institution which answers the description.

Some of these provisions do also affect representative government of the Commonwealth and, in our submission, your Honours, when one uses this term "Parliament", it takes its meaning primarily from the characteristics of the colonial Parliaments immediately before Federation. It is a matter of historical fact that in each colony there was a system which answered the description of being a representative government in place. So what is required, in our submission, under the Constitution, is that each State have a body of representatives elected periodically in free elections exercising legislative power. That is what "Parliament" means, in our submission.

KIRBY J: Where can we find something, is it footnoted, about the character of colonial Parliaments and their history so that we understand what was meant when the Constitution talks of a "State Parliament"?

MR GRIFFITH: Your Honour has perhaps identified another footnote we should add, if we could have leave to do it? That is history, your Honour, so we should be able to do it.

KIRBY J: Pretty self-evident, I suppose, but I do not know what their Parliaments were like, except New South Wales.

MR GRIFFITH: Your Honour, there are interesting provisions. For example, Mr Selway told us on one occasion that the South Australian Parliament was, and I am not sure whether still is, a Court of Appeal in South Australia.

McHUGH J: I am not sure it was the Parliament. They have a special court, which was a Court of Appeal.

MR GRIFFITH: But there are certainly legislatures, your Honour, yes. So we will do that, Justice Kirby. The second textual basis which we refer to at paragraph 3.15 on page 23 is where we say that the Constitution is predicated upon there being electors or elections for State Parliaments. Of course, some provisions pick up franchises and electoral laws which apply to State Parliaments and apply them to Commonwealth elections, sections 10, 31, 30, 8, they are mainly transitional. Section 25 may have a continuing operation. Section 41 is another provision referred to by Justice McHugh in Theophanous but, in our submission, those sections do establish the position that the Constitution, we say, is predicated upon there being electors and elections in State Parliaments.

The third textual basis - and perhaps this is something which is going to engage the Court in other matters - is that we refer to the issue of the people. There are references to the people in the preamble and covering clause 3. We make two points here. Firstly, State Constitutions do not stand alone. By section 106 they are drawn into the constitutional framework. They owe their legal force to the Australian Constitution. If that framework rests on the sovereignty of the people, so do, we would submit, the State Constitutions. So the decision to unite in one indissoluble Commonwealth was made by the people of each colony. So those people retain an interest in the nature of the Constitution.

GUMMOW J: It was not all the people.

McHUGH J: Yes, I was just going to say that. Women did not have much to say, neither did Aborigines.

GUMMOW J: Nor was there compulsory vote, so let us forget - - -

MR GRIFFITH: Your Honours, we would accept that in 1900 that was so. This may be a matter of constitutional evolution as, for example, the issue of those who serve on juries or it may be frozen at 1900 but, for the purposes of our submissions, it does not make any difference. The people as at 1900 were sufficient, those who had then had the vote. We say that that word after the Australia Acts has a wider meaning which has not yet been exhausted by consideration of this Court. We do not need to go into that issue of possible wider meaning or whether indeed there is a constitutional underpinning now separate from that of the Constitution being a statute of the United Kingdom. For our purposes it is sufficient to say regarding the Constitution as a statute in the United Kingdom, there is still this aspect of the interests of the people of the colonies even if one limits that to those who were enfranchised.

We submit that those people, at least, who were enfranchised, they chose representative government. They chose representative government for the Commonwealth. At the same time they were choosing to transmogrify the colonies into States. In our submission, they did not. If one thing is abundantly clear, choose a hybrid system whereas at the higher level there was a mandated requirement of government being a representative character but at the other there may not. In our submission, it is just unthinkable to suppose that the structure of the Constitution contemplated a requirement of democratic government at the Commonwealth level, and no continuing - although evolving - requirement of democratic government at the State level. So, to put it at its extreme situation, it could not be said that the abolition of Parliament and the establishment of a lifetime dictatorship was democratic government. Our submission is that it must follow that the Constitution, by its terms, would prohibit.

McHUGH J: Mr Solicitor, we all bandy around the term "the structure" of the Constitution, but would you give us, please, some definition. What are you really talking about?

MR GRIFFITH: Your Honour, it is sufficient for my terms to say that the Constitution established a Federation. It reconstituted the former colonies into the States. It established the States by continuing their Constitutions as affected by the operation of the Constitution. It established, your Honour, a system of, we say, representative democracy with all the provisions of the Constitution including Chapter III so far as the Commonwealth was concerned. It established the High Court to be the court of appeal in all matters including constitutional matters, not just matters dealing with the relationship between the Commonwealth and the States but also all governments and all the people of Australia.

Your Honour, that structure of government, for the purposes of our submissions, represents the establishment of a system of representative government both at the Commonwealth and State level. I think that is sufficient for my purposes. It may well be, your Honour, in other more detailed matters one would have to refer to structure particularly to establish an argument of necessity but for our purposes that is all we need, in our submission. So we do refer to this third textual basis of saying that that adds weight to our submissions; that the references to Parliaments and State electoral laws must be understood as requiring by the terms of the Commonwealth Constitution, if one likes by express terms that each State have a Parliament which possesses the basic characteristics of being a representative legislature.

Your Honours, when one looks at these matters - I have used the term, "presupposed" - we say that here, bearing in mind the difference between an implication and a mere, to use the terms of the then Chief Justice in ACTV at page 135, where his Honour referred to:

unexpressed assumption upon which the framers proceeded in drafting the Constitution.

We submit that what we refer to in this regard is just that, it is an unexpressed assumption on which the framers proceeded in drafting the Constitution.

KIRBY J: Is it still requiring the test of necessity?

MR GRIFFITH: We say it is there, so the answer is yes, your Honour. It is there so, of necessity, it must be. Yes, we would accept the test of necessity, your Honour.

DAWSON J: What do you do with the unexpressed assumption, Mr Solicitor?

MR GRIFFITH: What we say is, these provisions we refer to presuppose the existence of Parliaments in the sense that they are incapable of operating unless Parliaments exist.

DAWSON J: That is an unexpressed assumption?

MR GRIFFITH: Your Honour, we would say it goes further, it is expressed.

DAWSON J: Yes, because there are lots of unexpressed assumptions lying behind the Constitution which do not form constitutional provisions. Racial inequality is one.

MR GRIFFITH: Racial in quality?

DAWSON J: Inequality is an unexpressed assumption - - -

MR GRIFFITH: Did your Honour say "quality" or "inequality"?

DAWSON J: Inequality.

MR GRIFFITH: Yes, we would accept that, your Honour.

DAWSON J: But it does not find its way into the Constitution.

MR GRIFFITH: What we say here is these aspects at the level one says the Constitution presupposes it; that it is there. So, the existence of a Parliament is presupposed in that the existence of Parliaments at the State level is a logical and practical necessity for the preservation of those parts of the constitutional structure. We put it at that level. We say that that is a requirement that is not satisfied by just having something called a Parliament, just as Chapter III does not permit one to merely have something call it a court if it is not a court. It must be a court properly so-called. That is something which comes with the normal concept of a Parliament and, as we say, it makes no difference to our submissions whether one regards that concept at 1900 or as it is now. It necessarily involved free elections with some form of adult franchise. We refer to the fact that we say section 15, which, of course was amended in 1997, is predicated upon this continuing situation.

We have already made the point which I could pick up by referring your Honours to page 25 at paragraph 3.18, where we say that our submissions are, in effect, supported by McGinty, rather than undermined by McGinty, but may I let those submissions stand for themselves. Your Honour the Chief Justice I think I have used my 90 minutes.

BRENNAN CJ: I think you have probably not quite used your time, but do you wish to have an extension of time?

MR GRIFFITH: May I apply, your Honour, because I have almost finished this aspect? I have not said anything about the overruling point, or the question of qualified privilege, so if I may.

BRENNAN CJ: Yes, you may proceed, Mr Solicitor.

MR GRIFFITH: Thank you, your Honour.

BRENNAN CJ: The Court extends your time. Do you need to have a terminus ad quem specified, or are you within striking distance?

MR GRIFFITH: Your Honour, we stay by our original estimate that we would be no more than two hours, but I will do my best to be less. So, that would be before 12, on any view.

BRENNAN CJ: Do not hurry. You have certainly got that time, if you wish to have it.

MR GRIFFITH: Thank you, your Honour. Your Honours, may we indicate that we agree with what your Honour the Chief Justice said in Theophanous at 153, 154, that the Constitution is not concerned with the private rights of citizens inter se. We explain that in some detail in paragraphs 3.27 to 3.36 of our submissions. We say we start with the text of the Constitution. It says nothing about private rights - concerned only with establishing institutions of government and defining their powers. So, we agree that any implication to be drawn must be one which inheres in the text or the structure.

We accept, as we have indicated, the view of necessity so far as one seeks to derive implications from the structure. Now, we submit that, therefore, constitutional implications can only affect the way in which the constitutional provisions operate on subject matter, so that an implication in the Constitution only arises for consideration when a provision of the Constitution is invoked, and it is a question of what application a constitutional provision has. We say that arises in Australia where the validity of some legislative or executive action is challenged, or, I suppose, where there is a Chapter III that arises.

Our submission is an implication cannot take the Constitution off into new subject areas which are not mentioned or contemplated in the text. So, we would accept the approach of your Honour the Chief Justice in McGinty ALR pages 295 and 296 and, in particular, the passage in Victoria v Commonwealth, which your Honour sets out at page 296. Also, we would accept what your Honour Justice McHugh said at pages 344 to 347, and Justice Gummow at page 391. We say to hold otherwise would go beyond implication from the text, and begin to build constitutional rules from personal conceptions about how the Australian polity should operate.

So, we do seek here, in our submissions, to begin from what the text expressly deals with, look at permissible principles of construction, and we reach the conclusion that there is no implication, we submit, which would take the Constitution into the sphere of private common law rights. Now, the second way we put our - - -

GUMMOW J: When you say "into the sphere of", do you mean by abrogating them, or qualifying them?

MR GRIFFITH: Yes, your Honour.

GUMMOW J: What is the relevant common law right?

MR GRIFFITH: Your Honour, there is a right to protect one's reputation. I was going to refer to that next, your Honour, the common law aspect, if I may do that?

GUMMOW J: Yes.

MR GRIFFITH: We say that there is a relationship between the Constitution and the common law. We say, your Honours, that it must be taken as a starting point that the balance historically struck by the common law of defamation should be assumed to be within the range allowed by the Constitution. We would accept what your Honour the Chief Justice said in Theophanous at pages 154 and 155.

Of course, we do not say that the common law is superior to the Constitution. Rather, the Constitution is born of the common law and has always operated in its context. So, when one seeks to give content to some of the spare words of the Constitution, one of the first sources one looks for are the rights and freedoms traditionally recognised by the common law. If I may refer to what your Honour Justice Gaudron said in ACTV at page 217, your Honour said:

As the implied freedom is one that depends substantially on the general law, its limits are also marked out by the general law. Thus, in general terms, the laws which have developed to regulate speech, including the laws with respect to defamation.....will indicate the kind of regulation that is consistent with the freedom of political discourse.

We accept that approach, your Honours. We say that whilst the Constitution is predicated on representative government, it is also predicated on the continuation of the common law until that is reformed by statute. Of course, the common law may evolve by decisions of the courts, particularly this Court. So, unless the constitutional text must be read - - -

GUMMOW J: Can I just ask you another question. If one begins then with this common law right to protect one's reputation, vindicated, amongst other ways, through an action in tort, how does one fit that in with what is said to be an assumption of freedom of speech?

MR GRIFFITH: Your Honours, what we say is that - - -

GUMMOW J: Another common law idea.

MR GRIFFITH: We are not talking about the assumption of freedom of speech. We say that the Constitution mandates that there be political discourse. Say, for example, we postulated that a Commonwealth law which said that it would be no defence to prove truth in what otherwise would be a defamatory statement against a politician might be challenged as being contrary to that statutory provision, but what we say is whatever one derives from the Constitution, the Court should, unless it is clearly mandated by the contrary, regard the Constitution as speaking consistently with what is the common law so far as protection of reputations is concerned.

McHUGH J: But in 1900 there were a number of statutes which said that truth alone was not a defence to a publication of defamatory matter. Truth and public benefit in the Code States and in New South Wales. That was in 1900.

MR GRIFFITH: Your Honour, I am doing my submission to the common law, not with whether particular statutes might be challenged. So that from the point of view of the common law principle, what we say is one approaches the question of saying what is explicit in the Constitution, including necessary implication from its structure or whatever, on the basis that one would expect it to be consistent with the common law. If one found in a particular case it was not, then the Constitution of course would prevail. But we say the appropriate approach is not to look avidly for inconsistency but to read them together.

In other words, to take it that unless the Constitution is regarded by this Court of positively mandating to the contrary, the ordinary common law of defamation should be regarded as representing the appropriate - and I hesitate to say "balance" - political and legal parameters for the carrying on of political discourse in this country after 1900. Your Honour, I do intend to say something about the qualified privilege common law aspect, so perhaps I could deal with your Honour's reference to the defamation law there.

McHUGH J: Yes.

MR GRIFFITH: But this is dealing at this point with, we say, a line of approach and we would submit that the Court should adopt the approach, unless it is confident that the Constitution mandates to the contrary, that the Constitution does not in effect abrogate what rights one had to protection of reputation under the common law. So we say that the common law should be regarded as one of the factors making out the boundary of political communication which ACTV recognised.

GUMMOW J: But assume for a minute that this publication that is complained of is complained of by a resident of one State who is agitated by what has been published by a resident of another State. That would be an action to which 75(iv) applied.

MR GRIFFITH: Yes.

GUMMOW J: Where does one get the common law to provide any content to that? Only through a Commonwealth statute that picks up some State law; is that what happens?

MR GRIFFITH: It might depend where the case is being heard, your Honour, one would apply the conflict rules. If it was issued in this Court, it would be remitted and the consequence of that would be determined by your Honours' judgments in Mewett, but we would submit, your Honour, it must be a law which applies and one would suppose, your Honour, if the case was defamation only in one State against a resident in another State, it would be the law of the State where the defamation occurred. If it occurred in both States - - -

GUMMOW J: I just wondered to what extent one could speak in those cases of federal jurisdiction of the common law without presupposing some Commonwealth statute which picks up some body of law, that is all.

MR GRIFFITH: Perhaps the common law of Australia is enough for my purposes of this submission, your Honour, but what we say is that in Theophanous one has a result that does not depend on those sort of issues, but merely say, wherever it is in Australia, it will not be actionable if it meets these criteria.

GUMMOW J: But it is in this case, because this is a case of federal jurisdiction.

MR GRIFFITH: Yes, your Honour.

GUMMOW J: Theophanous may not have been. This case is.

MR GRIFFITH: With respect, your Honour, that would not make any difference to the point that we seek to make which, namely, is the Court should not actually seek out something as being implicit in the Constitution which does, in effect, reverse the long-standing pre-existing common law position, apart from any statutory interference which I will leave on one side for the moment. Our submission does not depend, your Honours, on it being a State or federal jurisdiction. It is just a point of constitutional construction. We say that, by and large, the Constitution is entirely compatible with the common law.

Your Honours, on the question of reopening and overruling, we have got little to add to our submissions made in part 4 which, of course, are matters made in extenso by the other parties but, in our submission, it is a particular combination of factors which leads to a conclusion that the decision should be reconsidered, but it really comes back to the arch. Our submission is that once it is demonstrated one is up the second level of the arch, then that is a fundamental matter of constitutional development. We say it is, almost by common agreement, if so correctly identified a matter of erroneous constitutional principle. Your Honours, perhaps it is fortunate if that is now demonstrated for the matter to be available to be rectified now rather than it developing, as one knows not where, until it reaches a critical mass of being unsupportable, and perhaps the arches are getting bigger as you go up, if I can use that analogy.

