Lange v The Australian Broadcasting Corporation S109/1996 [1997] HCATrans 91 (6 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 THURSDAY, 6 MARCH 1997, AT 10.17 AM

(Continued from 5/3/97)

Copyright in the High Court of Australia

_________________

BRENNAN CJ: Yes, Mr Spigelman.

MR SPIGELMAN: Your Honours, yesterday I indicated that I would take your Honours to the judgment of Justice Deane to make good the proposition that he adopted the same broad view, the same scope of the freedom as the majority. Could I do that briefly. We are still in 182 CLR. At page 166 in the middle of the page his Honour indicated the breadth of the test:

It follows that the Constitution's implication of freedom of political communication and discussion is applicable to confine both.....legislative powers -

and also the common law. But the identification of the scope of the freedom is no different to the majority's. At page 177 his Honour repeated the same sort of scope. Again, in the middle of the page:

However, it assumes a different dimension within the area to which the constitutional implication is directed, namely, that of statements which constitute, or form a relevant part of, political communication and discussion.

That is why he agreed with what has become paragraph (a) of the pleadings and the one that we did not abandon. He did agree with that proposition even before he saw the joint judgment and had to add his addendum. So that if one goes to the order again at page 208:

(a) discussing government and political matters -

That is in answer to question 1. Is the breadth of the freedom which he understood and the joint judgment understood to have been the identification of the breadth of the freedom in the earlier cases?

GUMMOW J: This notion of "government and political matters", in the first Uniform Tax Case, Chief Justice Latham said that virtually any activity may become a government function or matter.

MR SPIGELMAN: I am not here to understate the breadth of what is capable of being within the area of political discussion, however, the facts of this case are such as on any view to be at the heart of such discussion, admittedly in New Zealand, but that is a separate issue, and obviously there are areas where people may assert that they are discussing matters of government and political significance but in due course the courts will find they do not, in fact, do so. The best example obviously is where it is asserted that some area of private conduct is relevant to suitability for office. That is an area where it may prove difficult to draw the line and the line may be drawn differently from time to time, but we do not wish obviously to understate the breadth of what is within the freedom, acknowledging, however, that that in itself carries some dangers for us.

GUMMOW J: But does there have to be some antecedent discussion?

MR SPIGELMAN: I am sorry?

GUMMOW J: Can one create one's own debate, as it were?

MR SPIGELMAN: The Americans have considered that as to how and when people become public figures for the purpose of their test. May I say that is something that needs to be worked out in the same way as this Court has worked out in detail in other areas of constitutional jurisprudence the application of specific provisions of the Constitution. Section 92 is probably the best example. That has been drawn - - -

GUMMOW J: Not a happy one.

MR SPIGELMAN: - - - differently from time to time. It is not the only one though. Another very good example of working out in detail and that there has been some criticisms of answers to question 2, for example, of working it out in detail is - take the Hindmarsh Bridge Case in terms of when a judicial officer may perform non- judicial tasks, in reverse, the case of the registrars of courts, when they can perform judicial tasks. That is a process of working out in detail the application of the Constitution.

Now, a similar process will go on here. One of the issues before the Court on this occasion, and an important issue, is whether the fact that the subject matter of the discussion involved New Zealand is outside the scope of government and political matters in Australia, and I will come to that in a moment. This is just an example of the working out process to which I have just referred. Could I just come back to these answers to questions at page 208. Your Honours, Mr Reynolds identified the words in paragraph 2 acknowledging that (a), (b) and (c) had to be read disjunctively by reason of the reference at the beginning of the question in paragraph 2:

If yes to any part or parts of question 1.

Now, it is clear, we submit, for a number of reasons, of which this is the last, that (a), (b) and (c) are disjunctive. (a) is the constitutional provision in its fullest breadth, a restatement of what was identified to be its breadth in ACTV and Nationwide News, and they are disjunctive so that our abandonment of some equivalent of (b) and (c) has no effect. We are still within the Theophanous principle if the Theophanous principle applies, is upheld by this Court and, of course, that it applies to New Zealand. While I am on this page could I take your Honours to a particular idiosyncrasy of the question and answer in 2. The question asks this:

If yes to any part or parts of question 1, is any such freedom subject to a condition that the publication will not be actionable.

What the question says is are these matters constitutional facts, in the sense that your Honour used during Mr Reynolds' submissions. The answer says "does not constitutionalise this issue". The answer does not accept the words "is the freedom subject to a condition". It says:

In the light of the freedom implied in the Commonwealth Constitution, the publication will not be actionable.

Now, what this is doing is working out the application in the same way as those judicial power cases that I referred to a moment ago. But it does not constitutionalise these facts. It applies the constitutional freedom which is identified in answer to question 1 in this way but it does not say this is part and inherent in the freedom. Many of the submissions that have been made to the Court, and I think a number of the observations from the Bench, have assumed that these facts are constitutionalised in some way. The Court was invited to do so and in its answer consciously avoided doing so.

When one looks at the judgments in Theophanous both of the majority judgments have exactly the same structure. They are in three parts. The first, what is the implication? By and large they draw that from the earlier cases. Second, is there an inconsistency between the freedom and the common law? Thirdly, can we identify an area of operation of the common law? This is identical to the process that was undertaken by the Courts in the two original cases with respect to legislation. Is there a freedom? Yes. Secondly, does the statute offend the freedom? In this case is the common law inconsistent with the freedom and various tests were applied, some using the language of proportionality, some not. But that stage of the judgments applied an equivalent process to the question of inconsistency.

The third process, namely, identifying the zone of immunity, namely, does the common law have an area within which it can operate consistent with the freedom; is what happened in, particularly Nationwide News as to whether or not the statute could be read down. All of the judgments that dealt with the matters said, no, it could not be, because of the well known application of principle to what was parliamentary intention. When one is asking the same question of the common law, can you read an area - can you identify a zone of immunity, is there an area in which the common law can operate, the two judgments in Theophanous were adopting the same question as the question in Nationwide News, "Can you read it down?"

Understood in that way, the judgments fall into three parts: implication, inconsistency and a zone of immunity. There are distinct issues that arise under those three parts. The question of necessity of implication - at least for structural implications - arises only with respect to the first.

When Mr Reynolds was addressing the Court on questions such as necessity, he took the Court to a passage, first, from the judgment of Justice Deane, where his Honour was addressing the question of inconsistency, not implication, and said, "Where is the language of necessity?" He did not take the Court to the part of the judgment of Justice Deane where he addressed the question of implication. Similarly with the joint judgment. He took the Court to a passage with respect to the third question; namely, is there a zone of immunity - a minimum area of immunity. Where the Court was discussing that, he says, there was no language of necessity. Nor in either of those two areas of the respective judgments was there any need to adopt the principle of necessity, because necessity is irrelevant to the matters under consideration by the Court.

DAWSON J: I do not know that that is so, Mr Spigelman. You cannot say what the freedom implied is unless you have regard to the qualifications upon it, and the end result is what is implied.

MR SPIGELMAN: Your Honour, we say that is not the structure of the judgments.

DAWSON J: It may not be the structure of the judgments, but it is the logical conclusion.

MR SPIGELMAN: No. We submit that the question of whether or not a particular rule of the common law is inconsistent with the freedom is a distinct question from the question of what is the freedom.

DAWSON J: That depends on the extent of the freedom, and the two interrelate.

MR SPIGELMAN: I am sorry, I think we are ad idem.

DAWSON J: Yes, but the two interrelate. You cannot separate them out in the way in which you do, because in the end what you have is said to be an implication by necessity.

MR SPIGELMAN: The implication is one of necessity. Its application to particular statutes or particular principles of the common law depend on the intersection between the implication and the operation and effect of the statutes or the common law principles.

DAWSON J: Yes, all right.

GUMMOW J: You will be coming, will you, Mr Spigelman, to this question of inconsistency in this universe of discourse?

MR SPIGELMAN: Yes. Perhaps not quite in the terms of what your Honour has just suggested but I am sure I will have to.

GUMMOW J: It is a word that we all think we are seized of because of section 109. This is not - - -

MR SPIGELMAN: I would not - I mean, there may be some guidance from section 109 but I am not suggesting that - - -

GUMMOW J: For example, I wonder if there is any guidance from notions of repugnancy, the Colonial Laws Validity Act, for example.

MR SPIGELMAN: There may be, in the same way as questions of - they are a different formula in Nationwide News and ACTV as to what the test was for striking down the statute. I do not think any of their Honours in that case used the word "inconsistency".

GUMMOW J: You used "impermissible" yesterday.

MR SPIGELMAN: I am not using the word "inconsistency" here in any formal sense, in the sense I am using it as a label to show why repugnancy may be an area. May I say, one of the things that is not the case - just while we have section 109 in our minds - is not the case that the implied freedom in some way covers the field, or that the constitutional defence covers the field. A number of the questions that Justice McHugh raised with other counsel may have made some suggestion that this implied freedom may strike down or qualify some other defamation defence. We say, no, it overlaps with it. That is also why Mr Reynolds's reliance on some suggestion that the Court did not expressly address the details of the codes is equally irrelevant. This constitutional defence may overlap with other defences of qualified privilege or reversions in the Codes but it is not as if it overrides them and says there is no other defence, it does not cover the field.

McHUGH J: It does not necessarily mean there is no other defence. But do you concede that the constitutional defence lays down a rule which strikes a balance in favour of plaintiffs and against plaintiffs in favour of publishers and against publishers?