So that we have an explosive readjustment required of Engineers, Boilermakers or Cole v Whitfield proportions, but that is really making just the basic point. We say that if we demonstrate that the arch is on an arch, that is sufficient and that it is perhaps not very helpful to use the usual analysis of headings which all the parties, including us, have sought to do so. We are dealing with the matter of Engineers, Boilermakers- type fundamental importance and we submit then that once the Court is of that position, then the inhibition in reality should not be regarded as existing.

Your Honours, turning to the question of our alternative route to what, in our written submissions, support the same result by non- constitutional means, the same result as Theophanous. Of course, Theophanous itself is supported by the answer to question 3 and obtained a common law result. So that if the courts had adopted the approach, "Well, this can be determined by the common law route", and answered question 3 and said question 2 "unnecessary to answer", there would be no exception to the result in Theophanous.

Your Honours, perhaps our written submissions and also our submission in part 5 were a little bit ambitious in that it was not until the exchange between Mr Reynolds and Justice McHugh yesterday on arcane matters of practice of defamation in New South Wales that made me realise that it is dangerous territory for someone south of the Murray to engage in, for the Commonwealth nonetheless to have assayed what are more general submissions which really seek to make a point, namely, that is that the common law is easily capable of developing, as we say in part 2 of our submissions, to represent an appropriate - perhaps I can permissibly use here - balance from the point of view the undoubted freedom of the individual to protect the individual's reputation, and the appropriateness of the recognition by this Court that there should be an atmosphere appropriate for the ordinary discourse of political debate.

Now, we make short submissions as to the capacity of the common law to modify in paragraphs 2.2 to 2.4 of our submissions on pages 5 and 6, but really what we seek to do there is to say that this is of the essence of the Court's function to revisit as it has from time to time - Mr Reynolds noted the fact that law reform bodies also visit this area quite often - to perhaps recalibrate, if one can use the balance analogy, the balance on the balance between the interests of political debate and the interests between the protection of the reputation of the individual in this area.

McHUGH J: But you are definitely urging us to make law, are you not?

MR GRIFFITH: We say, your Honours, that one view Theophanous has already decided this, but the question is it must be properly pleaded because, as Stephens indicates, in the absence of proper pleading the Stephens defence was unsuccessful.

BRENNAN CJ: Mr Solicitor, does this area of your submission fall squarely within your right to intervene under section 78A?

MR GRIFFITH: Your Honour, I do not wish to engage in a long argument but basically what we say, your Honour, is that the issue is whether Theophanous should be overruled. One says, well, no, because it can be supported on this ground. We have indicated our views on the other ground. But, your Honours, in effect, there is a related issue here, the constitutional issue as to whether or not there is a constitutional protection. In answering that we say no, and one of the parts of the answer, your Honours, is to say that this is an aspect which may comfortably and should comfortably be dealt with by the common law, but your Honour makes the point which makes me feel that I should - and that was why I was intending to be very short on it, your Honour, just as I indicated when I opened my submissions yesterday, stand at the intersection and say, "Go this way and this way alone and not that way".

Theophanous went both ways and what we seek to do, your Honours, very helpfully is to say why one way seemed to be and we say is a dead end, the Court should retreat, and why the other way either is open after Theophanous or could be reworked by the Court. Now, we must confess that our written submissions in paragraph 2 in our short submissions in chapter 5 really perhaps are a bit optimistic to say it can all be done in one hit and, if nothing else, Mr Reynolds' point subject to being answered by Mr Spigelman, would seem to indicate that if the Court is encouraged to develop the law it is probably better to do it on an incremental basis on proper pleading and that is an area which the Commonwealth does not desire to become involved, but merely to indicate that there is a capacity of the Court to engage at common law in this balancing process, to work on the aspects of adopting the views as to what is in the public interests, to engage in a balance on the issue of where malice may be articulated. But really, your Honour, it does seem that that is a matter to be done on proper pleading and we would accept that that is not the function of the Commonwealth Attorney to get involved in.

BRENNAN CJ: On the constitutional issue is this the proposition, that the freedom of speech, however one defines it, which might be implied from sections 7, 24 and other sections of the Constitution in the Commonwealth area and from the sections that you referred to in relation to the State Parliaments, cannot be regarded as requiring any implication of freedom that would hold the common law to be inconsistent with it, that is the common law of defamation be inconsistent with it, and that if Parliaments choose to make some alteration of the common law of defamation, then the question arises whether the alteration so made is inconsistent with the constitutionally predicated freedom?

MR GRIFFITH: Your Honour, I am sorry, it has taken me 113 minutes to say something that your Honour has captured in a sentence. The answer is yes.

BRENNAN CJ: Then, the question simply is, in relation to the Codes particularly, although perhaps that does not arise in this case, but is it a question for this Court to consider the validity of laws relating to defamation in the light of the constitutionally dictated freedom of speech?

MR GRIFFITH: We would say no, your Honour. The Codes are excluded by the reworking of the question. We did make submissions, your Honour, that the Codes probably loosened up rather than restricted but there is no need for the Court to look at that.

BRENNAN CJ: I understand that. But I am thinking of the question which Justice Gaudron asked at the beginning of these proceedings, namely, if the State Parliament were to say that no person shall make any adverse comment upon a federal, or for that matter, a State politician. Would that survive?

MR GRIFFITH: Your Honour, our submission would be that it would not.

BRENNAN CJ: Then if the law of defamation were to be so tightened up by a State Parliament as to make it virtually impossible to say anything with impunity about a politician, even though it was true and in the public benefit that it should be said, would that survive?

MR GRIFFITH: No, your Honour.

BRENNAN CJ: Then it must be that there is some implication to be drawn from the Constitution which affects private rights.

MR GRIFFITH: I should wait till your Honour has finished all your question before I agree. Your Honour, what we say is that there is a limit on legislative power and that an example of that, your Honour, was ACTV. We say another we say another example would be a Commonwealth defamation law applying to corporations. And we would say, your Honour, another example could be a State law applying generally to the law of defamation in that State, but it would be a limit on State power.

DAWSON J: It is simply that the law infringes the Constitution.

MR GRIFFITH: Yes, your Honour. So we would characterise such a law as your Honour postulated, the same as the law struck down in ACTV. It might be another day one might argue the issue of proportionality, but the arguments there, of course, found favour with your Honour but not with the majority, but that is a separate issue going to whether you infringe, but once you infringe - - -

DAWSON J: But if you view it just as being a constitutional provision requiring a degree of freedom of speech, there is no question of proportionality. It is not a balancing act. It is a matter of interpreting what the Constitution says.

MR GRIFFITH: Once you go beyond that, your Honour, but in the ACTV Case - your Honour, we do indicate, and we deal with that in our submissions dealing with proportionality, that there can be a balancing process in the aspects of what may be permitted or not, and we refer to the European Court decision - - -

DAWSON J: What I am putting to you is that where you do have a freedom laid down, such as in section 92, then proportionality is required to read down the absolute - or a proportionality exercise is available to read down the absolute freedom to something which is workable.

MR GRIFFITH: Yes.

DAWSON J: But it is not so if you simply regard the freedom as being dictated expressly by sections 7, 24 and related sections.

MR GRIFFITH: Your Honour, we would regard it as being dictated in the way it was regarded in ACTV, that one has to then justify it by a proportionality test. We accept Leask.

DAWSON J: I do not see that. There is no proportionality involved. It is a question of interpreting how far the sections go.

MR GRIFFITH: I am not too sure whether you do not get to the same point, your Honour, because in determining that - - -

DAWSON J: Proportionality involves a balancing exercise. There is no balancing in interpreting the extent of textual provisions.

McHUGH J: You get into a problem because you introduce the notion of freedom of speech. It seems to me it is an invitation to error in interpreting the Constitution to even refer to freedom of speech because it misleads you as to what the real issues - - -

MR GRIFFITH: We do not desire to be misled, your Honour, we are dealing with - - -

McHUGH J: No, I am not being critical of you, Mr Solicitor, it is just that we all fall into this habit. It is easy to talk about freedom of speech. But the real issue is whether to give effect to sections 7 and 24. It is a necessary implication of the Constitution that a person making a statement about political matters should be free of liability for defamation in damages in the present context. In another context, it might be whether to give effect to sections 7 and 24. It is a necessary implication of the Constitution that a person should be able to say something about somebody or communicate with somebody, but that seems to me to be the real issue in constitutional terms. If you answer it favourably to the right of communication then you will say freedom of speech prevails but that is to describe a consequence, not a criterion.

MR GRIFFITH: There is another aspect, your Honour. We bring it back to limitation on governmental power to pass laws.

McHUGH J: Yes.

MR GRIFFITH: It is not a freedom that floats. It is that you cannot pass a law to do something which is beyond power. If it is impinging into this area, in our submission, there is a test of proportionality, and that was the reason which we read your Honour the Chief Justice's judgment in ACTV - to hold the law was valid. Evidence was put before the Court to justify that view. Minds might differ, and the majority did take a contrary view, but we would say that that is the aspect of the Court deciding whether or not - - -

DAWSON J: You want the best of both worlds, do you not?

MR GRIFFITH: No, your Honour, in a way we do not because we are seeking to bring down a limitation here on Commonwealth power which is something that, at least myself arguing for the Commonwealth, very rarely does. So it is not seeking the best of both worlds, your Honour.

DAWSON J: No, I mean seeking to introduce proportionality as at the same time espousing merely textual exercise.

MR GRIFFITH: Your Honour, what we say is it is the exercise that his Honour the Chief Justice engaged in ACTV and our submission is appropriate in dealing with the aspect of this issue at the Commonwealth level. I am not sure whether that is saying yes or no to your Honour.

Your Honours, it would seem then it is inappropriate for us to engage in what should be the orders made in each of these matters. Our submission is directed to the principle. I will not say overarching principle because, of course, we are dealing with the bottom arch. If the Court pleases.

BRENNAN CJ: Thank you, Mr Solicitor. Mr Solicitor for Queensland.

MR KEANE: May it please the Court, we are concerned with the argument which invokes the support of the joint judgment in the judgment of Justice Deane in Theophanous and Stephens, the argument being that the Constitution denies effect to common law or statute and so alters the liabilities of subjects and the correlative rights of other subjects where the common law or statute impedes political communications of various kinds even though it is not said that the rule of common law or statute interferes with the free choice by the people of their representatives or that the law detracts from the functioning of those chosen by the people.

Your Honours, it is our submission that that argument is founded on approach to constitutional interpretation whereby, as was said by Justices Deane and Toohey in ACTV, that it is an approach to constitutional interpretation whereby the implication is drawn from an underlying doctrine of the Constitution. That is the language of their Honours in ACTV 177 CLR 168 point 3. To similar effect may we refer your Honours or just give your Honours reference to the judgment of Justice Gaudron at 215 point 5. It is our submission that to speak of, and to rely upon, doctrines underlying the Constitution is to rely upon presuppositions or expectations outside the Constitution in a way which is inconsistent with the approach affirmed in Engineers. In that regard can we add to the citations given to your Honours yesterday by our learned friend the Solicitor-General for Victoria, a reference to what your Honour Justice Dawson said in McGinty at page 305 to 306 in the ALR report and 211 to 212 in the ALJR.

DAWSON J: What number ALJR?

MR KEANE: 70, yes. Sorry, your Honour. In this regard can we draw your Honours' attention, so far as the issue of the fundamental importance of the argument is concerned, to the submissions made by the Herald and Weekly Times in their long form submissions at paragraphs 101 to 102 at page 32 and in their short summary at paragraph 4 point 7. Those submissions affirm that as a result of the passage from ACTV in the judgment of Justices Deane and Toohey that we have mentioned, the approach to constitutional interpretation prescribed by Engineers has been "effectively though not expressly overruled". Your Honours, we submit, of course, that this is not so. One would have thought that the passing of Engineers might have been attended with a little more ceremony.

We would also venture to suggest, with respect, that their Honours, in the statement to which we have referred, did not intend to take such a step. But we cannot but agree that that is the tendency of that approach.

KIRBY J: There have been little ceremonies. There have been academic ceremonies. Even a song has been composed about it.

MR KEANE: But not mentioned to the Court, your Honour, and particularly not mentioned to the Court in ACTV, nor in Theophanous. Your Honours, in terms of the approach to constitutional development that your Honour the Chief Justice raised with my learned friend from Victoria, we would submit that point is fundamental because it is concerned with the very terms of the constitutional charter and how one sees the Constitution.

We would also submit that the discovery in the Constitution of propositions that deny the effect of the common law as regulating rights and duties between subjects is erroneous and, in that respect we rely upon what your Honour the Chief Justice said in Theophanous at page 153, where your Honour said that while it was theoretically possible that the Constitution could abrogate a rule of the common law regulating the rights and liabilities of individuals inter se, it does not purport to do so. And yet, that is the effect, in our respectful submission, of the reasoning in the joint judgment in Theophanous at pages 128 point 5, 130 point 8 and 136 point 8, and in the judgment of Justice Deane at 166 point 5.

Your Honours, in relation to reconsideration and overruling, we would submit that these are not questions of impression as to the meaning of a word in a statute as to which minds might reasonably differ, nor is it a question about the application of a settled rule of law, such as we find with the application of section 109 in terms of inconsistency between State and federal laws, nor, indeed, is it even concerned with whether a case falls within a recognised category of implication, such as the Melbourne Corporation principle, on which minds may reasonably differ. Rather, it is a question about the very terms of the charter.

Your Honours, dealing with one of the points that are raised against reconsideration of Theophanous and Stephens, may we submit, with the greatest respect, that this is not a case of testing the water by reason of a change in the composition of the Court. Members of the Court in McGinty have expressed, to put it no higher, reservations concerning the appropriateness of the approach developed from ACTV and applied in Theophanous.

That this is so, and that this affects the authority of the decision and the authority of the implication, has already been recognised in a judgment in the Court of Appeal in Queensland in Brisbane TV Limited and Others v The Criminal Justice Commission. Your Honours, it is an unreported judgment delivered on 17 September 1996. It is referred to by our learned friends from New South Wales and the Court has copies. We would simply refer your Honours to the discussion in the judgment of Justice McPherson, with whom Justice Byrne agreed.

KIRBY J: I think Justice McPherson also wrote for comment in the Australian Law Journal on current topics when he was acting editor. It is probably a potted version of what he said in this case.

MR KEANE: Your Honour has the advantage of me with that. I had not appreciated that. The relevant passage commences in the judgment of Justice McPherson which follows in the document your Honours have, the judgment of the President, and the relevant passage commences at the first full paragraph at the top of page 3:

The starting point of the appellant's submissions in this court is that there is implied in the Constitution of the Commonwealth a right or freedom to engage in debate about the policies or fitness of governments, political parties or public officers, which is to be understood as including persons seeking as well as those already occupying public office, because as it was submitted section 106(e) of the Criminal Justice Act infringes that constitutional freedom or is inconsistent with it, it is to that extent invalid.

We will not read, your Honours, the balance of what his Honour says but his Honour refers particularly to the judgments in McGinty and concludes at page 6, at the top of the page:

However, while accepting that in some of the decisions of the High Court since Nationwide New Limited v Wills it may be possible at times to identify majority support for wider reading of the Constitution, the decision and reasoning of the majority in McGinty persuade me that a judge of a court below the level of the High Court is not at liberty to adopt or act upon the freestanding principle of freedom of communication on which the submissions of the appellants in this case are based.

In our respectful submission, the circumstance that the authority of the freestanding implication as it is there characterised, deriving from ACTV and Nationwide News, has been recognised as being subject to threat by virtue of the views in McGinty. We would submit that it is a feature or a factor weighing in favour of reconsideration. Your Honours, we also wish to draw attention to what is said in the submissions that have been made on behalf of Fairfax and Western Australia Newspapers, in particular paragraph 8.9 where it is urged as a consideration against reconsideration that the Court should be slow to take a course which will deny rights to Australian citizens.

May we respond shortly to that? Firstly, one can say that the implication denies or is apt to deny rights just as it confers them. It denies rights to those who have been defamed. Secondly, it operates by denying the efficacy of legislative acts by those elected by the people. The third thing we would say about it is the comforting and nationalistic rhetoric referring to rights being denied to Australian citizens is, with respect, misplaced because the consideration, the implication may operate in favour of those who are not citizens at all.

In relation to a consideration your Honour Justice Kirby raised in the course of argument with our learned friend from Victoria, suggesting that the appreciation of error is something which is often something which involves decades or even generations - it is not always so, of course, with respect - and in this case those urging reconsideration do not rely upon considerations of inconvenience observed over time but rather upon a disparity in terms of principle.

May we mention simply, perhaps for your Honours' comfort if nothing else, that even in this field of discourse, the free speech field of discourse, one has the example of the United States saluting the flag cases where the Supreme Court of the United States overruled its previous decision, given only three years before, whereby it affirmed the validity of laws requiring school children to salute the flag. The two cases in question are Minersville School District v Gobitis [1940] USSC 105; (1940) 310 US 586, and the decision which overruled it was West Virginia State Board of Education v Barnette [1943] USSC 130; (1943) 319 US 624. Your Honour, we can make those cases available to the Court, and we will.

McHUGH J: There was no change in the Bench in those cases. Justice Frankfurter wrote the main judgment in Gobitis and vigorous dissent in Barnette.

MR KEANE: Your Honour, I think two members of the Court changed their views.

McHUGH J: They did, changed their views, yes.

MR KEANE: But I think there was a change in personnel. I think there may have been a new Justice as well; but two members of the Court did change their views.

McHUGH J: Yes, I think Justices Douglas and Jackson changed their views.

MR KEANE: Yes, I think that is right, your Honour.

KIRBY J: But it is relatively rare, is it not, that an important constitutional principle is re-explored in such a short time. It is rare in the United States and it is very rare in this country, I think. I am not saying that that a conclusive reason but it is a reason for anxiety about the public confidence in the process.

MR KEANE: Yes, your Honour. In that respect, the requirement of the rule of law that the laws be maintained and changed only regularly, or in a regular way, in our respectful submission, is not denied by the Court reconsidering the correctness of those decisions, neither affirming them nor rejecting them now.

KIRBY J: I am not suggesting that, but it is in part a matter of seemliness and part a matter of strength of the constitutional institutions and in part a matter of resisting the notion that in X years time we can have all these parties back again because the Court personnel change, urging to go back to the correct doctrine and to abjure the incorrect. These are the sorts of considerations that are reasons, at least in my mind, for restraint in disturbing something that was fully debated and settled and much known in our country.

MR KEANE: But was nevertheless quite original, with respect, quite original and novel.

GUMMOW J: Mr Reynolds' submissions yesterday were that it had not been fully debated, which he developed at some length. He said he was putting points that had not been laid out at the time of the argument in the earlier cases. If his submissions are correct, it is not correct to say that it was fully debated and settled.

MR KEANE: Yes, your Honour, I do not wish to go over or comment upon those submissions.

McHUGH J: Mr Solicitor, just something that occurred to me: there is another more recent line of cases where the US Supreme Court reversed itself very shortly, and that is National somebody against Usury where - - -

MR KEANE: And Garcia's Case, your Honour.

McHUGH J: And Garcia, yes.

MR KEANE: Quite, your Honour, a case with something very - - -

McHUGH J: Quite fundamental.

MR KEANE: Quite fundamental and very close to the doctrine of implied immunity. One wonders, with respect, if one is to allow suppositions, presuppositions or expectations to control the text and structure, or to be confused with text and structure, the implied immunity's genie would be out of the bottle as well, which is one of the reasons we say that this does go to the coherence of constitutional development. The last thing we wish to say in relation to reconsideration is that the difference evident in the joint judgment and the judgment of Justice Deane in terms of the content of the implication which one derives, itself leading to difficulties in identifying a ratio in the case, is a consideration which favours, in our respectful submission, or at least does not stand as an obstacle to reconsideration.

Your Honours, this is the last thing we wish to say. In relation to section 3.4 of the submissions of our learned friends for the Commonwealth, we submit, with respect, that those submissions are met by the same objection that stands in the way of the kind of implication said to affect Commonwealth power, except a fortiori, in our respectful submission, the constitutional provisions that the Commonwealth refers to in relation to the States, by referring to State institutions, is not prescriptive in relation to them and, indeed, with respect, a fortiori, it does not purport to affect the States with the requirements of sections 7 and 24 in relation to which the Commonwealth is affected. If the Court please.

BRENNAN CJ: Thank you, Mr Solicitor. Mr Solicitor for South Australia.

MR SELWAY: If it please the Court, we identify two errors in the reasoning of the majority in Theophanous. The first of those is set out in paragraph (11) of our written submission. In our submission, the implication that was identified by the majority cannot be construed from the structure or from the text of the Constitution.

In our submission, the correct implication is that identified by your Honour the Chief Justice in Nationwide News Pty Ltd v Wills [1992] HCA 46; 177 CLR 1, at 50 to 51, which is also referred to in your Honour's judgment in Theophanous. If we could, perhaps, paraphrase that implication, as we understand it, your Honour has identified a freedom of communication which is a freedom from any legislative or executive infringement of the discussion of governments and governmental institutions and political matters except to the extent necessary to protect other legitimate interests.

As we understand your Honour's reasoning, that implication is a necessary consequence of the implication of representative government which implication is itself to be understood in the context of the Constitution which primarily deals with legislative power rather than individual rights. Your Honours, given the submissions that have occurred, we would make three short submissions - - -

KIRBY J: Can I just go back to that one, because the majority in Theophanous and, I think, in ACTV, felt that "the balance had gone too far", the balance had shifted too far. Given that it is problematic as to where you draw the line, what happens when the view is reached that the Constitution gives the protection that the Chief Justice expressed and the Judges of this Court take the view that the balance has gone too far such that it derogates from that protection which the Constitution requires?

MR SELWAY: Your Honour, as we understand the approach of the Chief Justice, it was that the freedom is a freedom from legislative and executive action. If one assumes that that is the implication - - -

KIRBY J: That would affect the Codes and the standards.

MR SELWAY: That would affect the Codes. If one assumes that that is the implication, then that implication itself needs to be understood against the background of the common law. One would assume from such an implication, at least an acceptance within the Constitution, that the common law, as properly understood, was not in breach of any implication that could otherwise be construed. So, for example, a legislative provision that went no further than the common law, one would hold as being valid because it could not interfere with the relevant implication.

DAWSON J: What is the implication you build on?

MR SELWAY: Your Honour, it is the implication of representative government.

DAWSON J: What sort of representative government?

MR SELWAY: A representative government where the people elect and are represented by members of Parliament.

DAWSON J: Where do you derive that from?

MR SELWAY: Your Honour, one finds the implication in sections 7 and 15.

DAWSON J: Why do you need an implication?

MR SELWAY: The implication has its most obvious application - - -

DAWSON J: No, I am asking you, why do you need an implication?

MR SELWAY: Your Honour, one needs an implication to cover this situation: the situation where there is a constraint imposed upon an elector communicating with the representative - - -

DAWSON J: Why is not the question then, "Does that infringe the requirement of free elections which is to be found in sections 7 and 24?"

MR SELWAY: Free elections, your Honour, may be limited to an election period or something like it. Once one goes beyond an election period - - -

DAWSON J: One is construing those sections where - and, really, it is a question of whether it interferes with the choice which those sections require to be given to the people.

MR SELWAY: Yes, your Honour.

DAWSON J: Why do you need an implication?

MR SELWAY: Your Honour, one needs an implication, we say, for the reasons that - - -

DAWSON J: No, why do you say it?

MR SELWAY: We say it because, in our submission, the Constitution, referring to elections, referring to the election of members as representatives, implies within that an ongoing relationship of a representative to the electors - - -

DAWSON J: It does not require anything. It requires a choice.

MR SELWAY: Yes, your Honour, but it requires more than that. It requires a representative.

McHUGH J: If there is an impugned act, then surely the question is, "Does the Constitution necessarily imply that the doing of that act, or the enactment of that legislation, is inconsistent with the form of government which the Constitution sets up?", and the form of government the Constitution sets up is found in sections 7, 24, 25 and many other sections, but it seems to me, as I said earlier this morning, that to talk about representative government is just simply a shorthand description for what the Constitution already provides in terms. So why talk about representative government? Why not talk about what the Constitution provides?

MR SELWAY: Your Honour is correct at one level. Clearly one has to go to the constitutional provisions to find what, if anything, representative government means, or could mean. The bit where we say the implication builds on the Constitution and is necessarily implied is the relationship of the representative to those represented. We say that is clearly implied within the Constitution; that that relationship exists. You cannot construe it directly out of the express words of section 7.

DAWSON J: Of course you can, because if you are going to choose your representatives, there is necessarily a relationship, and that is the relationship. It is not an implied relationship.

MR SELWAY: Perhaps we could put it this way, your Honour. Assuming your Honour's approach is correct and it can be read out of, say, section 7, then we would say section 7 carries within it the necessary implication "not limited to elections."

DAWSON J: Then you are not really making an implication. I know I have been guilty of talking in terms of implication, but gradually I began to doubt whether it is an implication at all, and now I really think it is not. It is merely a matter of interpreting the particular section - the words of the sections.

MR SELWAY: Your Honour, we take the matter no further than to say that because of the relationship of representative with represented, which is clearly implied or expressed within the Constitution, there needs to be a freedom of communication both between them, but more generally about political matters and political institutions.

DAWSON J: Well, that I understand.

MR SELWAY: Your Honour, that is the implication that we understand his Honour the Chief Justice has found, with the qualification that his Honour has said that that implication is only an implication of a limitation of legislative and executive power because of the nature of the Constitution, which we, with respect, adopt.

McHUGH J: But when you are talking about constitutional implications, you talk about constitutional implications that either expand power, or which are necessary to protect something that is in the Constitution. Now, which one are you talking about?

MR SELWAY: It is a limitation to protect something within the Constitution, namely - - -

McHUGH J: That can only be whatever rights are conferred by the various sections; 7, 24, 25, 41, 128.

MR SELWAY: Or which are necessarily implied by those provisions. We accept that, your Honour. And it may be, to the extent we disagree, it is what is expressed and what is necessarily implied.

BRENNAN CJ: Is it the function of choosing, which is referred to in 7 and 24, from which you draw an implication of freedom to discuss matters relevant to the exercise of that function?

MR SELWAY: It is, your Honour. But we go one step further.

BRENNAN CJ: That is an implication, is it not?

MR SELWAY: Yes, I think it is, your Honour. But we also take the matter one step further in the sense that, not only does the section talk about choosing, but they imply that the representative, having been chosen, will have a particular relationship with those represented. That is an implication itself, but leads to a further implication.

DAWSON J: Well, it is not. I mean, he is chosen and, therefore, he is their representative. That is the relationship, and that is the relationship which is constituted by making the choice. By "choice" you mean proper choice, and you cannot make a choice unless you know the alternatives, and the alternatives involve matters of policy and being able to understand them and, from that, you get from the section the idea that there is at least some degree of freedom of discussion which it requires. Now, you may describe that as an implication, perhaps. But perhaps it is proper to say it is not really a matter of implication, it is merely interpreting the section to its fullest extent. But it does not matter. I mean, in a practical sense, it is just what label you give it.

MR SELWAY: Yes. We understand what your Honour puts. We say that we understand it to be an implication, but clearly, if it is expressed in the sense that it is necessarily contained within the words, we would adopt that.

McHUGH J: I am not sure it is just a matter of form because if you see these "rights implied" then they must be enforceable by the individual as rights whereas if you look at it rather as a necessary implication from the Constitution to protect some constitutional provision, then it does not necessarily give any individual rights. In ACTV I may have been guilty of the error of talking in terms of rights in the electors whereas the proper interpretation or the proper view may have been that there is a constitutional implication that governments cannot do this, or common law rules cannot do this, which are inconsistent with that and it is a question of who has got the standing to sue. I think there may be more than a question of form involved.

MR SELWAY: Your Honour, I understand what your Honours puts as well. If we put it this way. Our understanding of the Chief Justice's implication, and our adoption of it, is that his Honour has looked beyond the mere fact of whether in order for the choice or the relationship of represented and representee to be appropriate, that there needs to be some freedom of communication. His Honour has then looked at what sort of freedom should be implied by the Constitution. It is said within the context and structure of the Australian Constitution, dealing as it does primarily with legislative power, the relevant freedom is a freedom from legislative and executive action. With respect, we say, that seems to us to be the appropriate identification of the implication.

McHUGH J: For the reasons I put earlier, I have problems about introducing freedom into it.

MR SELWAY: I understand, your Honour. It is very difficult to discuss it without - indeed even using the word "rights" as perhaps your Honour did in ACTV.

DAWSON J: Any process of interpretation of a statutory instrument will involve at times the making of implications because that is what the process of interpretation is. But when you talk of constitutional implications you are really talking about something quite different. You are adding to or detracting from what is there in the written word.

MR KEANE: Your Honour, I accept what you say but with this qualification. If the implication is only made because it is necessary to make it, in the sense that my learned friend Mr Reynolds put yesterday, then we would say that whilst on one view one is adding to the text, nevertheless what one is adding is necessarily there.

Your Honours, there are three short submissions we wish to put about the nature of that implication. The first is that, contrary to the submissions for the Commonwealth, the only implication of representative government within the Constitution relates to the representative government of the Commonwealth. The only relevance of that matter in this case is whether there is some freedom of communication imposed by the Commonwealth Constitution at the State level. This case does not raise the issue of whether the States have Parliaments, nor does it raise the issue of whether those Parliaments can perform the relevant functions identified under the Constitution.

The issue of whether representative government is implied at the State level was fully argued in both McGinty and in Muldowney. In our submission there is no such implication. It is also our submission that all of your Honours, except Justice Kirby, who has not yet had the opportunity to consider it, have already so held. If I could just give the Court the references without taking the Court to them. Your Honour Justice McHugh in Theophanous [1994] HCA 46; 182 CLR 104 at 201; your Honour the Chief Justice in Stephens [1994] HCA 45; 182 CLR 211 at 235; in McGinty [1996] HCA 48; 134 ALR 289; your Honour Justice Toohey at 324 to 328; your Honour Justice Gaudron at 333; and, as we understand your Honour's judgment, Justice Gummow at 390 to 394.

In Muldowney v South Australia 136 ALR 18 your Honour the Chief Justice at page 22; your Honour Justice Dawson at pages 25 to 26; your Honour Justice Toohey at 29; and your Honour Justice Gaudron at page 30. With respect, we would say that your Honours' judgments on that point were correct.

The second point we would wish to make is that the majority position in ACTV, Theophanous and Stephens - - -

KIRBY J: Is the logic of that point that a Parliament of a State can be constituted in any old way.

MR SELWAY: No, not necessarily, your Honour.

KIRBY J: And could have no democratic features or it could be a central committee that is substituted for a Parliament. It seems hardly likely given that the citizens of the Commonwealth are also the same people in the States.

MR SELWAY: I understand that, your Honour. All we put - and there may well be an argument that there needs to be a Parliament and the Parliament needs to be understood in the context. But representative government and representative democracy is a different thing from having Parliaments.

KIRBY J: But a Parliament, at least as I conceive it, is a body, as you said, elected by and representing the people, and that is a form of representative government.

MR SELWAY: With respect, your Honour, if we have, for example, an election of the American President, that is not a representative system of government, it works through a committee structure. One could imagine putting a committee structure in place to serve a number of different purposes.