MR SPIGELMAN: It lays down an area of immunity in which questions of the significance of protection of private reputation played a role, but it does not do so by saying the constitutional implication is in these terms. It does so by applying the Constitution to the particular rules of law, just as in the previous cases the Court applied the Constitution to the particular statutes and said the reason for the inconsistency - if I can still use that term - is that there are these - I think your Honour the Chief Justice used language of proportionality but perhaps I could just say appropriate and adapted for some other purpose. The question was one of defining the extent of the implication and its application to the particular statute, or here, the rules of common law involved.

McHUGH J: If New South Wales wants to enact a statute reversing the Theophanous onus and put the onus on a politician to negative the various matters, that is all right?

MR SPIGELMAN: That would be valid.

McHUGH J: What this establishes is a minimum zone of immunity. It is not a maximum, it is not covering the field, it says, for so long as the common law does not infringe in this area or a statute - in this area - then it is valid. If there is an overlap, if it gives you some rights which are within the area of immunity and some which are outside, then it is equally valid. It is only if it impinges on the area of immunity - - -

McHUGH J: I appreciate the way you put it and I have followed the force of that argument as to what it means, but it is curious that it is framed in this way. One would think that it would just deal with a particular defence and would say paragraph 20(b) as pleaded infringes the freedom, full stop. But it seems as if it lays down what the freedom is. "You have to be unaware of the falsity; you must not publish material recklessly", but these are facts to be proved at a trial. They do not state - - -

MR SPIGELMAN: They are, and that is why the answer to question 2 does not pick the question.

McHUGH J: You say that does not constitutionalise it.

MR SPIGELMAN: That is right.

BRENNAN CJ: Mr Spigelman, the way in which you have outlined the structure of the judgments perhaps present in stark form the issue for this Court's determination. If the first step is to spell out the implication and the second step is to discover inconsistency between the implication so defined and something else, then the second step proceeds on the footing of an articulation which is different from the constitutional text.

MR SPIGELMAN: The second step proceeds on the basis that, whether it is representative - we will be submitting that at least the majority and perhaps Justice Deane used representative government as a label or a shorthand description, which was your Honour's phrase I think in McGinty. The question of whether or not what the joint judgment in particular did was to apply some intermediate principle or apply the text of the Constitution but describing it in a shorthand way is a matter which I have to come to. Justice Dawson has made it clear he would not permit me not to. That is really the issue I think that your Honour has just addressed.

BRENNAN CJ: Yes.

MR SPIGELMAN: We say that it is an application. If there is an implication of freedom of speech, it either is a way of describing what is there in the words - and we would not limit the words just to the election provisions. We say that that is what was done by the then Chief Justice in his judgment in ACTV and which is reflected in the joint judgment in Theophanous in which he joined. But some of their Honours have adopted a different approach, we say in the alternative to what would be that more orthodox approach and in addition to. So they have two routes to the goal. But I have to make that good.

McHUGH J: Perhaps you can help me because if you can convince me on this you will go a long way to securing my vote in this case, but let us take the interpretation of another statute. Supposing you had a statute like the US Man Act which says no one can bring into New South Wales a prostitute. Obviously the purpose of that is to prevent prostitution in New South Wales. Nobody would suggest for a moment, as a matter of interpretation or implication, that you could then prosecute people for having brothels in New South Wales even though that may fulfil the purpose. Nobody would suggest that that law would authorise you to make a regulation that you could educate people about prostitution. Now, what is the difference between that situation and these words of the Constitution where people say the purpose of section 7 and 24 is representative government, therefore, anything that furthers representative government is implied by the Constitution?

MR SPIGELMAN: The first proposition is that there is a majority in ACTV and Theophanous which does not adopt that approach, namely, that the persons who do articulate the second approach in the way your Honour put it are also, in the alternative, relying upon what I have called a text and structure approach. They adopt an underlying doctrine approach, that is true - that is the way I put what your Honour put to me secondly - but they say, "As well as that we adopt the first." Now, that is relevant to me for the question of binding force and ratio, but in terms of convincing your Honour, it is sufficient for me for these purposes to go through the sorts of tests I went through yesterday, the syllogisms, and take whatever your Honour sees to be the proper meaning of the words of the Constitution, in your Honour's case concentrating on 7 and 24.

If it goes no further than that then I may lose this case, but from the point of view of the insignificance of this principle to my client, we will take what we can get. What I would seek to do is to convince your Honour that sections 7 and 24 in terms of an informed choice are not restricted to any period of an election campaign, that the process, the dialogue between the people and their representatives occurs continuously. The second matter that reinforces that is the responsible government provision, section 64, which says not only that we shall have representatives, but the people in government are responsible for those representatives and responsible to them on a continuous day-to-day basis and it is that which reinforces the fact, that express text of the Constitution which reinforces the fact that the process of communication cannot be limited to election day.

McHUGH J: Yes, well, I understand the force of the argument and I notice, I think, it is Herald & Weekly Times that has an argument based on sections 7 and 24, which is not about some force, but hitherto, purpose of construction of which I have written a number of judgments in support of, has been used to give an interpretation to the text which would support the overall purpose, but in this area its purpose seems to have been used to take the text, find a purpose, and then say, "Well, whatever suits the purpose or promotes the purpose is all right from a constitutional point of view."

MR SPIGELMAN: If that is so for other members of the Court, then it would be churlish for us to refuse their support on that basis, but we say that even those members of the Court can, and have, used what your Honour would regard as a more orthodox approach to reach the same conclusion.

DAWSON J: Mr Spigelman, am I interrupting you? Do you want to say something more?

MR SPIGELMAN: No, thank you, your Honour.

DAWSON J: In the various cases I did not, myself, restrict the operation of sections 7 and 24 and related sections to election periods.

MR SPIGELMAN: No, your Honour.

DAWSON J: That being so, what you are saying is on one reading of the judgments there is no difference between the approach which I take and that of the majority?

MR SPIGELMAN: Your Honour is perhaps closer to the Chief Justice's approach than Justice McHugh originally was.

DAWSON J: No, because once you have a constitutional provision my view is that it prevails over the States as well as the Commonwealth because it is a constitutional requirement.

MR SPIGELMAN: In your Honour's case I would have to say that the direct operation of the informed choice, of which 7 and 24, in particular, make provision, the direct operation of that has an effect on the common law in so far as the common law is inconsistent with the necessary processes - - -

DAWSON J: It prevails over everything. It is a constitutional requirement and every branch of government must observe it.

MR SPIGELMAN: Yes, that is, in a sense, the step that Theophanous took beyond ACTV.

DAWSON J: Notwithstanding that I arrived at a different result, that does not alter the principle, you would say, because the principle is the same?

MR SPIGELMAN: Your Honour arrived at a different result in Lange. In fact struck down the statute having adopted what some would regard as a narrower test than other members of the Court, was alone in striking down the statute. So here, that sort of difference, is permissible. Obviously it is well within - it happens, with respect, all the time.

DAWSON J: In saying that, you must be saying that the majority, at least, on one reading of the judgments, "by representative government" means simply that for which section 7 and 24 provide, that is to say, representatives chosen directly by the people.

GAUDRON J: And perhaps 64.

MR SPIGELMAN: It is a shorthand - they went beyond 7 and 24. That is what I was about to say: 64 and probably 128 was also referred to. That is exactly our basic submission. Can I take your Honours to that?

BRENNAN CJ: Then the problem - if you put it in syllogistic terms that you did before, the question for us to determine is whether or not there is any question of undistributed middle. In other words, has there been some movement from the text of the Constitution to the shorthand which was used for the next proposition?

MR SPIGELMAN: I was proposing to rely on that next week but our view is no. If one reads the joint judgment correctly, it uses the word "representative government" as a convenient - what your Honour called in McGinty, "shorthand description for what is in the Constitution". The point that your Honour Justice McHugh made several times yesterday. Is it any more than just the words of the Constitution?

DAWSON J: I used it in my judgment. I said "representative government" but by that I meant the representative government for which the Constitution provides and no more.

MR SPIGELMAN: And then the question becomes one of working out, in your Honour's case, what the informed choice requires.

KIRBY J: Is this relevant to the tedious question that I am still puzzling over? If you look at the orders in Theophanous, if in fact your proposition that (a) is disjunctive is correct, you did not need (b) and (c) because (b) and (c) are clearly to discussing or relevant to governmental and political matters. But if in fact the purpose of the majority view was to link it in to representative government in the broader sense, then (b) and (c), if conjunctive, give a smaller scope for the constitutional freedom but they give work to (b) and (c) to do. Because we are being invited to overrule Theophanous, because it is difficult there being the majority and a minority view in the majority, we are driven back to finding out exactly what these orders mean. It just seems to me very difficult to read (a), (b) and (c) disjunctively because (a) is so broad.

MR SPIGELMAN: It was claimed that the joint judgment did not regard (b) and (c) as encompassed within (a). They used the words, in the passage I quoted to your Honour yesterday, the word "extension" - the next question.

KIRBY J: Yes, I know there are verbal indications, but I am trying to find the logic of what is the holding that is to be attributed to the four Justices who constitute the majority. If you are focusing your mind on a constitutional principle which is linked into representative government, then conjunctive makes sense, because (b) and (c) are saying, "Well, you are discussing government and political matters, but that is a very broad ambit and, therefore, we will link it back to 7, and all the other sections that are relevant, by saying it has got to be concerning members of Parliament, it has got to be in relation to their suitability for office," and then that all makes sense.