KIRBY J: I find it hard to imagine.

MR SELWAY: One could imagine, for example, the representation of particular groups.

KIRBY J: We are talking about an Australia Parliament in the context of an Australia Constitution and Australian history.

MR SELWAY: True, your Honour, but we are also talking about a Constitution which was not made for today but may be needing to be interpreted in 100 years. To say today that the sort of government that one can identify today is the sort of government we will necessarily have in 200 years may be false.

McHUGH J: What about the Federal Council of Australasia Act which really governed the "federation" in a loose sense? It was a committee, was it not?

MR SELWAY: Nominations, I think, your Honour.

KIRBY J: It was a great failure.

MR SELWAY: True. One cannot imagine those circumstances being adopted. But if one looks at New Zealand, for example, where they have certain seats, as I understand it, allocated for Maoris. These matters were fully canvassed in McGinty and all we put is that there is no implication of representative government and certainly no implication of free speech that can be implied from the Commonwealth Constitution in respect of the States.

Indeed, if my learned friend, the Solicitor for the Commonwealth is right, the relevant implication from the Commonwealth does not need to go to sections 7 and 15, you can get it from section 1 by itself. The mere fact of the mention of the Parliament is enough to create the implication. We say that cannot be right.

Your Honours, the second matter is that whilst the majority position in ACTV, Theophanous and in Stephens was that federal and local government political matters were so intermingled that a limitation on the discussion of State matters was necessarily a limitation on the discussion of federal matters, our submission is that the approach of your Honour the Chief Justice is to be preferred. As we understand your Honour's approach, your Honour would seem to accept that there may be sufficient intermingling such that what is primarily a State matter may be a federal matter in fact, but that the matter is still one of fact and has to be established in a particular context and case. If we could just refer the Court to Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211 at 235.

The third matter is that the implication is a limitation upon both Commonwealth and State powers. We just make reference to Theophanous at page 156. The second error that we say was made in the approach of the majority is the way they extrapolated from the implication to the defence. My learned friend Mr Reynolds read to the Court yesterday the relevant parts of the judgment of Theophanous referring to public interest, the balancing required and reputation.

Our submission is that what the majority has done is created what is a constitutional defence taking into account issues such as reputation and public interest where those issues cannot themselves be discerned from the Constitution. Even if freedom of communication is a constitutional implication, reputation is not. Consequently one cannot determine a constitutional defence taking account of reputation. In our submission, the correct approach, given what we understand the implication identified by the majority was, was to permit a defence based upon a constitutional right to make a relevant statement or communication subject only to a reasonably proportionate law, be it statutory or common law, which the majority held in that case that there was not one.

That is to say, our understanding of the right identified by the majority necessarily leads to a broader defence than that identified by the majority and the process by which that defence was qualified is, in our submission, not an approach that can be taken in constitutional interpretation. It does not prevent in due course either the Parliament introducing a defence to, as it were, fill the gap or the common law being developed in due course to fill the gap, but in terms of creating a constitutional defence, it is our submission that issues such as reputation cannot be taken into account in a balancing exercise because the Constitution itself does not protect reputation.

The result of that approach of using reputation to protect - to create a constitutional defence, would seem to be that the States or the Commonwealth could not legislate to create an absolute privilege in respect of political discussion, because such legislation would not adequately protect reputation.

McHUGH J: That is the problem. I raised this on Monday. It seems to me that if the States wanted to enact a New York Times v Sullivan defence in favour of the press, they could not. So Theophanous might be a very short term advantage from the point of view of the media. On the other hand, Theophanous seems to undermine the ordinary citizen's current common law qualified privilege to make comments and statements on political matters.

MR SELWAY: Yes, that is the point we make, your Honour. Accepting the implication that was identified by the majority, at least for this purpose, accepting that it was a right which was inconsistent with the common law, we cannot understand and, we submit, it cannot be done, how you then create the qualified privilege constitutional defence.

McHUGH J: I must say, speaking for myself, that while I do not agree with Justice Deane's judgment, at least it has the logic of saying, "Well, there's a total freedom of communication on political matters and you're not liable to any action at all". That seems to me at least to be a result that you possibly could get from the Constitution but, as you point out, this balancing aspect does not seem to find any anchors at all in the Constitution.

MR SELWAY: No, your Honour, that is our submission. If it please the Court.

BRENNAN CJ: Thank you, Mr Solicitor. Mr Solicitor for Western Australia.

MR MEADOWS: May it please the Court. Our position differs from that taken by South Australia, particularly in relation to the nature of the so-called implied freedom. We deal with this particularly at paragraphs 4.5 through to 4.10 of our outline of submissions.

Essentially, what we say the implied freedom is about is the electoral processes of the Commonwealth, and that that is what can be drawn from sections 7 and 24. We say, in paragraph 4.9 of our submission, that it is not logically or practically necessary for the proper exercise of the Australian people's constitutional function of voting for the freedom of political communication to extend beyond the context of a citizen's electoral choice, and go on to say that while in some circumstances a law which operates outside an election period may affect the electoral choice in a manner inconsistent with the requirements of sections 7 and 24, such circumstances are likely to be rare, and we give three examples there. I will not take the Court to those examples. I would only suggest that perhaps the example given in (c), as being a situation difficult to envisage in light of the current circumstances, may not be quite so difficult to envisage.

TOOHEY J: I am not sure how far that submission goes, Mr Solicitor. You begin, in paragraph 4.5, by saying that sections 7 and 24 are principally concerned with electoral processes. Do you then exclude from any implied freedom of communication any debate that might take place on an ongoing basis on an issue on which political parties differ, even though no election is in the offing?

MR MEADOWS: We would say that in some instances it may not. When we talk about the implied freedom, we are talking in the context of legislative power and we would be saying you should be looking at a piece of legislation to see whether or not that piece of legislation infringes the implied freedom. Even if one was to accept that there was some other way in which the implied freedom could exist, we would say that there will be instances outside the election period where what is being said could have an influence on electoral choice. In that instance it would infringe the freedom.

KIRBY J: Is not that an ongoing process, that everything that is happening at all times in political debate? Is that not the very notion of a democracy, that you are in constant dialogue and consideration of economic, social and political issues? I mean, you just have to open every day's newspapers to see that that is the sort of dialogue that goes on between communication in Australia and their political leaders or would be leaders.

MR MEADOWS: One can take that as given, your Honour, but it does not follow from that, that what is being said is likely to impact on electoral choice. So that - - -

KIRBY J: I do not see why not. You are constantly, as a citizen, assessing the points of view being put forward. It is not just, surely, in that two weeks before election, with all the jingles, that there is our democracy. Our democracy is a constant dialogue between our people and their would-be leaders.

MR MEADOWS: We give an example here of a law which restricted statements about the official conduct of a member of a court created by or under Chapter III, and we say that it would be difficult to envisage that such a law could ever infringe the implied limitation as it would bear no relationship to electoral choice required by sections 7 and 24. So you could have statements being made but they do not have any bearing on electoral choice.

TOOHEY J: But that would seem to imply that legislation which placed a ban upon the public discussion of a particular issue of a political nature, but one not directly associated with any forthcoming election, or perhaps even not one on which political parties had expressed a particular view, would survive the implied freedom of which the Court expose.

MR MEADOWS: We would say that it would because it does not impinge upon the electoral process.

TOOHEY J: That is giving, is it not, the implied freedom a more restricted operation than any of the Justices have thus far given it?

MR MEADOWS: With respect, going back to ACTV, we can see from some of the Justices there a restriction of the implied freedom to the electoral process. Indeed, if one looks at the argument that was put by the applicants in that case, they put their argument in the alternative, and the second alternative was to limit the freedom to the electoral process.

GUMMOW J: But if these three examples are, I suppose, a fairly exhaustive indication of your position, would not Nationwide, itself, have been decided differently?

MR MEADOWS: It would have, your Honour, yes. I notice the time, your Honour.

BRENNAN CJ: Yes, we will adjourn until 2.15 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.20 PM:

BRENNAN CJ: Mr Solicitor.

MR GRIFFITH: Your Honour, with leave, may I answer Justice Kirby's question as to franchise at 1900? We would see the answer in our reference at footnote 72 on page 23 of our submissions which is to the judgment of Justice McHugh in McGinty. We give the page citations.

KIRBY J: Yes, his Honour immediately pressed it on me.

MR GRIFFITH: I beg your pardon, your Honour.

KIRBY J: His Honour drew it to my notice immediately.

MR GRIFFITH: I now draw it to the rest of the Court's, with leave. Thank you, your Honours.

BRENNAN CJ: Mr Solicitor for Western Australia.

MR MEADOWS: Western Australia submits that the implied freedom of political communication should properly be viewed as a limitation on legislative and executive power and not one which affects private rights inter partes or rights at common law and we expand on that in paragraphs 5.2, 5.13 and 5.14 of our submissions.

GUMMOW J: Is there anything in these, Mr Solicitor, that is not in any other submissions? In other words, are there any unique points?

MR MEADOWS: I think we have probably gone further than others in terms of the scope of the implied freedom. As I said prior to - - -

TOOHEY J: Well, "further" might be putting it a bit strongly.

KIRBY J: Further or narrower?

TOOHEY J: You have gone less distance.

MR MEADOWS: We take comfort from what his Honour Justice Dawson and his Honour Justice McHugh said in ACTV and also in Theophanous and we refer to the citations at 4.5.1 of our submissions which we would say support the stance which we take on that score. Our submission regarding the implication being a limitation on power rests fundamentally on the principle that the Constitution, being an instrument of government creating various governmental structures and conferring legislative power, does not purport to affect private rights. So much was said by your Honour the Chief Justice in Theophanous at 153, in particular, that the Constitution does not, in terms, prescribe a standard of freedom of communication different from that of the common law, and we develop that at 5.15 to 5.23.

This is not to deny that the Constitution has status as the supreme law of Australia. It is to recognise that the Constitution is intentionally silent when it comes to private individual rights and nor does it imply that a constitutional freedom or guarantee cannot benefit an individual. However, the benefit which an individual might gain arises as a function of the limit on executive and legislative power, which limit marks out the extent of the freedom.

What we say is that where the legislature or the executive cannot go, the common law will continue, that is to say, that the common law rights of the citizens will continue to be available. Though, in this sense, if one goes to the pleadings in the Levy matter, we would say that paragraphs 12(a) and 12(b) of the statement of claim are bad in law as they seek to plead a constitutional implication conferring a personal freedom on the plaintiff. These pleas are to be found in the demurrer book at page 11. On the other hand, paragraph (c) is not so clearly bad in law as it focuses on the structural nature of the implication.

If one turns to the ABC's pleading, the defendant there submits that the Constitution does affect private rights, and this is to be found in paragraphs 52 and 53, where the defendant gives two examples, where it submits the Constitution unambiguously confers immunity from civil liability for defamation. However, we would say that on a closer inspection, these are not inconsistent with our submission. First of all, the ABC refers to section 49 which confers privileges and immunities on the two Houses of Parliament and it provides that:

The powers, privileges, and immunities -

of the two Houses -

shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament -

Three points can be made about this provision. Section 49 is an express provision conferring privileges and immunities on the Parliament. There is no need to find any implications.

Secondly, the provision, in terms, confers no private rights or immunities. The powers, privileges and immunities of Parliament belong to the Parliament and not to the individual members. So much was held in Sankey v Whitlam [1978] HCA 43; 142 CLR 1. Thirdly, to the extent that defamation proceedings are affected by section 49 in the sense, for example, that an action may not be brought for words spoken in Parliament, that effect is simply to confirm the privileges which the common law recognised in relation to the Parliament in the United Kingdom. So, no greater or lesser protection is given than that which was available at common law.

Section 49 must also be seen in light of the fact that, unlike the other powers of Parliament, privileges conferred by it are not conferred subject to the Constitution, so it must stand alone. The next example is that of judicial immunity.

TOOHEY J: Just before you leave that, could I just take you back to Levy for a moment, Mr Solicitor, to make sure I understand what you say in regard to Levy. Do you say that it raises questions of private rights and, to the extent that it invokes some implied freedom in support of those rights, it is using that freedom for an unwarranted purpose?

MR MEADOWS: A purpose for which it cannot be used. In other words, even if the right exists as a free-standing right, it is not one which is capable of conferring private rights.

TOOHEY J: But in what sense does it confer private rights?

MR MEADOWS: We say it does not, your Honour.

TOOHEY J: No, no, I mean, in what sense does the plaintiff seek to invoke private rights as opposed to challenging the validity of the regulations on the footing that they are inconsistent with some constitutional limitation?

MR MEADOWS: He is talking there in his pleading in terms of pursuing a right to speak publicly.

TOOHEY J: Yes, but it is in the context, is it not, that there was a limitation on the power of the Parliament to - - -

MR MEADOWS: But he is asserting the limitation on the basis of a private right.

TOOHEY J: It is perhaps one way of putting it but I would not have thought it was perhaps the accurate way of putting it.

MR MEADOWS: It talks of his freedom or positive right to speak.

TOOHEY J: It is quite different from the ABC situation in so far as there is litigation inter partes. This is raised in Levy; it is raised by way of a defence to a charge.

MR MEADOWS: Not strictly speaking, your Honour, in that the proceedings are initiated by the plaintiff and he seeks declaration, as I recall.

TOOHEY J: Yes, that is true. But let us assume that charged with an offence under the regulations the defendant challenges the charge on the footing that the regulations are invalid because they are contrary to a constitutional limitation. If it had come before the Court in that way - - -

MR MEADOWS: Yes. But it is not invalid because - - -

TOOHEY J: It would be difficult to see, as a matter of private rights - - -

MR MEADOWS: Sorry, your Honour. It is not invalid because of a right which he has, it is invalid because the legislation infringes the constitutional implied freedom.

TOOHEY J: Indeed. I thought you were, as it were, offering the argument that this was a private right on which he relied as itself an answer to any challenge to the charge.

MR MEADOWS: That is the way it is pleaded, we would say.

TOOHEY J: Yes. That perhaps has to be looked at more carefully as a matter of pleading and whether, in the end, it is a matter of pleading or whether one goes to the substance of what is involved.

MR MEADOWS: If one goes to the declaration ultimately sought it is as to the existence of this private right, because the declaration is that it is invalid because of the existence of this private right.

TOOHEY J: But is it? Where do you take that from?

MR MEADOWS: My learned friend, Mr Castan, has passed me a note to say that he has abandoned any claim of a positive right in his argument, although he says it should be read as referring to his freedom but, again, we would say that it is not his freedom. He has a freedom at common law to speak and the question is whether the legislation impinges upon that freedom and it can do so legitimately unless it is in breach of the implied freedom which flows from the Constitution.

KIRBY J: Can I just ask in terms of flowing from the Constitution, the first declaration that is sought is that it is invalid and inoperative? It is beyond the powers of Parliament of the State of Victoria. That could arise either under the Federal Constitution or under the State Constitution as an implication from the State Constitution. Remember that passage in Stephens where reference is made to the State Constitution. What is your submission in relation to that?

MR MEADOWS: We could perceive that legislation of a State Parliament could infringe on the implied freedom to be found in the Commonwealth Constitution but it would have to be legislation which affected electoral choice at the Commonwealth level. So far as the States are concerned, unless there is a provision such as that in section 73 of the Western Australian Constitution, there is no such implied freedom available in respect of the State context of electoral choice.

KIRBY J: Why would it, the logic of Capital Television, not flow to the State Constitutions as well?

MR MEADOWS: On our assessment of the freedom, it is a freedom which is one which deals with Commonwealth elections.

KIRBY J: That is within the rim, in the ambit of the Federal Constitution, but if you are looking at the State Constitutions as well and the logic of it, you have a Parliament, you have electors, you have people who are fighting for support, and the theory could be - and it seems to have been accepted by the joint judgment in Stephens - that it says here:

Deriving both from the Commonwealth Constitution and from the State Constitution.

MR MEADOWS: That is because in Stephens there was section 73 of the State Constitution. So far as other States are concerned there is no similar provision, as I understand it. Therefore in order to impose this restraint at a State level, the law in question would have to impinge upon electoral choice at the Federal level. A good example of it is what happened in Stephens

where, if I could take the Court to page 236 and the judgment of your Honour the Chief Justice in that case where you dealt with the Criminal Code defences and there your Honour pointed out that certain provisions of the Western Australian Criminal Code provide defences in civil proceedings as well as in criminal proceedings and that they also modify the common law. Those provisions had the potential to impinge upon the implied freedom because, for example, they could have been said to have provided the defence to something which was said in the context of a Federal election, in a defamation action.

That is an example of what I am putting to your Honour Justice Kirby of a State Act which had that potential. As it transpired, your Honour the Chief Justice said that the legislation in question was appropriate and adapted to the fulfilment of a legitimate purpose and therefore it did not infringe upon the freedom. I am sure Sir Samuel Griffith would have been gratified to hear that when he drafted the provisions of that part of the Code, he had not done so.

GUMMOW J: But there is a question that is worrying me about this, Mr Solicitor. I wonder if you can help me. It is related to what you have just been saying and it concerns the impact of the implied freedoms, or however one characterises them, whatever term one uses to identify them, upon State statutes as a matter of constitutional operation, as it were. If one is looking at it as a matter of constitutional operation, one cannot assume the presence of State reading-down legislation - do you follow me - and there is no obligation on the State to enact section 15(a) or its equivalents. The common law rule, as I understand it, would be that you would have to go through it with a blue pencil and, unless you could rule things out and leave something there that had a life of its own, the whole lot went.

MR MEADOWS: Yes, it could easily be so, your Honour. I would have to concede that - - -

GUMMOW J: There is some discussion of the common law rules in the joint judgment in Harrington v Lowe 70 ALJR, particularly at 503. How would all this work then as a matter of interaction on a State statutory system?

MR MEADOWS: Well, the State would have to take care to exclude from a Defamation Act any provision which infringed upon the freedom, either by - - -

GUMMOW J: Or run the risk of losing its whole Act.

MR MEADOWS: Yes, or have a reading-down provision which would enable that to occur. It is only when a State Parliament seeks to legislate that it has to have regard to the existence of the implied freedom. Of course, there are other issues which can arise there as well of course, and that is that such legislation might also be seen to have an effect on laws restricting - I will start again on that, your Honour. There could be a second limitation on legislative power which will have an effect on laws restricting freedom of political communication, and that is those limits which are between the various polities in the Federation preventing each from curtailing the capacity of the other from functioning as an independent member of the Federation. We deal with this in paragraphs 6.7 to 6.9 of the submissions. So that you could easily have a situation where the infringement of that principle could also impact on the implied freedom.

This is evident from the conclusion of your Honour the Chief Justice in ACTV at page 164 where you held that the restrictions placed by the Commonwealth Parliament on political broadcasts in relation to Commonwealth elections was an appropriate and adapted exercise of legislative power, but in relation to State elections it interfered with the functions of the State in an impermissible way, and your Honour Justice McHugh held to similar effect at page 244.

If I could just come back to what I was saying about the ABC's defence and I was about to address the issue of judicial immunity. Another example given by the ABC of the Constitution unambiguously conferring immunity is judicial immunity from suit which is said to be impliedly conferred by Chapter III and in support of that proposition the ABC cites Gallo v Dawson 82 ALR 401. However, if one goes to that case, the judicial immunity from suit referred to in that case was not identified as arising under Chapter III but as a fundamental principle of the common law. The protection given to the judiciary from suit is neither more nor less than that provided by the common law.

So if Parliament were to legislate so as to remove common law judicial immunity from suit then you might have a question as to whether it was inconsistent with Chapter III. All that this does is confirm that implications in the Constitution act as a fetter on legislative power and that, in the absence of legislation, the freedom which is enjoyed, the freedom from suit which is enjoyed by the judges, is one which is enjoyed according to the common law and it would only be where an attempt was made to legislate that Chapter III would come into play.

So we would say that there are three limitations on legislative power relevant to freedom of political communication. There is the one which is to be found from sections 7 and 24 of the Constitution; there is the limitation which I have referred to in regard to the Melbourne Corporation principle; and the third limitation is one which impacts on freedom of political communication, is one which operates solely in relation to Commonwealth legislative power. This limitation serves to distinguish between the States and the Commonwealth in the capacity to effect freedom of expression.

This third limitation arises from the fact that a law which impacts adversely on freedom of expression may, for that reason, not be able to be characterised as a law with respect to a particular head of power, or in the context of the incidental power. Davis and The Commonwealth is an example of such a case where, in the context of the incidental power, it was said to be not reasonably incidental to that power to affect freedom of expression in the context of the Bicentenary Act.

GUMMOW J: Or the Territories power, which is reliant on it as well, I think.

MR MEADOWS: Quite so, your Honour.

BRENNAN CJ: Mr Solicitor, are you reaching somewhere towards the end of your submissions?

MR MEADOWS: I am, your Honour, and I am sorry that I have gone longer than anticipated, but some of my time was taken from me by others - unintentionally I have to say.

If I could just take the example of the Wildlife (Game) (Hunting Season) Regulations 1994 which is the subject of the Levy Case. It is submitted that those regulations cannot be said to affect in any way political speech in a manner inconsistent with limitations on legislative power affecting the States. If similar legislation was passed by the Commonwealth, say under the external affairs power pursuant to some treaty, then one would have to see whether or not those regulations were so disproportionate to the implementation of a treaty as to deny the legislation a sufficient connection with the external affairs power.

So, if we could just conclude in this way: once it is recognised that the implications requiring a certain degree of freedom of communication, properly regarded as limitations on legislative power rather than free-standing principles affecting the common law, the difficulties which are said to arise as to the enmeshing of federal and State discussion are, we would say, largely illusory. The Court will only be called upon to decide the validity of particular laws. The statute will either be valid or it will not be valid, and this is demonstrated by ACTV and Nationwide News. If it is valid, it applies according to its terms regardless of the fact that it may incidentally affect a particular person's freedom of expression. The Herald and Weekly Times v The Commonwealth of Australia, [1966] HCA 78; 115 CLR 418 is an example. If the law is invalid, of course, it will have no application regardless of the circumstances or the person sought to be affected.

So it is not necessary to determine, in relation to a particular set of facts, whether the speech concerned relates to federal or State matters or to electoral choice. The only question is the validity of the law. This is in the same way that section 92 will invalidate laws discriminating against interstate trade in a protectionist sense, but not simply because a particular interstate trader is affected by a law of general application. May it please the Court.

BRENNAN CJ: Thank you, Mr Solicitor. Mr Acting Solicitor- General for New South Wales.

MR KATZ: If your Honours please, may I remind your Honours that my client was an intervener in the Levy matter from the outset, and intervened in the interests of the defendants in the matter. His intervention continues to be ultimately in the interests of the defendants, but he differs from the defendants in that he maintains that the decisions of Theophanous and Stephens should not be overruled. As to the Lange matter, the intervention is in the interests of the plaintiff. But again, unlike the plaintiff, my client submits that the decisions in Theophanous and Stephens ought not be overruled.

The outline of the submissions which I wish to make takes this form: first, I would seek to make some submissions generally applicable both to the Levy Case and the Lange Case, then deal specifically with some aspects of the Lange Case, then specifically with some aspects of the Levy Case. The general matters are these. Did the decision in Theophanous have a ratio? Did the decision in Stephens have a ratio? Thirdly, what approach should the Court take to reopening?

I am conscious that your Honour, Justice Kirby, said yesterday that this question of whether or not these cases had a ratio was a tedious, but necessary, question. When one asks the question whether or not a decision has a ratio, usually one is confronted with a judgment of the Court in an unenlightening form, if I may put it that way. To take an example, which I will refer to shortly, the ultimate order of the court - in particular, this Court - may simply be nothing more than rule nisi for a prohibition discharged.

Then the question arises as to the propositions of law which were considered necessary by the judges who joined in the making of that order, and the process of finding a ratio is naturally concerned with examining the reasons for judgment in order to distil the propositions of law. Theophanous' Case is an unusual case in this sense, that the orders of the Court themselves contain propositions of law. The orders of the Court consist of answers to questions in a stated case, and those answers themselves, as I say, amount to propositions of law.

In that sense, in my submission, it is necessary to accept that Theophanous has a ratio. It is the propositions of law contained in the answers to the question. But a question may be asked whether there are any further underlying propositions of law which can be distilled from the reasons for judgment given by the various Judges who joined in the making of the ultimate orders.

My answer to that question in Theophanous is no. It is not possible to distil any further underlying propositions of law from the reasons for judgment. In my submission, the only real issue that arises in connection with that matter is what it was that was intended by Justice Deane in his addendum to his reasons which appears in Stephens [1994] HCA 46; 182 CLR 104, at pages 187 and 188. If one were to construe the language of his Honour in isolation, it might be possible to assert that, on a fair reading of it, what his Honour was doing in the addendum was withdrawing his reasons for judgment and, instead, adhering to the reasons for judgment given by his Honour the Chief Justice and Justices Toohey and Gaudron.

In my submission, however, it would not be appropriate to read the addendum in isolation. When one reads not only the addendum to his Honour's reasons in Theophanous but also his Honour's reasons in Stephens which appear in the same volume at page 257, it is apparent, in my submission, that in Theophanous his Honour adhered to the views which he expressed from beginning to end and did not intend by the words of the addendum in some way to withdraw the reasons which he had expressed. It may be convenient to go immediately to page 257 in Stephens. His Honour there says that in Theophanous - he explained the reasons which caused him to conclude certain matters - I need not develop them presently - and then about 12 lines down, his Honour says:

My views did not, however, prevail in Theophanous to the extent that they would attribute a less qualified operation to the constitutional implication in such cases than that accorded it by Mason C.J., Toohey and Gaudron JJ.

May I pause there to say, it appears to me, with respect, that his Honour is asserting that he held views from beginning to end in Theophanous. Those views did not prevail. It is that which makes me say that one cannot treat his Honour as having joined in the joint reasons for judgment in Theophanous. However, in Stephens, his Honour goes on to say, following the words I have just read:

In view of the division between the other members of the Court, it would, to that extent, be inappropriate for me to adhere to them -

that is to say, to the views which he had expressed in Theophanous -

for the purposes of this case.

In my submission, a fair reading of those words discloses an intention on the part of his Honour to adhere to the views expressed in the joint reasons for judgment in Stephens' Case. So that it is proper to treat the reasons of the Chief Justice and Justices Toohey and Gaudron as having been adhered to by Justice Deane, thereby providing a source within which one may discover propositions of law founding the ultimate judgment of the Court.

BRENNAN CJ: For the purposes of this case?

MR KATZ: Yes, your Honour, which is, in my submission, sufficient for all purposes. If the reasons are the reasons of a majority of the Court, then the ratio discerned in them binds this Court subsequently unless, of course, it should choose to overrule the decision.

McHUGH J: Why is not the more natural reading of what his Honour said is that he was not relying on his reasons but he was simply agreeing with the answers?

MR KATZ: That, it appears to me, imputes to his Honour an intention to decline to give any reasons for the judgment in the case, something which would be in breach of his duty.

McHUGH J: Not unknown; not unknown. One judge in the New South Wales Court of Appeal used to regularly say that he agreed with the orders of the court, and the comment was made on it in Sutherland Shire Council v Hayman.

MR KATZ: Your Honour, it may be a possible construction but my submission is that the more obvious construction of his Honour's intention was that he intended not only to withdraw the views which he had expressed but also to adhere to the views which the others had expressed. Your Honour, it may be that your Honour's construction is the appropriate one and against the prospect that that should be so I should refer to your Honour's reasons in the case of Re Tyler; Ex parte Foley, [1994] HCA 25; (1994) 181 CLR 18, at page 35. Your Honours will recall that this was the third of the trio of military justice cases. One had first Re Tracey; Ex parte Ryan, then Re Nolan; Ex parte Young, and then finally this case, Re Tyler; Ex parte Foley.

Your Honour Justice McHugh in your Honour's reasons, which began at page 35, began first by giving a brief account of the facts in the case before the Court. Then in the first complete paragraph on page 36 your Honour discussed the Ex parte Ryan Case. Then at the top of page 37 in the first complete paragraph your Honour discussed the Ex parte Young Case, and then said in the middle of page 37:

The divergent reasoning of the majority judges in Re Tracey and Re Nolan means that neither of those cases has a ratio decidendi.

May I pause to say that for different reasons it may be the case, contrary to the submission which I have made, that there is no ratio decidendi either in Theophanous or Stephens apart from those propositions of law which are apparent in the answers themselves to the stated case. But your Honour continued:

But that does not mean that the doctrine of stare decisis has no relevance or that the decisions in those cases have no authority as precedents. Because it is impossible to extract a ratio decidendi from either of the two cases, each decision is authority only for what it decided. But what is meant by saying that a case, whose ratio decidendi cannot be discerned, is authority for what it decided? It cannot mean that a court bound by that decision is bound only by the precise facts of the case. Stare decisis and res judicata are different concepts.

In my opinion, the true rule is that a court, bound by a previous decision whose ratio decidendi is not discernible, is bound to apply that decision when the circumstances of the instant case "are not reasonably distinguishable from those which gave rise to the decision".

May I interpolate again that your Honour was speaking there of a court bound by a previous decision. It is my submission that this Court is bound by its own previous decision unless and until it should chose deliberately to overrule those decisions so that the principle which your Honour enunciated there is applicable presently.

If it should be the case that, for whatever reasons, your Honours came to the view that neither Theophanous nor Stephens did have a ratio, then in my submission the proper approach would be that which your Honour developed at the bottom of page 37. I should, before leaving ex parte Foley mention one other aspect of your Honour Justice McHugh's reasons in the matter. In the first complete paragraph on page 39 your Honour said this:

Although I remain convinced that the reasoning of the majority Justices in Re Nolan and Re Tracey is erroneous, I do not regard that as a sufficient reason to refuse to give effect to the decisions in those cases. They are recent decisions of the Court where, after full argument on each occasion, the Court upheld the validity of the Act in circumstances where the facts are not readily distinguishable from the present case.

Your Honour then explained the similarity of the facts concerned and then in the middle of the next paragraph said:

I am unable to see any legally relevant distinction between the three cases. Like cases should be decided alike. Uniformity of judicial decision is a matter of great importance. Without it, confidence in the administration of justice would soon dissolve.

Your Honour quoted Lord Devlin. Then spoke of defeating expectations which had been aroused by the earlier decisions. Then pointed out on the top of page 40 that the -

decisions are confined to the special position of the defence forces and.....have no authority outside -

that particular area. So that your Honour concluded:

Accordingly, in my opinion, the Court should continue to follow Re Tracey and Re Nolan in any case whose circumstances are not readily distinguishable from the circumstances in those two decisions, notwithstanding that they contain no binding ratio decidendi.

May I make these submissions about your Honour's approach in that case. Your Honour was there confronted with a choice to be made. One choice was this: to follow two earlier decisions of this Court which your Honour thought were clearly erroneous, thereby exposing tens of thousands of Australian citizens, members of the defence forces, to the risk of being tried for offences, including those as serious as murder - your Honour recalls section 61 picks up the ACT Criminal Code including murder - putting tens of thousands of Australian citizens at risk of being tried, including for the offence of murder, by institutions other than Chapter III Courts. There was one of your Honour's alternatives. The other, of course, was to follow the decisions and your Honour choose to follow the decisions.