MR SPIGELMAN: May I say this; it may have been - it is not articulated. It is quite plain, we say, in the judgments that they regarded (a) as not necessarily covering the field of (b) and (c), and the reason for that might be in (c); that is, not all questions of suitability may answer the description "government and political matters".

KIRBY J: Well, it is a brave attempt. But (b) and (c), in my present contemplation, make no sense disjunctively, because they would be encompassed within (a), (a) is so broad.

MR SPIGELMAN: All I can say is that that is not what their Honours said they were doing, and not least in the next question.

KIRBY J: There is a reification here. This is a reification. We are looking at what, objectively, is the holding of the Court, and the only clue we have is, ultimately - there being different reasons - is the order. As you say, that may mean you lose this case, but it may leave the constitutional principle, still a very substantial one, of implication, but one tied back to the text of the Constitution and to the principle of representative government.

MR SPIGELMAN: That will not be the happiest of outcomes, but it would be a happy outcome.

KIRBY J: Your client cannot make it through (b) and (c).

MR SPIGELMAN: We have abandoned any equivalent of (b) and (c) with respect to this case. It was originally pleaded with reference to the New Zealand Parliament inserted where the Commonwealth Parliament there appears, and we abandoned that.

KIRBY J: You have never suggested that the frontispiece to their programme that tried to link it into Australia in some way got your client into (b) and (c).

MR SPIGELMAN: It got us into (a). Just coming back to the question of the joint judgment and, in particular, the approach. In McGinty, at I think it is 168, your Honour Justice Dawson drew particular attention to a passage in Theophanous for the proposition that the majority had taken the step that your Honour has been criticising, and that passage is at 120 and 121 in Theophanous.

DAWSON J: In Theophanous?

MR SPIGELMAN: In Theophanous. It was in McGinty that your Honour said this is the bit in the joint judgment that tells me that their Honours had adopted an incorrect approach to constitutional interpretation.

McHUGH J: Mr Spigelman, you are using the ALJR reference?

MR SPIGELMAN: Yes, to McGinty.

BRENNAN CJ: I think the rest of us have been using the ALRs, if that is convenient to you.

MR SPIGELMAN: I am sorry, your Honour. I was not intending to take the Court to McGinty. I was just saying that it was in that part of McGinty that your Honour Justice Dawson said this is the bit that shows that they erred.

DAWSON J: Which is the bit?

MR SPIGELMAN: The last few words of page 120:

In those cases, a majority of the Court distilled from the provisions and structure of the Constitution, particularly from the concept -

I think your Honour was probably referring to these words:

particularly from the concept of representative government which is enshrined in the Constitution, an implication of freedom of communication.

It is the part within the commas that is capable of the interpretation your Honour took. I think it was your Honour Justice Gummow who said with respect to this joint judgment on Monday, it is the words that matter - what do the words say? The words say that the part in the commas is a particularisation of what is outside the commas. What is outside the commas is, can be "distilled from the provisions and structure of the Constitution.....an implication of freedom of communication". What we say this passage in the joint judgment means is not that there is some free-standing concept of representative government but that from the text and structure of the Constitution, the words "provision and structure" are used, this is the implication one can get and it is convenient to ascribe that as a shorthand description to it; namely, we are talking about the provisions which are about representative government.

BRENNAN CJ: This basis depends on what, really, you attribute to the word "enshrine" does it not?

MR SPIGELMAN: And perhaps concept, but the whole passage within the commas is a particularisation of what is outside the commas. That becomes a bit clearer from the equivalent sentence in Stephens. Can I take your Honours to page 232? In page 232 at about point 7 to 8 it says - handed down the same day; same joint judgment; same Judges:

The implication of freedom of communication in the Commonwealth Constitution was based on the provisions and structure of the Constitution -

here are the same commas -

particularly the concept of representative democracy and government for which the Constitution provides -

The word "provides" there is used instead of "enshrined".

BRENNAN CJ: Enshrined, yes.

MR SPIGELMAN: Yes:

principally by ss 7 and 24.

They are equivalent sentences. You read the two together. We are right in saying that the majority judgment in this case cannot be categorised as applying a free-standing principle. It is text and structure of a completely orthodox character. It goes on to say, your Honours will see, in terms of the necessity - I should read the sentence while I am here:

The implication was made as a matter of necessity in order to protect the efficacious working of a system of representative government mandated by the Constitution.

There can be no doubt that in the process of implication, we say, the Court applied a test of necessity. So read, we say, that this joint judgment clearly adopted what your Honours would regard as an orthodox approach. They both refer back, we submit, in their form to what the then Chief Justice said in Australian Capital Territory, and could I take your Honour back to that.

McHUGH J: Mr Spigelman, as I put to you yesterday afternoon, it is the use of the implication freedom of communication.

MR SPIGELMAN: Yes.

McHUGH J: Communication readily understandable. The question of freedom should record the result of working out what the communication requires. That is why I said the moment you say it implies freedom of communication you stack the deck in favour of the answer that you want.

MR SPIGELMAN: I am content to say that, if one could think of another label, the informed choice - but think of some other word which includes section 64 in particular - is such that the constitutional words of choice have the following effects in particular circumstances.

McHUGH J: They must require communication. Choice must imply communication at some level in some circumstances.

MR SPIGELMAN: "Efficacy" being the word from the paragraph. It cannot work without it.

McHUGH J: You must have communication. When you are talking about whether it is freedom of communication that is to be arrived at by determining what the Constitution compels. You do not start with this implication of freedom of communication. As I say, the deck is stacked.

MR SPIGELMAN: The way, I think, your Honour the Chief Justice put it was communication so that the people can perform their constitutional functions.

BRENNAN CJ: That is a question of capacity to make the choice.

MR SPIGELMAN: Yes, that is right.

BRENNAN CJ: Not anything further than that.

MR SPIGELMAN: And what we say is that that is in the second stage of the three-stage process. Namely, when one is looking at the law - - -

BRENNAN CJ: That is the problem, is it not?

MR SPIGELMAN: It may be. But when one is looking at the law - - -

BRENNAN CJ: It is in the second stage and not in the first, then the first stage is going to articulate a constitutional doctrine which on that approach exceeds what can properly be spelt out. In other words, if you go to freedom in the first stage and then look only to capacity in the second, you have gone beyond.

MR SPIGELMAN: We submit not.

BRENNAN CJ: I understand that, yes.

MR SPIGELMAN: But, if necessary, then we would say that the capacity is part of the first stage process as a text and structure implication and as a matter of necessity. Your Honours, could I just go back to ACTV. The then Chief Justice who joined in the joint judgment I have just taken your Honours to made clear, we submit, the approach he took and one which we say is reflected in the joint judgment. At page 136 at the foot of the page he outlined in the last paragraph what the case was being put:

Their case is that a guarantee of freedom of expression in relation to public and political affairs must necessarily be implied from the provision which the Constitution makes for a system of representative government. The plaintiffs say that, because such a freedom is an essential concomitant of representative government -

There it is a reference back, namely, the provision which the Constitution makes for a system.

GUMMOW J: Yes, but that assumes that one knows what the freedom is. Free from what? From some legal restraint. What legal restraint?

MR SPIGELMAN: That can only be worked out when one looks at the legislation or the common law rule which is said to restrain.

DAWSON J: But that is not the method that is used, you see. When you look at the judgments, what they do is postulate an absolute freedom of political discussion and then they look to see what adjustments would have to be made to that by reason of practicality and so on. It is a First Amendment exercise. It is writing into the Constitution - - -

MR SPIGELMAN: We submit that what they do is in this second sentence - I know I am only at the stage of saying what the case is but the argument was in effect adopted - it is saying not an absolute freedom; it is saying what area of communication is an essential concomitant of representative government, understood in this sense as the representative government for which the Constitution provides. There is an area. The first proposition is there is an area of communication which is an essential concomitant of representative government. What that area is does not mean to be defined in the abstract. What one does, as one properly does in the development of the common law, is look at it on a case-by-case basis, sees each statute and each rule of common law that comes before the courts and says, "Does that infringe the area of communication which is an essential concomitant of representative government?".

GUMMOW J: But it is rather odd, Mr Spigelman, in a way because, when this Constitution was framed, it would be surprising if this structure of government that was set up was conceived as one which was necessarily in any opposition to what the common law provided in relation to these sorts of matters.

MR SPIGELMAN: May we say, first, we adopt the various points of view expressed that original intent is not the basic principle that binds the Court in areas of constitutional interpretation. Even if it is, it may take a long time - - -

GUMMOW J: It still looks odd today.

MR SPIGELMAN: Well, we submit not, but even if one takes an intentionalist approach, it may take a long time to discover the intent. For example, in 1904 some of the authors of the Constitution wrote a Conciliation and Arbitration Act. Now, it was not until 1956 in the Boilermakers Case that this Court found that to be unconstitutional. Some of the founders may have been surprised at that, but we submit that this is within the original but our basic approach obviously will be that the proper approach to constitutional interpretation goes beyond that. I will take your Honours to a passage on that in a moment.

GUMMOW J: But then you have got to articulate some real criterion which works to adjust this concept of inconsistency of the common law and what the Constitution provides by implication and as yet I have not found that in these materials.

MR SPIGELMAN: I do intend to come back to that. Perhaps I can just finish this part of my - - -

GUMMOW J: Because unless I can find that, I cannot get airborne.