In the present case, for reasons which I want to develop, no such choice confronts this Court. But if the view should be taken by members of the Court that they are confronted with such a choice, because they conceive that Theophanous and Stephens are clearly erroneous, one may ask oneself, well, what then are the two alternatives. In my submission, one alternative obviously is to follow the cases. The other amounts, in my submission, to no more than this, to exposing a few hundred Australians, namely, members of the Commonwealth and State Parliaments, because it will be my submission on a proper reading of Theophanous and Stephens, they create a defence only as against members of Commonwealth and State Parliaments - - -

GUMMOW J: Is that right though? Looking at 119 of 182 CLR, more precisely looking at page 208.

MR KATZ: Would your Honour just excuse me for a moment while I find - - -

GUMMOW J: Yes, of course. I have been puzzled about this. It is not the fault of anybody other than the draftsman of the original pleading, I am afraid.

MR KATZ: Your Honour is taking me to the answers - - -

GUMMOW J: Yes, 182 CLR 208, question 1. Are they disjunctive or conjunctive or some other combination?

MR KATZ: I regret to say some other combination.

GUMMOW J: You seem to be treating them as conjunctive; as operating in a combination.

MR KATZ: Your Honour, my submission will be, when I come to it, that one, for the reasons which I have given, treats the joint reasons for judgment in Theophanous as part of a ratio because of what happened in Stephens' Case. When one examines the joint reasons for judgment, one discovers a plain intention on the part of the members of the plurality judgment to create a defence which was available only as against, in Theophanous's Case, members of the Commonwealth Parliament and in Stephens' Case, members of a State Parliament, with one possible extension which their Honours said it was unnecessary to consider for the purposes of the case, namely, candidates for election to parliamentary office.

GUMMOW J: That would be 1(c), would it not, what you last mentioned?

MR KATZ: No, your Honour. I must go to the reasons in Theophanous.

GUMMOW J: I am not worried about the reasons; I am just worried about the order at the moment because that may be all one has to cling onto and, if one is clinging onto the orders, how does one construe them? I think you are saying that (a) is absorbed with (b) but that (c) may have some separate and unnecessary, as you have just been saying, life. I am not sure.

MR KATZ: I was not in fact saying that. As I would read them, your Honour, if one reads (a) and (b) together and (a) and (c) together, those are the alternatives. One must have (a) and either (b) or (c). It is for that reason that I said the matter was partly conjunctive and partly disjunctive.

GUMMOW J: I understand what you are saying.

MR KATZ: But the point which I was seeking to make was that I was comparing the possible consequences in Foley's Case with the possible consequences in this case. My submission is that Theophanous and Stephens, if wrongly decided, have relatively minor consequences compared to the possible consequences flowing, for instance, from the military justice cases. We are not speaking of thousands upon thousands of people at risk of serious imprisonment for substantial criminal offences as we are here. In my submission, what we are really speaking about is a question of some hundreds of parliamentarians having to fund their swimming pools in other ways than by means of the media proprietors.

BRENNAN CJ: That is one way of putting it all, Mr Solicitor, but it is not very helpful, is it? If we are thinking about results in terms of what this Court should do - and I am not sure that that is any relevant consideration - but, if we were thinking of results, then it would be a question of the effect of these cases upon the whole of the political dynamic, including those who might be minded to stand for elections, those who might be minded not to stand for elections.

MR KATZ: Yes. My submission is that the effect of them is confined to that relatively narrow class of persons, those who are members, those who are candidates possibly. Their Honours in the plurality judgment expressed that as a possibility without expressing a concluded view on the matter and acknowledged that no occasion arose to consider that question.

KIRBY J: I do not quite understand this. Is this a sort of utilitarian argument, that if we are weighing up 300 politicians in the whole people of Australia, that you ignore the one because they are few of them. That does not seem a very principled way to approach the construction of the Constitution.

MR KATZ: Indeed, your Honour. I do not myself urge it. I was seeking to contrast the constraints which his Honour Justice McHugh felt himself under in the first case, with the constraints under which he might feel himself or another Justice might feel himself or herself in this case. In so far as it was a significant matter in Foley to consider the possible consequences, it is likewise here.

The question of consequences is a matter which was developed both by the learned Solicitor-General for Victoria and my learned friend, Mr Reynolds. In each case they urged on your Honours that it was not possible to confine the effects of Theophanous and Stephens only to the area of defamation law and, in my submission, their submissions on that aspect of the matter were most unpersuasive. Theophanous and Stephens have now been extant for some two and a half years. Between them Mr Graham and Mr Reynolds were able to point to one decision of a single judge of the Supreme Court of New South Wales in which it appears that there was some attempt to find use for Theophanous and Stephens in an area outside defamation and, as I understand the position, that decision was afterwards appealed to the New South Wales Court of Appeal in which the case was resolved without any reference to Theophanous and Stephens whatever.

GUMMOW J: But it would have an effect on the law of copyright, would it not?

KIRBY J: And it certainly has been put to me in the area of contempt, not in the case of Ho that was mentioned, and we have got the judgment from Justice McPherson which shows that it has been tried there.

MR KATZ: Yes. Of course, what happened was that Theophanous and Stephens did not have the effect of invalidating the Queensland law in the Brisbane Television Case, so that one can hardly point to that decision as one which expands the consequences of these decisions beyond the area of defamation.

GUMMOW J: But if one were deciding The Commonwealth v John Fairfax again, would it not produce a different result perhaps?

MR KATZ: Your Honour, I cannot answer that question. I became aware of the case for the first time yesterday afternoon when my learned friend, Mr Reynolds, referred to its existence in a fleeting way.

GUMMOW J: A different result on the copyright, because they won on confidence because it had gone public, but on the copyright law.

KIRBY J: I think his Honour is referring to the earlier one, not the case of the - - -

MR KATZ: I am sorry, your Honour. You are referring to the case in volume 147?

GUMMOW J: Yes, Justice Mason's decision, yes, at first instance.

MR KATZ: Your Honour, I do not know that I can answer that question.

GUMMOW J: There may be no self-evident answer, but I think it may be an area of - - -

MR KATZ: But if one is concerned about the disruption which is said to be in the course of occurring by reason of the decisions - - -

GUMMOW J: It just may be partly the result of a legal unsophistication of some of the people involved in these advising activities. There is the law of confidential information. There is the law of copyright just as well as the law of defamation. They can all sometimes be called into play in a particular factual matrix.

MR KATZ: My point is only this, that those who wish to attack the correctness of these decisions have not been able to point to judicial decisions, with the possible exception of some apparent passing significance at trial level in a case in the New South Wales Supreme Court, where the significance appears to have dissipated by the time of the Court of Appeal. That is the one occasion to which they point in the development of the law. That is the only submission which I make presently about that aspect.

GUMMOW J: There is a case about contempt, is there not? Is there not at least one case in the New South Wales Court of Appeal about contempt? They were referred to me in Marsden's Case in an application to - - -

MR KATZ: Your Honour, I cannot assist. I know of no such case.

KIRBY J: It certainly was raised, but I think rejected in the court. But I think the point that Mr Reynolds was advancing was a different one. It was that once you let loose this idea, then it is difficult, conceptually, to contain it, and that it is not stable and cannot be contained to the genus of defamation law.

MR KATZ: Well, of course, he may make such submission. But one matter, in my submission, to consider is that in a two and a half year period one points to only one decision which is said in some way to have been affected - that is to say, one decision outside the defamation area. That is the only point which I make. And, in so far as your Honour Justice Kirby refers to reliance on those decisions in the context of contempt and says that the submission was rejected, that, in my submission, reinforces the point which I seek to make about the terribly disruptive consequences for the law generally of these decisions, should they continue to be maintained.

BRENNAN CJ: But is this not an intellectual, rather than a statistical exercise that we must engage in? Are we going to say here is a case where there has been two instances where it has been applied, or four, or 10; or, are we going to say here is the problem that this gives rise to? What is the scope of the principle, and what are its implications?

MR KATZ: Your Honour, I seek, by the submissions which I have just been making, merely to meet on their own terms the submissions which have been made against the position which I maintain about, in effect, the flood gates. If the flood gates - - -

BRENNAN CJ: I understand what you say, but I do not understand it to be on their own terms. Because what I understood the terms to be was that this raised a question of principle which might inform a variety of situations, and might affect the general content of areas of law thus far undreamed of, or perhaps more accurately, thus far not considered by counsel in their chambers.

MR KATZ: I suppose I may simply answer that by saying the proof of the pudding is in the eating. To put it a different way, if your Honours are being asked to rush to close the floodgates, presently it appears that you may do so at a very leisurely stroll, given what has been put before your Honours on that aspect of the matter.

May I come to the question which, in effect, your Honour the Chief Justice was raising with me, and that is the question of the proper approach when a question of reconsideration of an earlier decision arises. Your Honours have of course discussed this question on many occasions, both in the context of earlier constitutional decisions and in the context of earlier non-constitutional decisions, and sometimes differing views have been expressed depending on whether or not the earlier decision which is under attack is constitutional in nature or not. But, on two occasions to which I specifically direct your Honours' attention, members of this Court were discussing the question of reconsideration in the context of constitutional matters.

I am sorry, I should have said to your Honours that there is a submission which was filed on behalf of my client, I think on 20 February. This was a submission which I hope I understood correctly your Honour the Chief Justice was inviting me to make at the directions hearing earlier in February. That submission your Honour asked me to make specifically in the context of the question of whether or not the balance of the matters in Levy ought be ventilated in the course of this hearing. I make the submissions in that document as equally applicable to Lange's Case and to all aspects of Levy's Case, and in that document in paragraph 2, in particular, I have referred to two occasions upon which Justices of this Court have discussed the question of the proper approach to reconsideration of earlier constitutional decisions. I need not ask your Honours to go to the reports. The bits upon which I rely are set out in paragraph 2 of my submission.

Justice Kitto, in Hughes and Vale [No. 1] spoke of necessity for grave reasons to reconsider constitutional cases. More sharply focused from my point of view, his Honour Justice Jacobs in the H.C. Sleigh Case spoke of an unwillingness on the part of the Court to reconsider an earlier constitutional decision unless circumstances compelled such a review. I would urge on your Honours the adoption of the approach taken by his Honour Justice Jacobs in the H.C. Sleigh Case, that is, your Honours should take the view that reconsideration is not appropriate unless circumstances compel such reconsideration.

The reasons in forming such an approach - that is, one in which circumstances compel reconsideration - are numerous. One is, as I mention at the top of the second page of the document, a need for continuity and coherence in the law. I acknowledge immediately that the quotation which appears at the top of the second page of the document is a quotation from a case in which it was not an earlier constitutional decision which was under challenge. May I put it in this way, that it was an earlier decision, the constitutional aspect of which was not under challenge but merely the non-constitutional aspect but, in my submission, the values of continuity and coherence in the law are equally significant in the area of constitutional law.

If this Court were to treat itself as free to reconsider earlier constitutional decisions when that was not something which was compelled by the circumstances of the case, then, in my submission, there would be an erosion of public confidence in the Court as an institution. As I have submitted on the second page of the document, the view might even be advanced that if your Honours were to reconsider an earlier constitutional decision in circumstances which did not compel such a reconsideration, that would amount to a usurpation by this Court of the power conferred on the Parliament and the electors of the Commonwealth by section 128 of the Commonwealth Constitution.

Obviously an earlier decision of this Court on a question involving the Commonwealth Constitution is capable of being overcome, if I may put it that way, in two different ways. One, by overruling by this Court and one by an amendment of the Constitution.

GUMMOW J: How do you say the Engineers' Case was compelled to treat the earlier cases on implied immunity and so on? What was compelling in 1920?

MR KATZ: What as compelling was that if the earlier doctrines - I am sorry, may I put the matter in this way? Circumstances compel reconsideration when, if the earlier decision is correct, the party who relies on it will succeed. It is in that sense, for present purposes at least, that I rely on the notion of compulsion and seek to establish the absence of any compulsion to reconsider the earlier cases in these two cases. My submission is that in Levy's Case, the party relying on the earlier decisions is Levy. Levy will fail even though those two cases be correctly decided. Therefore, circumstances do not compel a review in Levy's Case.

Likewise, in Lange's Case, the submission is that the ABC relies on the earlier cases. Assume in its favour that those cases are correct, nonetheless, it will fail. Therefore, there is no circumstance which compels reconsideration.

GUMMOW J: Why will it fail?

MR KATZ: In the case of the ABC?

GUMMOW J: Yes.

MR KATZ: For two reasons. In the alternative, one is a matter which I have to develop, namely, that, in my submission, on a proper construction of Theophanous and Stephens, the reasons support only the creation of a defence as against Australian parliamentarians, and Mr Lange is not an Australian parliamentarian.

GUMMOW J: You flag that, I think.

MR KATZ: Yes. Alternatively - - -

McHUGH J: The media will be very disappointed to hear the defence is so limited.

MR KATZ: That may be, your Honour.

GUMMOW J: What is the second reason?

MR KATZ: I am not here to appear for the media. The second and alternative proposition is this, that as a matter of authority, those cases stand for the proposition that a defence is available only in cases where the subject matter of the publication is Australian political discussion and the subject matter of the publication - - -

GUMMOW J: Not political discussion in Australia.

MR KATZ: No, I do not seek to confine it in that way, but as a matter of authority flowing from the first duet of cases, Nationwide News and ACTV and then flowing through to Theophanous and to Stephens, the authority of this Court stands for the proposition that the defence is available only in cases where the publication concerns Australian political discussion, and that is not so in Mr Lange's case. So I put forward those two bases in the alternative as to why the ABC would fail, assuming the correctness of Theophanous and Stephens, and the reason from that to an absence of circumstances which compel review.

GUMMOW J: Yes, thank you.

MR KATZ: As to Levy's Case, I make - I do not know whether your Honour wants me to develop those now. Perhaps I will save those until later, but your Honour asked me about the Lange position, and that is the position which I adopt. It may actually be convenient, I suppose, if I go directly now to what I have to say about those two matters which I have raised in connection with Lange's Case. May I deal then first of all with the question of the applicability of the defence in Theophanous and Stephens, those persons against whom it is to be applicable.

If your Honours would go to page 133 in Theophanous' Case under the heading, "The criteria to determine whether publication of political matter is non-actionable". Their Honours set for themselves the question immediately:

What then are the criteria to be applied in determining whether a publication which discusses political matters and is defamatory of the plaintiff is nonetheless not actionable?

May I pause here to flag the reference to the fact that the publication concerned must be one which discusses political matters. So that it is plain that their Honours are taking the view that the mere fact that the publication concerns a political matter is not sufficient to make it non-actionable. It is that which, in my submission, makes perfectly plain that one cannot read the answer 1(a) in a disjunctive fashion. Their Honours are specifically asking themselves: what more needs there be beyond 1(a)?

Their Honours' discussion, beginning at page 133 and running through to, in effect, point 8 on page 138, proceeds entirely against the backdrop of what their Honours had earlier called the "celebrated case of New York Times v Sullivan". The discussion proceeds on this basis: "What about the dissent in New York Times v Sullivan; is that in some way mandated by the Australian constitutional requirement?". "No, it isn't". "Well, what about the majority view in New York Times v Sullivan?". "Oh, there are various criticisms of that. Therefore, we do not adopt New York Times v Sullivan".

As their Honours say at some point, at the top of page 138 they refer to their "departures from Sullivan". Their Honours adopt a test of non-actionability which plays off against New York Times v Sullivan but alters it. New York Times v Sullivan, your Honours will recall, was a case in which the plaintiff was an elected official. New York Times v Sullivan was itself authority for the existence of a defence in defamation matters only in respect of elected government officials. By incremental development of American constitutional law, the Supreme Court moved beyond the question of the existence of a defence as against elected officials.