MR SPIGELMAN: If your Honour pleases. Could I endeavour to do what I can in that regard, but could I just finish this. His Honour the then Chief Justice, after articulating the proposition, basically indicated in a number of pages his reasoning that it was correct and at page 140 point 4 he comes to the final conclusion which we say is exactly the same as what appears in the joint judgment in Theophanous:

Freedom of communication in the sense just discussed is so indispensable to the efficacy of the system of -

once again, indispensable necessity -

representative government for which the Constitution makes provision that it is necessarily implied in the making of that provision.

So that is quite clear, we submit, that he is talking about, in the way your Honour Justice McHugh has asked on several occasions, "What is this principle of representative government?", it is the one for which the Constitution makes provision. Now, we submit that his Honour the Chief Justice adopted here what I call a text and structure approach and that in the joint judgment in Theophanous and Stephens he maintained that approach and the joint judgment should be so read.

McHUGH J: Could I just ask you a question. If you go back to 138 under the heading, the Chief Justice implies the freedom of communication from the accountability and responsibility which he had earlier referred to and that responsibility was that the representatives:

have a responsibility to take account of the views of the people on whose behalf they act.

MR SPIGELMAN: And respond to the will of the people, is the phrase.

McHUGH J: Yes. Now, does that mean constitutionally that members of Parliament, federal Parliament, are under a constitutional duty to take account of the views of the people and that a member of Parliament who refuses to take account of those views is in breach of a constitutional duty?

MR SPIGELMAN: Whatever Edmund Bourke might have once said, that may very well be the system of government which we establish. Whether or not there is any cause of action to enforce that is another issue. It may be that the only remedy is at the ballot box, but Justice Finn has written recently a number of pieces on the question of government as a form of trust and it may well be that one day a case will arise in which that is a relevant matter for decision. This is not the case. Your Honours, in terms of the various judgments in ACTV and - - -

BRENNAN CJ: Neither seems to evacuate any responsibility from power, does it not?

MR SPIGELMAN: Well, your Honour, it may. It may, but the question of the responsible government provision could, theoretically, create a direct line and that, namely, the link to government through responsible government to the election process is the only link that matters. Yes, it is the old principle. Edmund Bourke regarded the members of Parliament not as delegates and that has been a distinction as to whether or not members of Parliament are meant to be mere delegates of the people or have some independent expression and, after them, the ministers that they select, whether they are mere delegates of Parliament or have some responsibility of power, that is an old problem in political theory, but your Honours have enough such problems. That one does not arise in this case.

Could I just direct your Honours' attention to paragraph 11 of our written submissions where we summarise the respective propositions for which we say Nationwide News and ACTV are authority. Your Honours will see (a), we say the structure and text of the Constitution embodies a system of representative government, et cetera, and we give your Honours references. The first such reference, I notice the name does not appear, but is from a judgment of the then Chief Justice and we outline the basic propositions there. We do not wish to take your Honours to each of those passages at this stage, but we say they will show that text and structure is either the only or an alternative way of reaching the conclusion.

Your Honour Justice Gaudron's position may very well be a text and structure approach as is suggested by your Honours' later judgments, and the two passages we wish to give the Court references to are in McGinty - I am giving your Honours the ALJR reference, I am sorry, just as a reference. I do not want to take your Honours to it, 231F, and in Muldowney, also in 70 ALJR 524B.

We submit that your Honour there gave primary reference to the text and structure and that it may have been that your Honour in ACTV was intending in addition the alternative approach, but it is quite clear that Justices Deane and Toohey did adopt that alternative approach, we say, as well as a text and structural approach and not as the exclusive approach. To make that good, could I take your Honours to Nationwide News at 69,70 in the first of the two joint judgments of their Honours. At the bottom of 69 under the heading of "constitutional implications" the following appears:

There are at least three main general doctrines of government which underlie the Constitution and -

We give emphasis to the word "and". They -

underlie the Constitution and are implemented by its provisions. One of them is the doctrine or concept of a federal system -

et cetera. It goes on -

Another is the doctrine of a separation of.....powers.....Thus, for example, the cases establish that it is a fundamental implication to be derived from the nature of the federal system established by the written terms of the Constitution that.....capacity to function as such.

The federal as an implication. Then -

Again, the judgments in past cases establish that it is a fundamental implication of the Constitution's doctrine of the separation of powers -

namely, not any separation of powers, not Montesque pure and simple, but -

the Constitution's doctrine of the separation of powers that, while it allows for the adoption of the Cabinet or Westminster system of government -

et cetera. It goes on to refer to Chapter III -

The implication of the Constitution which is of central importance in the resolution of the present case flows from the third of those general doctrines of government which underlie the Constitution and form part of its structure.

It is the "and" that we give emphasis to. Their Honours are intending to say, you can do it two ways. You can look at the structure or you can use the underlying or overreaching principle on here underlying the Constitution.

The doctrine can conveniently be described as the doctrine of representative government -

and we say that that is consistent with what your Honour in, I think McGinty, called a shorthand description. From here on we will use the words "representative government" because we do not want to set out all of the sections of the Constitution and the structure on which we rely again.

That becomes more clearly when one looks at page 71 of the judgment, in the paragraph commencing about two-thirds of the way down the page:

In implementing the doctrine of representative government -

so, one looks at concept, which is maybe outside the Constitution, but one is looking at the implementation of it -

the Constitution reserves to the people of the Commonwealth the ultimate power of governmental control. It provides for the exercise of that ultimate power by two electoral processes.

We are talking about 7 and 24 here. Then:

The second is that to which reference has already been made, namely, the amendment of the Constitution -

namely, section 128. Then, over the page one sees the express reference to 7, 24, 128.

Now, there are references, we submit, to two ways of doing it; namely, one can look at text and structure alone, or one can look at, as it were, the principle of representative government, and apply that, as it were, as an implied term in the sense I used yesterday. In this respect, could I take your Honours also to 77 point 8. In page 77 of the judgment, before their Honours turned to the question of whether the Act there is valid, or the section of the Act is valid, there is a passage about two-thirds of the way down:

We have used the phrase "prima facie scope" for the reason that, as has been said, the implication of freedom of communication about relevant matters is drawn from the provisions of the Constitution as a whole and is confined by any provisions of the Constitution, including the provisions of s. 51.

Now, that is, we say, an alternative way by which their Honours reached it. It is not the only formulation. But when one sees these words "drawn from the provisions of the Constitution as a whole" - I would like your Honours to remember that, because there is another phrase which is against the proposition I am contending, and which I need to explain. If your Honours can just put a mental finger on "drawn from the provisions of the Constitution as a whole" and turn to ACTV at 168 - and I think this particular passage has been referred to in some of your Honours' judgments which were critical of the reasoning process of their Honours - and it is the passage which is, in a sense, worst against me. It is this - the first paragraph commencing on that page. It talks about a:

doctrine of representative government embodied in the Commonwealth Constitution -

and goes on to say:

The fact that the implication is drawn from an underlying doctrine -

now, this is the purest example of underlying doctrine -

of the Constitution rather than from any express term means, however, that the implication will itself be overridden to the extent that -

everything is contained in section 51. Now, this is the clearest expression that their Honours were relying only on underlying doctrine, and not on express terms. Now, what we say is when you read "any express term" here, together with the passage at 77 of Nationwide New - "drawn from the provisions of the Constitution as a whole" - what their Honours were saying was "any particular express term".

We do not draw it from the terms and structure of the Constitution. We say that we draw it either on an underlying doctrine approach or from the terms and structure of the Constitution but it is not drawn from a particular express term. When read together with paragraph 77, that passage at 168, which is, I believe, the strongest passage against the interpretation I am urging on the Court, we say becomes quite explicable. It is the same point that your Honour the Chief Justice made in Theophanous at page 149 point 8. It is the passage about two-thirds of the way down:

The constitutional implication with which we are here concerned is derived from the system of government prescribed by the Constitution which I shall call "representative government" -

that is a convenient shorthand description -

The system implies that the "people of the Commonwealth".....should be able to form and to exercise the political judgments required for the performance of their constitutional functions. The implication is derived from the structure of representative government prescribed by the Constitution rather than inhering in a particular word or phrase of its text.

It is in that sense we say that their Honours in the joint judgment, Justices Deane and Toohey, said the fact that the implication is drawn is not from any express term; it is the same sense, namely, not any particular word or phrase in the text.

We submit that, so understood, their Honours should at least be understood to have advanced the proposition that one can get to the conclusion either by an underlying doctrine approach or by a text and structure approach. For purposes of a ratio of the case, that is enough for me. May I say this. The fact that Justice Toohey joined in the joint judgment in Theophanous itself shows, we submit, that at least his Honour regarded the text and structure approach as an alternative to an underlying doctrine approach and that he had intended always to rely on both.

I have taken your Honours to paragraph 11 of our written submissions. We say the propositions in that paragraph with the references there given constitutes the ratio of ACTV and Nationwide. I will not take your Honours to the passages. The ratio of Theophanous is, we submit, contained in the orders, as Mr Katz indicated, and we rely on that. If one wished to articulate the reasoning as part of the ratio - and we do wish to rely on the reasoning as part of the ratio and not just the orders - Theophanous is authority for the following three propositions.

The first proposition is this. It may be obvious, as your Honour Justice Dawson has indicated. In the case of an inconsistency between the Constitution and the common law, the former must prevail. We say it is authority for that proposition. It may be obvious but I am unaware of any other authority, because the issue, I do not think, has arisen before.

The second proposition for which it is authority is this: there is an inconsistency between the Constitution and the common law of defamation. All four of the judgments in the majority came to that conclusion. Finally, the third proposition which is part of the ratio of Theophanous is this: the inconsistency applies to all political communications not protected by the zone of immunity referred to in the defence set out in order 2. That is to say what Justice Deane - I will just repeat that. The inconsistency applies to all political communications not protected by the zone of immunity referred to in the defence set out in order 2. Namely, what the joint judgement said was, there is an inconsistency which goes this far and no further, namely, here is the zone of immunity. Beyond that the law of defamation can apply.

Justice Deane said, "I agree that there is an inconsistency to that extent." I would say that the inconsistency, at least in the case of high public officers, goes further. Lower level - if I can use that term - public officers he never said went further. But in so far as Justice Deane said within that area of immunity there is an inconsistency he agreed with the majority. That is why there is a ratio in Theophanous which goes into the judgments and not just the orders. It is reflected in the orders and the orders say that there is this area of immunity. He agreed with the majority that the inconsistency goes that far, as far as the orders show. He did not agree with the majority that it goes no further; but in that respect, we submit, one can still detect an area of common ground which can be expressed in the form of a legal proposition.

McHUGH J: It comes to this in the end, does it not, that the constitutional freedom depends upon the judgment of a jury? It is a strange doctrine.

MR SPIGELMAN: No. The application of the constitutional freedom to particular facts will depend on the tribunal of fact. Decisions as to whether or not trade is absolutely free is a decision of fact. What we are saying is, the constitutional freedom determined in the earlier cases - we say it was determined in the earlier case; alternatively, we say, it was reaffirmed or redetermined in Theophanous - takes the same form as section 92, leaving out the word "absolutely". Namely, it takes the form of political communication shall be free.

GUMMOW J: Yes, but I was thinking about this, Mr Spigelman. No one ever suggested, did they, that section 92, for example, would mean that a covenant between parties in restraint of interstate trade, which was reasonable under that test, was nevertheless, under the common law test, bad?

MR SPIGELMAN: Different question. But no, they did not, and it is probably too late to do so. No, they did not, and it may be that, because we are here dealing with a test of efficacy - - -

GUMMOW J: In other words, common law rights were conceived of as being consistent with 92.

MR SPIGELMAN: So it would appear. I do not know of any case to the contrary or any reasoning to the contrary. But may I say this provision may be different because of its link to the efficacy of the system for which the Constitution makes express provision. The Constitution does not make provision for trade. It gives powers that operate on trade; it does not establish trade, whereas the Constitution establishes a system of government and it is in protection of that that one can more readily say it affects private rights. Could I contrast of course the type of provision for which section 92 makes provision, for example, with 116 which starts off:

The Commonwealth shall not make any law for establishing any religion -

One of the views that has been advanced in the Court is the implication should be read as if it were like section 116, namely, "The Commonwealth shall not make any law", perhaps adding the States depending on one's point of view. But there are models in the Constitution for the expression of the form of communication.

May we say this. At the end of ACTV it may have been open to go one route or the other. ACTV itself was only concerned, as I think your Honour Justice Gummow pointed out in McGinty, with legislation and your Honour read it as authority for a freedom affecting legislation. It may have been possible at that stage to say that the form of the freedom commenced with words like "The Commonwealth shall not make any law" in the way of 116. We say that that is not how to read the judgments. The judgments are not expressed in that way, although that was in fact the factual circumstance with which the Court was dealing in those two earlier cases. We say the judgments are authority for the proposition that the form of the freedom is in a form like section 92 and the various expressions of the freedom which we set out - - -

GUMMOW J: What you are saying is that it is freedom not just from any law of the Commonwealth but from other things as well?

MR SPIGELMAN: That is so, by reason of the protection of the efficacy of the system for which the Constitution makes, namely, my syllogisms when I got to my feet, namely, if there is such a freedom, it is intended to be effective. In order to make it effective, it has to apply to more than just Commonwealth legislation. It has to apply to State legislation in so far as it operates on the Commonwealth Constitution and it operates - - -

GUMMOW J: I know, but then we get to the question: why would the common law rules make it ineffective?

MR SPIGELMAN: That is a different issue.

GUMMOW J: That at the moment I am not readily understanding.

MR SPIGELMAN: May I say I do not know that I get a lot of time to develop that but, when I come to that point, we say that is what the joint judgment in Theophanous said. It goes through in some detail - when it is dealing with the question of inconsistency, it says that if you are subject to civil remedies or - - -

GUMMOW J: I can understand desirable, less desirable, more desirable, but effective/ineffective seems to be a sharp line.

MR SPIGELMAN: It is, and efficacy is the test that the Court applied, and I will take your Honours to where it was so applied.

DAWSON J: It was not only efficacy; it was greater efficacy.

MR SPIGELMAN: No, we say without freedom of communication the system of government - - -

DAWSON J: More efficacious than - - -

MR SPIGELMAN: - - - which the Constitution provides would not answer the description of a system of government chosen by the people.

DAWSON J: I think the wording in the judgments went further than that. It talked about "more efficacious". You do not embrace that?

MR SPIGELMAN: I will come to that, your Honour. In fact, I will come to that in a moment, I will not be very long.

DAWSON J: I may be wrong about that. Justice Toohey says it does not.

MR SPIGELMAN: It is a crucial word and it appears in at least ten places in the joint judgment in Theophanous and on each of the places it is consistent with a test of necessity which is - if that is material at this stage of the reasoning. I have indicated the extent of the joint judgment and Justice Deane's agreement with it. What we say is that he agreed that it went to that extent, but he would have taken it further. That does not prevent there being a ratio with respect to the extent of inconsistency that he agreed, and we say that is binding. If not, obviously we rely on simply the questions and answers as part of the ratio. If not, then the doctrine of stare decisis is a question of what did it decide? Your Honour's judgment in Tyler; ex parte Foley, a similar reference was made in your Honour's judgment in Philip Morris in that document of additional references I handed up yesterday. We gave your Honours references of that. We would rely on that principle.

In terms of the effect on the common law your Honour Justice Brennan agreed in Theophanous that the Constitution would prevail if there was an inconsistency, but found no such. Your Honour, the basis we would submit for that, one needs go no further than covering clause 5 as we indicated in our written submission. We also indicated that it may be that this operates as a condition on the judicial power in accordance with a little bit of the American state action doctrine, not that part of the American state action doctrine that says that the owner of a shopping centre is the state, but the original state action doctrine which says the judiciary is an arm of the state. So, we rely on those.

Covering clause 5 itself, however, is enough. It overcomes - on the basis of the authorities we gave in our written submissions, it overcomes the principle of statutory construction that where two constructions of legislation are open, that which is consonant with the common law is to be preferred. We say covering clause 5 has the effect that that principle does not apply, namely, if there is an inconsistency between the Constitution and the common law, the Constitution prevails.

BRENNAN CJ: But in interpreting the Constitution, is it not right to see it as enacted in a matrix of the common law as Sir Owen Dixon suggested?

MR SPIGELMAN: It is right to see it in that way but that does not mean if one, in truth, says that certain matters are necessary for the preservation of the efficacy of the system which the Constitution creates, that one would not draw the implication of the common law as being affected.

BRENNAN CJ: That is quite right. The question is what implication should be drawn in the light of that nature of the Constitution as being enacted in that matrix.

MR SPIGELMAN: Yes. Well, it is part of the matrix. It is for purposes of interpretation. Before I come to the question of - could I do that now, your Honour? One of the matters of construing the Constitution, as I indicated yesterday, the principles of statutory construction are not what they were in 1920, and your Honour Justice McHugh earlier this morning made reference to your Honour's earlier judgments -Kingston and Keprose was the one I had in mind, and that was expressly approved, as I remember, in Bropho, in this Court by a majority joint judgment. But also, it really starts in this Court with Cooper Brookes. In Cooper Brookes I would remind the Court there are some criticisms of what was said in the Engineers' Case on how you go about construing a statute. So, construing the Constitution is not the same as it was once. We say it goes beyond that. The Constitution is not just an ordinary statute. I think it was Professor Otto Freund who said about the American Constitution, "One must not construe the Constitution as if it was a last will and testament lest it become one", and that is so.

The best statement of that is in the Payroll Tax Case 122 CLR 396 to 397 in the judgment of Justice Windeyer. That was on our second list of authorities. In the middle of page 396 his Honour addresses the Engineers' Case:

I have never thought it right to regard the discarding of the doctrine of he implied immunity of the States and other results of the Engineers' Case as the correction of antecedent errors or as the uprooting of heresy. To return today to the discarded theories would indeed be an error and the adoption of a heresy. But that is because in 1920 the Constitution was read in a new light -

as it was in 1995 in Theophanous -

a light reflected from events that had, over twenty years, led to a growing realization that Australians were now one people and Australia one country and that national laws might meet national needs. For lawyers the abandonment of old interpretations of the limits of constitutional powers was readily acceptable. It meant only insistence on rules of statutory interpretation to which they were well accustomed. But reading the instrument in this light does not to my mind mean that the original judges of the High Court were wrong in their understanding of what at the time of federation was believed to be the effect of the Constitution and in reading it accordingly. As I see it the Engineers' Case, looked at as an event in legal and constitutional history, was a consequence of developments that had occurred outside the law courts as well as a cause of further developments there.