McHUGH J: I think to describe it as "incremental" is not quite accurate. It was a quantum leap designed to overcome the very serious social problem in which southern juries were awarding huge sums of damages against anybody who criticised the civil rights movement.

MR KATZ: Yes, but my point is - - -

GUMMOW J: The elected officials being elected on something less than a full franchise.

MR KATZ: Yes.

McHUGH J: The elected official in that case being a Commissioner of Police. It was not a parliamentarian.

MR KATZ: No, he was a local official. I think he was described as a city commissioner. I apprehend that his functions extended beyond policing. In any event, my point is that the defence, as first created in America, dealt with elected officials, then there was an extension beyond that. This is all dealt with, I may say, your Honours, in the text accompanying the footnotes on page 134 in the joint reasons. The next development was it extended to candidates for elective office, and the very case mentioned in footnote 3 on page 134 dealt with a person who was a candidate for election to the United States Senate.

Then the next expansion of the defence dealt with high government officials, and that is the case which is dealt with in footnote 4 on page 134. Then, ultimately, the position was reached that a person need not be an elected official, need not be a candidate for elective office, need not be a high government official, but need only be a public figure and the defence was available as against that person. So that my recollection is that the case mentioned in footnote 5, I think, may have involved a football coach, a well-known football coach. Then, ultimately, we reached the position where the defence is available against persons like O.J. Simpson, say. My point is that New York Times v Sullivan itself began as a case involving an elected official.

May I go to page 133. At page 133, under the heading "The criteria", and after the question, their Honours begin by discussing the dissent in Sullivan's Case, that is the position of his Honour Justice Black, who took a position analogous to that taken by Justice Deane in Theophanous, and their Honours reject that possible approach, over on to the top of 134. Then the first complete paragraph on 134 their Honours begin by discussing what they describe as:

The case for adopting the Sullivan test -

That is dealt with for perhaps 10 or 12 lines, and then in the midst of that paragraph begin the various criticisms to be made of the Sullivan test. Their Honours first set out what they describe as - - -

BRENNAN CJ: Mr Solicitor, I do not want to interrupt you but time is running against you and we can read these judgments if we have not read them, as we all have, for ourselves.

MR KATZ: I accept that, your Honour, but if your Honour would allow me I must direct specific attention to the balance of page 134, which is crucial - - -

BRENNAN CJ: I am only anxious for your own time.

MR KATZ: Yes, I understand that, your Honour, but it is essential to my submission that this passage be analysed. I have drawn attention to the reference to the principal criticism of the test, then there is a further criticism of the test, and then in the next complete paragraph are two further grounds upon which the Sullivan test has been criticised. The first relates to these various extensions to which I have been referring, and then your Honour's note, about four lines up from the end of that paragraph, their Honours say this:

Although there is no occasion now to consider their possible application in Australia -

that is to say the extensions beyond a defence available as against elected officials -

we should indicate our preliminary view that these extensions, other than the extension to cover candidates for public office, should not form part of our law.

What, in my submission, their Honours were there doing was anticipating what they ultimately described as their own test, which was a departure from Sullivan, and describing those persons in respect of whom that defence would be available. In the context of Theophanous it was restricted to, on the facts, a Commonwealth parliamentarian and so, as their Honours say, there is no occasion to consider any possible extension beyond that in this case, but we say now that our provisional view is that we would extend it to candidates for election to the Commonwealth Parliament but deny that it should be extended, for instance, to high government officials or to public figures and, in my submission, that is a plain indication that their Honours intended that the test which they ultimately adopted be applied in that way only. May I say that that is plainly the way in which his Honour Justice Deane also understood the plurality judgment as appears from his addendum because in his addendum at 187 and 188 he mentions that the plurality reasons would:

precludes the application of State defamation laws to impose liability in damages for the publication of a statement about the official conduct or suitability of a member of the Parliament only if -

certain matters were satisfied and then his Honour says:

For the reasons which I have given, I am quite unable to accept that the freedom which the constitutional implication protects is, at least in relation to statements about the official conduct or consequent suitability for office of holders of high government office -

so that his Honour took a broader view of the matter -

conditioned upon the -

additional qualifications which their Honours held to be appropriate. So, in my submission, it is proper to understand Theophanous as restricted to the case of Commonwealth parliamentarians, Stephens restricted to the case of State parliamentarians, a possible extension flagged to candidates for office, presumably both the Commonwealth and State Parliaments, and no further and, in my submission, that must necessarily render the defence inapplicable as against Mr Lange, who falls into neither the accepted categories nor the potential category.

I may say that I have on examination of the academic literature found a relatively recent article which rather gives the game away in its title. It is called "Defamation, The Constitutional Public Officer Defence" and it appears in 1996 volume 4 of the Tort Law Review beginning at page 27. The author there analyses the effect of Theophanous and Stephens in the way in which I have done, treating them as intentionally restricted to cases involving parliamentarians, potentially extending to candidates.

McHUGH J: But if you are right, then the practical effect of Theophanous is very narrow indeed. It does not give the media anywhere near the protection which they apparently claim it does. Is not that a reason why, if the Court came to the view it was wrongly decided, it ought to be overruled?

MR KATZ: Your Honour, dealing with Lange now, your Honour is faced with a case in which the plaintiff does not fall into any of the categories. It therefore follows that the defence is not available in the circumstances. It therefore follows that there is no necessity whatever to reconsider the correctness of the cases. The ABC relies on the correctness of the cases. They do not help it. Circumstances do not compel a review. I accept that if the ABC could make out its constitutional defence on a proper interpretation of Theophanous and Stephens, then the question would truly arise as to whether or not the decisions were correct. But if I be correct in my submission about the plaintiffs against whom the defence is available, then this is not one of those cases that his Honour Justice Jacobs was talking about in which circumstances compel a review.

McHUGH J: I appreciate the force of that and on that view one can simply decide the case by saying that on any view Theophanous does not cover it. But if Theophanous is wrong, wrongly decided, and does involve a departure from fundamental principles of interpretation, then perhaps the sooner it is overruled, the better.

KIRBY J: The other point of view would be it deals with such a small category that we should hardly be tarrying over it.

MR KATZ: If what your Honour Justice McHugh said were true, then all of the earlier statements in this Court about the need for grave caution in cases where an application has been made to review a constitutional decision would not be serious. They would be shams.

McHUGH J: No, I am not in any way criticising or seeking to undermine those cases. I injected into what I put to you the proposition that this case involves a serious departure from the principles of constitutional interpretation.

MR KATZ: Your Honour, may I ask these questions, I hasten to say entirely rhetorically. If the Court or a majority of the Court were of a view that one of its earlier decisions were wrongly decided, could it issue a press release saying so? The idea would be absurd. Could it alternatively take the opportunity when it had a case before it, say a contracts case, to say at the end of the reasons, "Oh, and by the way, an earlier decision is wrong and it is hereby overruled". It is of the essence of - - -

McHUGH J: But judges do it all the time. In fact, Lord Devlin said in one of his articles published in "The Judge" that overruling of cases never comes out of the blue, or changes in the law never come out of the blue - not overruling; changes in the law never come out of the blue. There is always signs of what may happen. We are frequently taught to say, "Well, we think this decision may be wrong or it doesn't apply in this particular case".

MR KATZ: Your Honour may, of course, say in reasons - and, indeed, your Honour has said - - -

McHUGH J: Yes, I said it in McGinty.

MR KATZ: - - - in reasons that your Honour's view is that a case has been wrongly decided, but that is an entirely different matter, in my submission, than taking the opportunity to overrule a case which your Honour thinks was wrongly decided when circumstances do not justify the taking of that course. And, in my submission, circumstances do not justify the taking of that course - which is acknowledged on all sides to be a very serious course for a number of reasons - when there is a perfectly acceptable alternative method of resolving the case. I am not able to point to any particular decision of your Honour's, but your Honour must, on earlier occasions, yourself have said, "Question A is not necessary to be decided in this case because of my view as to question B."

McHUGH J: You can be sure of one thing, Mr Katz. I will be following the approach in Tyler's Case, but where that leads is - - -

MR KATZ: Yes. I have made my submission about that. The second point I wanted to make about - I am conscious of the time, your Honour. I believe I have perhaps five minutes more.

BRENNAN CJ: Yes.

GUMMOW J: Before you sit down, Mr Katz, what do you say about expanded qualified privilege in paragraph 11 of your submissions? You say you adopt the Commonwealth's submissions, but the Attorney, through the Solicitor, rather - "resiled" is not quite the word, but - - -

MR KATZ: I adhere to what was said in paragraph 11 of my submissions, with the qualifications now made by the learned Solicitor-General for the Commonwealth.

GUMMOW J: But what do you say is the effect of those qualifications? What is put in those submissions of the Commonwealth is a whole theory of common law privilege, which would be enormously important if one were to embark on it.

MR KATZ: Your Honour, I have no submission to make about that aspect of the matter. I have sought to confine that which I said orally - and I have husbanded my time very badly - only to the respects in which, in my submission, these cases are not appropriate vehicles for reconsideration, and I do not seek to add anything to what I - - -

GUMMOW J: But you do not withdraw paragraph 11? You are trying to have it both ways.

MR KATZ: If your Honour is of the view that it is necessary for me to do so in order to be consistent, I hereby withdraw paragraph 11.

GUMMOW J: Well, it is for you to decide what you are doing.

MR KATZ: Yes, I withdraw paragraph 11. The second point that I wish to make about the ABC's reliance on Theophanous and Stephens is what I call, or what has been called, the indivisibility point. I have not any time beyond giving your Honours these page references about various discussions of the indivisibility point; that is to say, that there is an inextricable association of political matters of various different types. Could I just very quickly give your Honours these references, and then make a very short submission.

First of all, Nationwide News v Wills, Justices Deane and Toohey, pages 75 and 76. There was expressed a tentative view as to indivisibility, which did not arise in the circumstances of Nationwide because it was a law relating to discussion about a federal institution. Secondly, Australian Capital Television, Chief Justice Mason, page 142, Justices Deane and Toohey, pages 168 and 169, Justice Gaudron, pages 215 to 217. In ACTV, there was a majority of the Court in favour of the indivisibility doctrine, and that was a necessary step in the reasoning of their Honours for this reason; that they were there concerned with a federal law which sough to prohibit discussion about matters which might properly be described as State matters, and it was the indivisibility of Australian political discussion which led them to conclude that the federal law was bad in so far as it impacted on State discussion as well.

Then in Theophanous the plurality reasons at pages 122 and 123 and Justice Deane at page 164, but what was said in Theophanous was obiter as was acknowledged at page 123 because there one had a federal parliamentarian and a discussion about his suitability for office, and the subject matter of the communication was immigration matters, so there was not any question of intermixing, and then, Stephens' Case, at page 232 at which ACTV was followed.

If your Honours examine the relevant passages, all of the discussions proceed on the basis that there is an indivisibility between federal political subject matters on the one hand and State political subject matters on the other. The reasons which are given are in every case dependent upon the Australian federal system, matters which simply do not permit as a matter of authority, an extension of the notion of discussion about political matters beyond Australian political matters.

May I turn now to Levy's Case? Your Honours have a submission of mine from long ago now, it seems. Would your Honour wish me to conclude now?

BRENNAN CJ: Another five minutes, Mr Katz.

MR KATZ: Thank you, your Honour. Your Honours have a submission from me dated 1 August 1996 in connection with Levy which sought to make two points. I will not seek to develop the points in that document but there is at least one matter that I must raise with your Honours.

I had, at the outset, my learned friend, Mr Castan's submissions, described as "Comprehensive outline of submissions on behalf of the plaintiff". They, it appears to me now, are undated. It was a 25-page document together with substantial appendices, and my learned friend, Mr Castan, dealt on the assumption that there was a limitation on Victorian legislative power equivalent to the limitation on Commonwealth legislative power developed in Nationwide News and ACTV, dealt with the question of the proportionality of the Victorian regulation. He also, at page 25, had a heading in paragraph 73 called "Targeting the idea or message". It was by reason of my learned friend's submission to the effect that the Victorian regulations targeted the idea or the message that I made the submissions which appear in paragraphs 2 to 7 of my written document. The burden of my song was that the purpose of the Victorian regulation was expressly stated in it. It was to promote human safety, and it was not open to my learned friend, Mr Castan, to make a submission to the effect that the regulation targeted Mr Levy's idea or message. That was a suggestion of a purpose on the part of the governor - - -

KIRBY J: That sounds like a theory that was rejected in the Communist Party Case, that simply because of what you say in the preamble or a title to an Act or somewhere else, that the Court cannot look objectively at what was the purpose. I think courts reserve to themselves that right. Just because the regulation says it is this sort of thing it does not mean it is.

MR KATZ: Your Honour, my submission, old fashioned as it was, was Mr Castan put on a statement of claim. He made no allegation that the statement of purpose was false - and in the circumstances, of course, it had to be deliberately false. One could hardly be mistaken about one's own intention. He made no allegation in his statement of claim, expressly or impliedly, that the statement of purpose was false. I thought it necessary to deal with that aspect of the matter by reason of his submission called, "Targeting the idea or the message". At page 3 in the transcript of 6 August, at the bottom, your Honour asked Mr Castan the question - we were only about 30 seconds into the case:

Does this imply that you -

Mr Castan -

are suggesting that the true purpose of the regulation was to prevent this expression and demonstration and to that extent you challenge the assertion that its purpose was for the safety of the public?

Mr Castan's answer:

We do not challenge the assertion, because the challenge of the assertion is something that itself may - perhaps I do not need to go into that. We do not challenge the assertion, but we say whether that be the purpose or no, the effect of the regulation is to, in fact, stifle the effective communication of what is the really dramatic way of demonstrating what is wrong with this particular practice -

So, my learned friend, Mr Castan, in answer to a direct question from your Honour, expressly eschewed any suggestion that the statement of purpose was false.

Now, we have received from my learned friend a document, "Comprehensive Summary of Contentions on All Issues on Behalf of the Plaintiff Levy 26 February 1977", page 8, paragraph 18 we are back to the suggestion that the regulation targets the very idea or message which the protest of the plaintiff and his supporters seeks to communicate. Your Honour, I do not know where I am with respect to the submission which I make in paragraphs 2 to 7.

In the circumstances, I must press the submission, it appears to me, because Mr Castan now appears to have resiled from what he told your Honour. I urge the portion of my submissions in paragraphs 2 to 7 on your Honours and its effect is that it is not open to Mr Castan in these proceedings to assert that the purpose for which the regulations were made was something other than the expressed purpose.

The balance of the submissions, which obviously I can make no reference to orally, was an attempt to deal with some American authorities which Mr Castan relied on which, in my submission, had nothing whatever to do with the American approach to the issue which was presently before the Court. I have noticed that in his new document, Mr Castan returns to the attack with further irrelevant American cases, but I have not any time to deal with those. If your Honours please, those are my submissions.

BRENNAN CJ: Thank you, Mr Katz. Mr Spigelman.

MR SPIGELMAN: Your Honours, there are three main lines of argument and a number of subsidiary ones which we would wish to develop. First is whether or not Theophanous is right in extending the freedom found in the earlier cases to shaping the common law. Second, what is the ratio of Theophanous and the third, what is the basis of the implied freedom. They are the main lines I would wish to develop in oral argument. There will be other matters relating to the application of the principles to New Zealand politicians and also the question of leave to overrule.