So, we argue the free speech cases can be identified.

That is not surprising for the Constitution is not an ordinary statute it is a fundamental law. In any country where the spirit of the common law holds sway the enunciation by courts of constitutional principles based on the interpretation of a written constitution may vary and develop in response to changing circumstances. This does not mean that courts have transgressed lawful boundaries: or that they may do so.

Now, we say that that is an accurate description of what this Court did in the original cases and by taking the further step of applying it to the common law in the second line of free speech cases.

DAWSON J: What are the changed circumstances here?

MR SPIGELMAN: Can I address that in full when I come to the question of qualified privilege?

DAWSON J: Yes.

MR SPIGELMAN: Because the same point arises really and it may arise in a more acute form there, if your Honour pleases. In terms of why the Constitution limits the common law, could I direct your Honours' attention to our additional references we handed up yesterday where we gave additional references on both the section 49 point and the judicial immunity point. Your Honour the Chief Justice in Theophanous said that the Constitution and the common law operate in different fields of discourse and do not intersect. What we sought to do in our submissions - and these are paragraphs 17 to 18 of our written submissions as elaborated in paragraphs 52 and 53 - was direct attention to two areas of the Constitution which do impinge on the common law.

GUMMOW J: I am not so sure about that. In a way the privileges of the British House of Commons were part of the English common law.

MR SPIGELMAN: They were too, but they were also part of parliamentary privilege and that is the purpose of the additional references we gave your Honours.

GUMMOW J: Yes.

MR SPIGELMAN: We said they came from Article 9 of the Bill of Rights, namely - - -

GUMMOW J: Yes, which those people were saying was declaratory. They were not admitting for a minute that they were doing anything new.

MR SPIGELMAN: No, it was declaratory, it may have been, but it became a parliamentary privilege.

GUMMOW J: They were saying James II had subverted it all and this is what it really is.

MR SPIGELMAN: And the whole purpose of the Bill of Rights was that. That may be right, but what I am saying is that section 49 cannot be merely described as declaratory of the common law. Section 49 is a provision which says there is this principle which applies in the House of Commons and we, namely, this Constitution, by direct operation of one of its provisions has an effect on the common law, namely, it has effect on common law rights to sue for defamation, being the relevant one. The authorities that we have listed in our additional authorities, beginning with Sankey v Whitlam and the others, are ones that consider this question of parliamentary privilege and we say identify this immunity as an aspect of parliamentary privilege and not merely as a common law rule applying to Parliament. It may be the case, as Mr Meadows suggested yesterday, that the common law rule has the same consequences and effect as does the parliamentary privilege rule. That may be so save when it comes to questions of enforcement when the Parliament is enforcing it - - -

BRENNAN CJ: There is no doubt that the Constitution affects common law rights, liabilities and immunities. Absent the Constitution there would be no obligation to obey a law of the federal Parliament. I mean, the problem is not of that sort. Of course the Constitution affects the common law. The question is, does the Constitution purport to affect the common law in its relationship as amongst subject and subject?

MR SPIGELMAN: What we say is that whether it is subject and subject - that is one way of characterising it, but what we say is that section 49 by direct operation has the same effect on the law of defamation, namely, the express provision, section 49, has the same operation on the law of defamation as we seek to give the implied provision, namely, if a person wishes to sue a member of Parliament for what he said in Parliament by reason of its defamatory comment there will be a defence and it is a defence that is given by direct operation of an express provision of the Constitution, namely, if you sue a member of Parliament you breach one of the privileges of the House of Commons, therefore, there will be a defence and a strike out.

McHUGH J: But do not you have to read the Constitution as a whole and do not you have to read it in accordance with this implied term? Is it not a consequence of ACTV and other cases that the gaoling of Brown and Fitzpatrick for criticising a member of Parliament may be unconstitutional.

MR SPIGELMAN: An implication would give way to an express term such as this. And I took your Honours to passages of what Justices Deane and Toohey had said a few moments ago in which they acknowledge that. One has an implied term and an express term operating in the same field, then one reads down the implied term accordingly. Section 49, obviously, gives the Parliament authority, as it has since exercised, to pass legislation for protecting its own privileges. But pending that, the Constitution by its own force applied privileges. One of the effects of that was to create a defence to a defamation action. We say that is an analogy, and a direct analogy, with what we have here.

DAWSON J: Is it? Because you really come back to your first premise. You say that the implication is necessary for the efficacious working of representative democracy, being representative democracy as laid down in the Constitution. But there are various views as to what is efficacious for the working of representative democracy. That is demonstrated in the Constitution by the fact that apart from the minimal provisions which are made, it is left to Parliament to prescribe what form of elections we have, what suffrage, whether we have divisional representation at all, whether we have one vote, one value, and there would be varying views of the degree of freedom of communication which was necessary. There may be an irreducible minimum there but for the rest, it was left to Parliament to decide or to the common law, for that matter, if the common law so provided.

MR SPIGELMAN: We submit that while much was left to Parliament to provide, there was an area of protection for which the Constitution provided.

DAWSON J: This is where the debate is, between you and - if there is a debate, this is where the debate is, that it would be said, well this is not within the area of the irreducible minimum for free elections. One can have more than one view about this. Therefore it is a matter that is left to the common law and to Parliament.

MR SPIGELMAN: The fact that one can have more than one view about it does not mean it is not within the irreducible minimum for which the Constitution provides.

DAWSON J: It means that it throws doubt on your first proposition because it is not - you cannot imply what is efficacious because there are various varying views about that. You have to imply what is necessary for the working of the system.

MR SPIGELMAN: There are and that will long remain. But we submit that that does not - and that may have different effects in the application of the principle to different cases but it does not affect the existence of a principle.

DAWSON J: What you say at the end is or what you do not say at the end - what one might say at the end is, well look, there are varying views about defamation laws but with the defamation laws as they were thought to be prior to these decisions, it could not be said that we did not have a system of representative government. And if you say that, that is the end of the question.

MR SPIGELMAN: It has been said, and we rely on the cases, including ACTV and Nationwide, which are not sought to be reopened.

DAWSON J: But this is where the debate is really, now.

MR SPIGELMAN: We rely on the formulation of the precedents in ACTV and Nationwide. No one has sought leave to reopen those cases.

DAWSON J: And, on your view, there is no need to.

MR SPIGELMAN: No, no, absolutely. But Mr Graham sort of trailed his coat a bit and said, "If I cannot win any other way, have a look at this." But he did not seek leave to reopen those cases and no one has - - -

BRENNAN CJ: Well, I have misunderstood him in that case. I understood that if the propositions for which he was contending were to be found rooted in those cases, that is precisely what he did ask us to do.

MR SPIGELMAN: I did not understand that but, if he did, then it should be rejected. No one really has addressed ACTV and Nationwide, and we say that they raise even more fundamental questions on leave than Theophanous does.

DAWSON J: But you see, the view that you are putting does mean that since 1901 we have not had a system of representative government as defined by the Constitution. You have to face up to that.

MR SPIGELMAN: I do not wish to say that the Constitution was perfect, and I do not need to say the Constitution was perfect, and may have been defective in the respect - - -

DAWSON J: But that is what you say, is it not?

MR SPIGELMAN: It may have been defective in the respect that your Honour put, or within what Sir Victor Windeyer indicated was the proper development of constitutional interpretation - - -

DAWSON J: And that in Britain, for instance, there is no representative government.

MR SPIGELMAN: That, perhaps, is easier to argue.

DAWSON J: Yes, you will say, "Well, they have their system and we have ours." But let us restrict ourselves to Australia. It is a somewhat astonishing proposition that for some 90 years we have lived in ignorance of the fact that we do not have a system of representative democracy as required by the Constitution.

MR SPIGELMAN: I indicated to your Honour I would come back this when I was discerning qualified privilege. The basic thrust of what I will say when I come to qualified privilege is this; that the developments over recent decades - and it would not have been true in 1900 - is that the media in this country are now an essential part of the process of accountability.

McHUGH J: So, it is all about the media.

MR SPIGELMAN: I am sorry, we are talking about defamation, suing for publication to the public at large and, in the context of qualified privilege, that is the issue. When is it a matter of privilege when you publish to the public at large, and that is what the media do. We say that over the course of the decades -and it was not true in 1900 - the media in this country have become an essential part of the process of accountability, and that is what has changed.

KIRBY J: There are, of course, critics of the media who say it has become an entertainment industry.

MR SPIGELMAN: Well, no doubt it is both. But, your Honours, I was proposing to develop it because it is much more directly - - -

DAWSON J: Well, I do not want to - I just did not want to be seduced by your soothing words from forgetting the essential facts.

MR SPIGELMAN: But there are changes, and they are changes which the system of government - they are changes of a character that they could answer the question, "Yes, we had a system of representative government in 1900, without it impinging on the law of defamation; but, no, we do not have one today." I am sorry, "We have one - we have had one for the last two years and we want to keep it."

McHUGH J: Mr Spigelman, when you talk about the change in media and media not becoming part of the process, it is not a view I think that John Norton or David Syme or Sir Keith Murdoch would have agreed with.

MR SPIGELMAN: They were at the earlier part of the period, but your Honour could choose contemporary examples if you wished. It is not a question of being part of the government. What we say is that a part of the process - it is not the only thing the media do - but a part of the function that the media perform now is part of the accountability process. That is a function of change in the size of the population, change in the complexity and detail of matters that Parliaments deal with. I mean, question time is a couple of hours a week. Press conferences are one of the major mechanisms for challenging.

BRENNAN CJ: This must come into your argument in relation to qualified privilege rather than - - -

MR SPIGELMAN: It does, your Honour. I indicated that is where I wanted to raise it.

DAWSON J: I am sorry, I was responsible for that.

McHUGH J: Can I take you back to something you said about the Constitution. I gather you say that this implication gives away to express provisions in the Constitution.

MR SPIGELMAN: Yes.

McHUGH J: How do you reconcile that with the fact that section 51(v) gave an express power to make laws with respect to television and wireless? It is true it is 51 subject to the Constitution, but there you have an express power but the implication struck it down. So how - - -

MR SPIGELMAN: If a law was made under that provision which trenched upon the freedom of political communication, it would be struck down in the same way as the law in ACTV was, and that was a law which, in part at least, drew on that very provision.

McHUGH J: That is what I am putting to you about this implication. In ACTV the implication was seen as striking down the law made under the express power, so that the power itself gave way.

MR SPIGELMAN: It is no different from the way in which the provision in the acquisition power, which excises acquisitions on other than just terms, is seen as cutting down any other power which may have carried with it a power of acquisition.

TOOHEY J: It simply gave way to the Constitution.

MR SPIGELMAN: Yes, it is included in the words "subject to the Constitution", as I think your Honour Justice McHugh indicated right at the outset.

TOOHEY J: Mr Spigelman, why do you speak of changes in the way that you do? I mean, these matters have come before the Court for the first time in this form. Where is the change in either the approach by the courts or in representative government? It seems to be implicit in some of the questions that have been asked of you.

MR SPIGELMAN: Going back to Sir Victor Windeyer:

The interpretation of a written Constitution may vary and develop in response to changing circumstances.

We say that is orthodox.

TOOHEY J: But the change is in the circumstances.

MR SPIGELMAN: Yes. It may have once been the case. I am not conceding that it was, but this was not implicit from 1900 and therefore it just took a long time to realise it. I am not conceding that that is the case but, even if it was not implicit in 1900, we say the proper approach to constitutional interpretation allows one to adapt to changing circumstances in the way Sir Victor Windeyer put. If that is a proper description of what happened in the original two free speech cases of ACTV and Nationwide, we say that is fine; that is a permissible approach to the constitutional interpretation.

KIRBY J: You will remember the other passage of Sir Victor Windeyer which was read to us in which, in the context of section 92, he said, "If you are at the cusp and you have a choice, I'd leave the choice to Parliament rather than cut it down, take it away" - and one might add ", especially where the Constitution hasn't troubled to express it clearly and in terms".

MR SPIGELMAN: We would submit that that, whilst a valid principle, the choice is not always inevitably in that direction, particularly when one comes to issues, if I might say so, of efficacy. Could I turn to that now because that is really at the heart - - -

BRENNAN CJ: Just before you do, could I take you back to section 49 where you have been some time ago. Do you say that the absolute privilege to the publisher of the proceedings of the House of Parliament depends on section 49 and not on the common law?

MR SPIGELMAN: No, that is a common law rule.

BRENNAN CJ: Then what is the relevance of section 49 to your present argument?

MR SPIGELMAN: Section 49 means that a member of Parliament cannot be sued for what he said in Parliament. That is a bit different from the publication of parliamentary proceedings. In that respect it is the same as the implied term here, albeit relating to publication outside of Parliament.

BRENNAN CJ: And do you say that the immunity from suit of a parliamentarian from what he says in Parliament is traceable solely to section 49 and not to the common law?

MR SPIGELMAN: There may also be a relevant common law rule, but it would not matter if it operates coterminously. All that matters is there is at least one provision of the Constitution which strikes at - the fact that you might have two defences does not matter. If you are entitled to use what is a parliamentary privilege as distinct from what is a common law rule that attaches to the same circumstance, then the Constitution has the direct effect for which we contend and a very closely analogous one to the effect for which we contend, the implied term basis.

BRENNAN CJ: Though it be a work of supererogation?

MR SPIGELMAN: To have a common law rule?

BRENNAN CJ: To have a constitutional rule.

MR SPIGELMAN: If they overlap in their incidence. Obviously they do not overlap with respect to which Court is entitled to enforce the rule. It may very well be that by proceedings for contempt, if the common law courts did not enforce it or even if they were going to enforce it, but in the alternative, the Court of Parliament, as it was once known, could exercise that traditional function and enforce it. Now that is not supererogation. That is just another mechanism of enforcing what may be a similar principle.

BRENNAN CJ: It just occurs to me that the immunity which counsel and judges enjoy is one which does not seem to depend precisely upon the terms of the Constitution.

MR SPIGELMAN: There is no precise term and Mr Meadows pointed this out and said that that is a common law rule and we rely on that as well. It is not a section 49, we said, line of cases that establish judicial immunity emerge from Chapter III. He says that is only a common law rule. We would say there is perhaps an overlapping implication from Chapter III which has the same effect.

BRENNAN CJ: The overlapping implication from Chapter III, section 49. Are there any other provisions of the Constitution on which you rely to indicate an intention to effect the common law rights of subject and subject?

MR SPIGELMAN: They are the only two examples we gave in our written submissions and the answer to your Honour's question is, if we could think of another we would have put them in a written submission.

DAWSON J: Can I just take you back to what you were saying, that if what is efficacious for the working of representative government changes from time to time, would not that be an indication that it was left to Parliament to determine what was necessary from time to time rather than allow this Court to freeze a particular view into the Constitution which is appropriate at the time but may not be appropriate later.

MR SPIGELMAN: No, because in each case we are talking about what is irreducible minimum and if it changes, then this Court can recognise that change. It is not frozen by any decision of this Court.

DAWSON J: So what is said to be the constitutional defence now, may not be the constitutional defence in ten years time.

MR SPIGELMAN: Perfectly possible.

DAWSON J: Yet no one will know, of course, that Parliament has the power to make a statute which it would not to change this - if the case is not brought to the Court for instance.

MR SPIGELMAN: Because we are dealing with an irreducible minimum. The Parliament can change the system of representative democracy beyond the area of a irreducible minimum community so there is that minimum that the Court preserves.

KIRBY J: Discussing governmental and political matters does not seem a very small irreducible minimum. It is an enormous scope. That is another reason - - -

MR SPIGELMAN: Your Honour, that is the description. The zone of immunity as defined by the area, in answer to question 2, describes the irreducible minimum.

KIRBY J: Yes, but it does so without the word "and" or the word "or".

MR SPIGELMAN: No, that is the answer to question 1 I am talking about there.

KIRBY J: No, both of them, I am sorry.

MR SPIGELMAN: The question 2.

KIRBY J: Yes.

MR SPIGELMAN: The beginning of question 2 your Honour will recall says "does answer any part of 1", so it treats 1 as disjunctive and it says you have to do X, Y and Z, which are cumulative, conjunctive. Now, that is the irreducible minimum. It is the area where, with respect, a high level of - - -

KIRBY J: It could be conjunctive but if in respect of any part of the conjoined requirements the answer was yes - - -

MR SPIGELMAN: Your Honour, we submit that one cannot have a part of a conjoined requirement.

KIRBY J: I am just picking up your statement that this is an irreducible minimum. If it is an irreducible minimum to discuss governmental and political matters, then that is not an irreducible minimum. That is just an enormous range.

MR SPIGELMAN: The irreducible minimum was in answer to the second question, namely, this is how it affects the common law and it is the answer to the second question that one gets the zone of immunity, namely, unless you are able to prove (a), (b) and (c) in the second question then the constitutional freedom does not apply to strike down the common law.

McHUGH J: And, on your argument, may have no relevance in five years time.

MR SPIGELMAN: Your Honour, five years is not a period with which the kinds of circumstances I am discussing change.

McHUGH J: Why not? Supposing it turns out that plaintiffs complained bitterly about the injustice they suffer because they cannot successfully sue defendants for publishing false statements about them. Why would that not be a changed circumstance about the freedom? If the balance is tipped the other way you could have a situation where we might be revisiting this issue every couple of years or certainly every five or ten.

MR SPIGELMAN: We would submit no, that one is talking about longer term changes and that - although Sir Victor Windeyer regarded the change prior to Engineers' Case occurring in 20. However, what had happened in that period, of course, in terms of the emergence of Australian national identity was the First World War. One can hardly imagine anything as dramatic as that in this area of discourse and so 20 would be a short time for a big change but it included such a dramatic event that the change in terms of emergence of a national identity had, in fact, occurred within that comparatively short time.

Could I come to the question of efficacy. Your Honours, I know I have an indulgence but I do even with that need to speed up a little. The central concept we submit in Theophanous is efficacy. Could I take your Honours just to a couple of the occasions where it appears. The first is in 122 under the heading "The scope of the implied freedom". Your Honours will see the third sentence, I think:

Because the system of representative government depends for its efficacy on the free flow of information and ideas and of debate, the freedom extends to all those who participate in political discussion.

On the next page 123 to the second full paragraph:

But it is desirable to consider the question: what is the content of the expression "political discussion", bearing in mind that the underlying purpose of the freedom is to ensure the efficacious working of representative democracy.

Page 125 at about 6, the last just before the subheading:

reflects the difference between protection of freedom of expression generally as a fundamental human right -

that is the other cases, and:

the protection of freedom of communication in matters of political discussion as an indispensable element in ensuring the efficacious working of representative democracy and government.