Could I, at the outset, just give a conspectus of some basic propositions which we will seek to submit to the Court before I come to a more detailed exposition of them? The central step that was taken in Theophanous beyond the earlier cases was the application to the general law. The earlier cases dealt with the implied freedom as a restriction on legislative power. That was a dramatic step and a significant step. It is constructed throughout the reasons for decision, but could I just take your Honours to the most pithy one sentence statement of the reasoning as to why that step needed to be taken, and it is at page 130 of 182 CLR, it is the last paragraph at about point 8 of that page:

To our minds, it is incontrovertible that an implication of freedom of communication, the purpose of which is to ensure the efficacy of representative democracy, must -

and I direct attention to the word "must" with respect to my learned friend Mr Reynolds' submission, that no test of necessity was applied -

extend to protect political discussion from exposure to onerous criminal and civil liability if the implication is to be effective in achieving its purpose.

For those of your Honours who emphasise that the Constitution is subject to the principles of statutory interpretation, the reference to "purpose" there is, of course, perfectly in accord with contemporary principles of statutory construction, principles that may be different from those which prevailed at the time of the Engineers' Case.

DAWSON J: But you have got to say what the implication is and where you get it from first before you can talk about purpose.

MR SPIGELMAN: Yes, your Honour. That was the third matter that I propose to deal in a summary way but, perhaps, the first matter that I will deal with in full. I suspect that may not be until the morning.

BRENNAN CJ: Mr Spigelman, can I just interrupt you for a moment. Looking at the timetable I see that in the summaries your time was limited to three hours instead of four. This is not an invitation to you to take four hours but it seems, in equity, you ought to have your four hours if you so desire it.

MR SPIGELMAN: It is what I thought at the time. I will endeavour not to, but thank you, your Honour, for the indulgence, if I need it.

The central argument in Theophanous and Stephens, we believe, can be reduced to a syllogism, perhaps a series of syllogisms, to reflect the varying tests propounded by different members of the Court. The majority in Theophanous, in the joint judgment particularly but, we believe, also Justice Deane, would have started off with a major premise of the following character. A freedom which is essential for the integrity and efficacy of the system of government for which the Constitution provides is intended to be effective. Then the next step, the freedom of communication can be rendered ineffective by a legally enforceable rule whether that is a rule of the common law or of a State or of a State legislation or Commonwealth legislation. The conclusion, accordingly, is that all such laws which have such an operation are impermissible or superseded to the extent of the inconsistency with the implied freedom.

BRENNAN CJ: What is the "such an operation"?

MR SPIGELMAN: The operation being rendering ineffective the freedom of communication. That second and third step can be tacked on to other major premises. To use your Honour's the Chief Justice's formulation in Theophanous at pages 149 to 150, the major premise could be a freedom which is essential for the people of the Commonwealth to form and exercise the political judgments required for the exercise of their constitutional functions is intended to be effective. And the second and third steps would be as before.

GUMMOW J: What was the third step again, Mr Spigelman?

MR SPIGELMAN: The second step was that that freedom can be rendered ineffective by any one of the three forms of law and the final step is that all such laws which have such an operation, and you are rendering it ineffective, are impermissible or superseded to the extent of inconsistency with the implied freedom.

McHUGH J: Now, does that not stack the deck in favour of your argument - - -

MR SPIGELMAN: That was its intention, your Honour.

McHUGH J: When you started your major premise of a freedom that is essential - - -

MR SPIGELMAN: Perhaps I could give your Honour your Honour's own version of a major premise, I will come to that in a moment, because I was going through each of the forms. I started off with a form of major premise which was consistent with the majority in Theophanous, not your Honour's.

DAWSON J: I do not want to delay you from doing that but, really, you are using a lot of words to say this, are you not, that if there is a freedom, which is a constitutional freedom, that is has constitutional force, anything that is inconsistent with it must go. It is a law of the Commonwealth and a constitutional law.

MR SPIGELMAN: That is so.

DAWSON J: Well, I mean, no one is going to dispute that.

MR SPIGELMAN: I believe some do, your Honour.

DAWSON J: I,for my part, do not.

MR SPIGELMAN: If your Honour pleases. May I just formulate the major premises in the two other ways. From your Honour Justice Gummow in McGinty 70 ALJR 272, deleting a reference to the restriction to legislation, your Honour's major premise would be a freedom from impediment of electors "from informing themselves and in receiving information and comment upon matters of political interest" is intended to be effective and, finally, your Honours, I think both Justices Dawson and McHugh, a freedom which is essential to ensure a genuine choice of representatives by electors is intended to be effective. Justice Dawson has used "genuine choice" and "informed choice".

DAWSON J: It is not that it is intended to be effective. It is that it is the law. That is the constitutional requirement.

MR SPIGELMAN: Yes, your Honour. I need to establish how it is, however, that that operates to affect the common law and not simply legislative.

DAWSON J: In so far as the Constitution is inconsistent with the common law, the Constitution prevails, just as it prevails over any inconsistent statute.

MR SPIGELMAN: If your Honours please, that is our basic submission and the syllogisms I have advanced are intended to reflect that.

DAWSON J: There is nothing new in that.

McHUGH J: But what I was going to put to you is that you inject the term "freedom" in, freedom of communication. Now, if you go back to ACTV, the Chief Justice starts, first of all, with an implication of representative government and then he says two things from that. He says that implies accountability by the representatives and a capacity to communicate with them - I am sorry, he says accountability and responsibility, and then he says you imply from the fact that the representatives are accountable and responsible that there must be a freedom to communicate with them and - - -

MR SPIGELMAN: As his Honour says, at least in relation to public affairs and political discussion.

McHUGH J: Yes.

MR SPIGELMAN: Your Honour also used the word, "freedom".

McHUGH J: I may have.

MR SPIGELMAN: As did each of the other Judges.

McHUGH J: But one is going down the line building implication upon implication. Why is not the correct approach the one that I put to the Solicitor-General earlier today, namely, that to give effect to the implication of representative government - if you want to make that implication, which I would not - is there also a necessary implication in the Constitution that persons making statements about political matters should be free of liability for publication of defamatory statements, and if so, upon what conditions? Do you accept that as the correct approach?

MR SPIGELMAN: Your Honour, I am sorry, I must not have heard correctly. The implication in the Constitution is that which is in the answer to the first question in Theophanous. That is the implication for which we contend. We do not contend for an implication which makes direct reference in the manner your Honour has put to the laws of defamation or any other laws, nor does the answer to question 2 in Theophanous do so, notwithstanding that many submissions to this Court have been premised on the proposition that it does. I will come to that in a moment.

McHUGH J: I appreciate that, but that is part of the problem. It is very easy then to really get into a political debate or a political science debate when you are talking about vague abstractions, freedom of speech, representative government.

DAWSON J: Let me give you an example. Most other countries have some form of restriction on political advertising. Israel, for instance, have form very similar to the Act which was declared invalid here. Britain has one. Would you say that because of that, on the principles which you espouse, that neither of those are any longer representative democracies.

MR SPIGELMAN: Your Honour has indicated that there are different forms of representative democracies. What the implications are from the form we have here is a matter for the this Court. This Court has determined it to some extent - - -

DAWSON J: Precisely. But applying the - now, that is evading the question. Would you say that if the legislation in those countries is sufficiently similar to the legislation here? They no longer have representative democracy.

MR SPIGELMAN: They may in accordance with a definition but not necessarily in accordance with what that principle means in the Australian Constitution.

DAWSON J: But what does it mean in the Australian Constitution and where do you draw it from?

MR SPIGELMAN: That was the third area which I promised to give - - -

DAWSON J: You see, what has been put to you, the only place you can draw it from is the Constitution itself, and that provides that the representatives shall be directly chosen by the people - no more, no less.

MR SPIGELMAN: Could we say this - - -

DAWSON J: And that says not one word about freedom of speech.

MR SPIGELMAN: If I could just leap ahead, your Honour. The principle that your Honour is referring to was felicitously referred to by Justice Gummow in McGinty as a question of implication at a secondary level, and I think that is what his Honour meant, that that implies representative democracy and then has an implication from that. A number of the judgments - - -

DAWSON J: Can I correct myself. When I said "not a word about freedom of speech", it does say so but only in the context of choosing representatives and what is necessary for that.

MR SPIGELMAN: Your Honour has indicated that the choice has to be an informed choice and your Honour has indicated some rigour in that respect. Although your Honour's test was perhaps the narrowest of any member of the Court, your Honour was the only member of the Court to strike down the legislation in Langer.

DAWSON J: Mr Spigelman, I am not sure that if you take the test which I posited, it does not go a great deal of the distance that the other test goes.

MR SPIGELMAN: If your Honour pleases.

DAWSON J: I do not know how far it goes because we have never had cases to test it, except perhaps the one you mentioned.

MR SPIGELMAN: If your Honour pleases, that was the purpose of my giving a major premise in accordance with your Honour's own reasons, albeit limited to genuine choice.

DAWSON J: You may not have answered Justice McHugh's question. I think I may have interrupted you. Perhaps he will repeat it for you because it would be hard to remember it.

MR SPIGELMAN: Perhaps I could just give your Honour a quick answer to what I was about to say as to how we put the question of free-standing right at issue. Our basic proposition is that that is not - the concept of free-standing right is not a correct interpretation of the majority judgement in Theophanous, and we will seek to make that good. Our second proposition is that Justices Deane and Toohey, in Nationwide News particularly, but also ACTV, did not adopt only an underlying doctrine approach, if I can call it that, they also adopted a text and structure approach and, accordingly, their judgment is authority for both approaches.

The next proposition is that even if one takes an underlying doctrine approach with an implication at the secondary level, there is nothing wrong with such an implication. That is for a reason which may be bound up with what your Honour has put several times about maybe we are dealing with construction rather than implication. Nevertheless, numerous members of the Court have referred to the principles in these line of cases as constituting an implication. If one implies a term into a contract, it is there. It is in the contract. It is available to be used for other sections of the contract to operate upon it.

It is available to be used for the proper construction of the contract. It then implies representative government - I know that may be why one construes it rather than implies it, I understand that, your Honour - it is there, and if - - -

DAWSON J: But the point is - - -

MR SPIGELMAN: If I just may be permitted to finish this sentence?

DAWSON J: Yes.

MR SPIGELMAN: If there is such an implication, then taking into account to find another implication is not a matter external to the Constitution within the Engineers' doctrine.

DAWSON J: The point is that there are hundreds of forms of representative government. Where do you find the one that you choose?

MR SPIGELMAN: If there is such an implication in the Constitution, there are as many forms of representative government as there are forms of freedom of trade for the purposes of section 92. The problem is the same kind of problem.

McHUGH J: But will you tell me why, as a matter of legal reasoning, do you use the term "representative government" instead of the words of the Constitution? Is it for any other reason, because it gives you a platform from which you can then use as a premise to draw out other conclusions which you cannot get out of the words of the Constitution themselves?

MR SPIGELMAN: If it is an implication - and that is an appropriate description of an implication - then it is there and has that consequence. May I say the words are - - -

McHUGH J: But is it an implication so much as a description of what is already contained in that - - -

MR SPIGELMAN: That is a different proposition and both are available, and we say that there are two ways - and there have been two ways - in which members of the Court have come to very similar conclusions. One is a text and structure approach - and I will seek to convince your Honours that the joint judgment of three in Theophanous adopted a text and structure approach of an orthodox character. However, there are other judgments in the Court that adopted the representative government and used it to create a secondary implication; that is true, they exist, and their Honours say that is what they are doing, particularly the two joint judgments of Justices Toohey and Deane.

Now, what we say is that we are happy, obviously, with either of them or, in particular, we are happy with both of them because they have led to the result for which we wish to maintain, but in terms of getting to that conclusion one can use a text and structure approach of an orthodox kind, applying contemporary principles of statutory construction of a purposive character, and one reaches a similar conclusion, not necessarily the same, but a similar conclusion, and one of the reasons why we say that both lines of cases, ACTV and Nationwide News as the first pair and then Theophanous and Stephens as the second pair, have ratios that are identifiable is because those members of the Court who adopted an approach to constitutional construction, which your Honour has rejected and as have other members of the Court, also adopted a text and structure approach and that is why you can add the judgments together. Now, may I say that I did promise that the second thing I would say briefly was to outline what we say is the ratio of Theophanous.

GUMMOW J: Just before you get into that, Mr Spigelman, and it is related to it. Are you at issue with Mr Katz as to the meaning of the answer to question 1 in Theophanous?

MR SPIGELMAN: Notwithstanding the fact that Mr Katz announced that he was intervening on my side, I think I am at issue with him on just about everything.

GUMMOW J: I thought that might be right. He says it is (a) plus (c) and (a) plus (b), but you say it is disjunctive, do you not?

MR SPIGELMAN: And I have abandoned the pleading of (b) and (c), your Honour will recall. I will deal with that, if I may, in a moment quickly because - could I take your Honours to the orders first at page 208.

The first one is that all four Judges agreed that (a), (b) and (c) were answers; the first one being discussing government and political matters. We say that that is a separate, and distinct, and alternative subject matter of the freedom. If one goes to the pleading - - -

GUMMOW J: I wonder why one needs (b) and (c) if one has (a). That is what mystifies - - -

MR SPIGELMAN: That is one of the reasons why one would interpret it that way. The matters were raised in the pleadings. (a) obviously does cover (b) and (c); and (b) and (c), themselves, overlap. If one goes to 119, as your Honour did earlier, where the paragraph is set out, there is 11(a), which sets out in (i), (ii) and (iii) the three options. Then there is (b), which says the publication was in accordance with that freedom. And it also sets out (i), and then (ii) and (iii) are broken up. (iv) is the equivalent of (a)(iii), and then some other defamation-type pleadings are made. But (c) says this:

By reason of each of the matter aforesaid -

each. Now, that is not possibly a construction of (a) and (b), that is each of the three matters. Now, it gets stronger. If one goes to the joint judgment at the foot of 121, point 9:

It follows therefore that the defendant's contention in par. 11(a)(i) -

your Honours see that. 11(a)(i) is what we now only rely on; namely, government and political matters -

is supported by the reasons given by five of the justices -

in Nationwide and ACTV. Then it goes on, under the subheading "The scope of the implied freedom", to raise little, what we call, (b) and (c); namely:

Whether that freedom extends -

we have got government and political matters:

Whether that freedom extends to the publication of matter concerning members of Parliament relating to the performance by such members of their parliamentary duties and their suitability for parliamentary office is the next question.

Now, there could not be a clearer statement that government and political matters, and the other two matters, are alternatives. They are described as separate questions.

Nothing occurs differently in the judgment of Justice Deane. Could I take your Honours to page 186, the final matter which concludes this aspect. If one looks at about point 9 Justice Deane is propounding his answer to the question. This is before the addendum. He says:

"The matters alleged in clauses (i), (ii), (iii) and (iv).....constitute a complete answer -

So he, even before the addendum, had incorporated government and political matters. There are other references in the judgment of Justice Deane to which I will refer tomorrow which indicate that he took a broad view of the constitutional freedom - until argument in this case, it has never been suggested he took a narrow one. He took a broad view and it was consistent with that view that the general government and political matters defence was available as an alternative to the other matters.

TOOHEY J: It is not really an alternative though, is it? Is it not that on one view (b) and (c) are aspects of (a)?

MR SPIGELMAN: They may be. But your Honour will recall that the joint judgment referred to it. Whether or not it extends to - I took your Honours to that a moment ago.

TOOHEY J: Yes, I understand that. That is why I would not have thought it was so much an alternative, as whether (a) subsumed (b) and (c).

MR SPIGELMAN: That is one way of looking at "extends". I mean it was theoretically possible to - I suppose, that government and political matters would not embrace all aspects of (b) and (c) but one would assume that it would embrace most of them. Could I hand to your Honours some copies of our additional references on a number of matters in the case including - on the question of ratio and certain other matters?

BRENNAN CJ: Would this be a convenient time then, Mr Spigelman?

MR SPIGELMAN: Yes, your Honour.

BRENNAN CJ: The Court will adjourn until 10.15 tomorrow morning.

AT 4.17 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 6 MARCH 1997