Note the word "indispensable". They are in this part of their judgment discussing the implied freedom and they use words, contrary to what Mr Reynolds submitted, of necessity, namely "indispensable".

DAWSON J: Yes, but that is the difficulty with this phrase. I do not want to engage in an argument just on words, but "efficacy" is a matter of degree. I must say that I was wrong in saying that words "more efficacious" are used by the majority. I think I used the words "most efficacious", but that merely demonstrates that there is a matter of degree.

MR SPIGELMAN: Yes.

DAWSON J: Matters of degree cannot be matters of necessity except when you get to the irreducible minimum. Well, I know what you say about that.

MR SPIGELMAN: Yes, they can be in the principle of federalism and it is based on the same principle. Could I just give your Honours a number of other references. One can go through 128 point 5, 130 point 6, 133 point 4, and 137 point 4, and all of those emphasise the fact that the actual implication is based on efficacy. Could I take your Honours to 74 CLR. In that their Honours are applying a test which is orthodox in the area of implications from federalism. Your Honours will recollect in our written submissions we have said there are three other matters not found in the express words, rule of law, implications from federalism, and separation of powers. In Melbourne Corporation his Honour Justice Dixon, as he then was, applied the same test and one of efficacy in the basic case on the question of the implications from federalism. At page 83 - - -

BRENNAN CJ: This is 74 CLR?

MR SPIGELMAN: 74 CLR, and at page 83 of that judgment your Honour will see there is a paragraph at the fifth line:

These two considerations add great strength to the implication protecting the Commonwealth from the operation of State laws affecting the exercise of federal power. But they also amplify the field protected. Further, they limit the claim of the State to protection from the exercise of Commonwealth power.

He talks about something else:

Accordingly the considerations upon which the States' title to protection from Commonwealth control depends arise not from the character of the powers retained by the States but from their position as separate governments in the system exercising independent functions. But, to my mind, the efficacy of the system logically demands -

Now, we say this is exactly the same test as the majority - - -

DAWSON J: The same words, but what he is talking about, there is an irreducible minimum.

MR SPIGELMAN: Yes, we say there is with respect to communication.

DAWSON J: What is said in the judgments is a matter of degree. It must be.

MR SPIGELMAN: No, we say there is an irreducible minimum of freedom of communication with respect to political matters.

DAWSON J: If you say that I understand it.

MR SPIGELMAN: Your Honour, we rely on the same sort of a test.

GUMMOW J: You are saying all within question 1(a) is an irreducible minimum?

MR SPIGELMAN: It is the irreducible minimum in terms of how it affects the common law. It is within the area of immunity subject to the answer to question 2. When you read the two together you get the irreducible minimum.

McHUGH J: But his Honour was not talking about a Constitutional doctrine, was he? He went on to say:

But, to my mind, the efficacy of the system demands that, unless a given power appears from a context -

et cetera, et cetera. So, nothing to stop the Commonwealth doing it.

MR SPIGELMAN: No. This is an issue that arises whenever one relies on the implication of federalism, whether Queensland v The Electricity Commissioners. Has the Commonwealth, by this legislation, passed the mark where it is interfering directly with the States as States, or has it simply passed legislation which is within its proper functions. That is always an issue that arises. It will arise with respect to any area of the common law that this implication of freedom of communication may apply to. In the law of defamation, have they passed the irreducible mark or not?

We submit that your Honours, in Theophanous and Stephens, found they had and, for the reasons expressed there, we say that it was correct. Now, yes, there is a minimum which makes the system different from that for which the Constitution provides. Now, that does not mean we have to have a perfect system of representative democracy, or if anyone could agree on what perfection is in that area of human discourse. Your Honours, could I go on to - I have given your Honours quite enough references, I think - - -

BRENNAN CJ: Can I just ask you, efficacious to achieve what result?

MR SPIGELMAN: To permit the constitutional system - - -

BRENNAN CJ: Instead of speaking about the system, could you be more precise as to the manner in which efficacy is made to work.

MR SPIGELMAN: The formulation is in the three or four different ways I announced in my syllogism at the outset, reflecting as it does, I hope, the different ways in which various members of the Court have expressed the proposition which your Honour advanced. Now, we are content with each of them in this sense; that in the order I gave them - they were in a descending order of generality - the highest was the one for which we primarily contend. I think your Honour's came second.

BRENNAN CJ: Well, please remind me of them, because I am not following, in this context, what has been - - -

MR SPIGELMAN: What we said for your Honour's major premise was this, that - just repeating it:

The 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 was intended to be effective.

Now, it is in that sense, we say - now, that comes from the words of the Constitution. It does not use - your Honour does not refer to the words of the Constitution there, but construes the words - there is an implication from 7, 24, probably 64, and 128, we think, that the people of the Commonwealth have to form political judgments to exercise those constitutional functions, so anything that interferes with the efficacy of that.

BRENNAN CJ: The capacity to form them.

MR SPIGELMAN: Well, not the capacity to form them, the process of formation.

GUMMOW J: In Theophanous at 137 the phrase is used, which you took us to a while ago:

essential to the effective and open working of modern government.

That is a rather different idea.

MR SPIGELMAN: Yes. As I have indicated, different members of the Court have expressed the implication at different levels of generality. We would prefer in the first case the highest level, of which your Honour's quotation is an example. That was, as it were, the first of the major premises in the syllogism that I directed the Court to yesterday. That is our first submission. Alternatively, go down the ladder. It may be that when I get to the bottom of the ladder, if I get to the bottom of the ladder, that will not lead to a successful outcome for me in this case.

GUMMOW J: Yes, I follow what you said about that.

MR SPIGELMAN: But we will take what we can get, as it were. I do not wish to take your Honours through other examples of the use of the word "necessary" or "essential" or "indispensable". They are scattered throughout the judgments in the sections of the judgments where they are contained concerning the question of implication. What my learned friend Mr Reynolds did was to take your Honours to pages 178 to 179 of Justice Deane's judgment where he was dealing not with the question of implication but with the question of inconsistency, and then pages 134 to 135 of the joint judgment, where the Court was dealing with the third of the questions identified, namely, the zone of immunity, namely, can you read down the common law in the way you read down a statute? We say that questions of necessity simply do not arise at that level of the argument.

On the question of inconsistency itself, could I take your Honours just to some passages in the majority judgment in Theophanous. We rely on, as we have indicated in our written submissions, the whole of the passage from 129 to 136 in the joint judgment and 173 to about 185 in the judgment of Justice Deane for identifying why it is that there is an inconsistency between the common law and the freedom.

GUMMOW J: At 129 the word used in the heading is "inhibit".

MR SPIGELMAN: If your Honour pleases.

GUMMOW J: It has got me thinking.

MR SPIGELMAN: It may be so, but we say that they applied a stricter test during their reasoning. Could I take your Honour, for example - I have already mentioned page 130 but take it again, the last full paragraph on the 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 extend to protect political discussion from exposure to onerous criminal and civil liability if the implication is to be effective in achieving its purpose.

We say that is the test they actually applied and that is a test conformable with the propositions we have been putting to the Court.

GUMMOW J: I do not know; at page 133, Mr Spigelman, about line 12, 14, "significantly inhibiting" issues there, you see. The last paragraph before the heading.

MR SPIGELMAN: That would be fine, depending on how significant is "significant". Could I just direct your Honours' attention again to the passage - I do not think I have done this before - at page 136 at about point 7, the last full paragraph on the page:

However, once it is acknowledged, as it must be, that the existing law seriously inhibits -

Once again the question is how serious is serious?

freedom of communication on political matters, especially in relation to the views, conduct and suitability for office of an elected representative of the people in the Australian Parliament, then, as it seems to us, that law is inconsistent with the requirements of the implied freedom of free communication.

They are the kinds of passages, and they are scattered throughout this analysis - I do not want to take your Honours through it obviously - on which we rely. Justice Deane came to similar conclusions and we rely on his judgments in the passages to which we have directed your Honours' attention. At the time, at this stage of the reasoning, your Honours will recollect what I am saying is happening is the implication has been made. At this stage of the reasoning on question of inconsistency it is the same intellectual process as the test of proportionality or whatever test has been used by different judges of the Court, whether or not the legislation that was to be struck down - ACTV or Nationwide News - was appropriate and adapted to the fulfilment of a legitimate legislative purpose. That is the kind of language that was used in this. Perhaps I could just direct your Honours' attention to what the present Chief Justice said in Nationwide News at page 52. When one is asking the question is the common law consistent with a constitutional freedom, one is asking a question at the same level of discourse as what the Court did at page 52 just after the quotation at the top of the page. It is this:

The role of the court in judicially reviewing a law that is said to curtail the freedom unduly and thereby to exceed legislative power is essentially supervisory. It declares whether a balance struck by the Parliament is within or without the range of legitimate legislative choice.

We say, same kind of process when one is looking at common law rules.

GUMMOW J: If one is looking at a State - - -

MR SPIGELMAN: Do not put that volume away, I wish to read one extra passage.

GUMMOW J: What if one is looking at a State defamation Code? Does one look at the Code as a whole, or distributed in some way?

MR SPIGELMAN: No, I will be handing up to your Honours in due course something about the Codes.

GUMMOW J: Right.

MR SPIGELMAN: There is no problem with the Codes. My friend's submission failed to identify any section of the Code that was to be affected. The only section of the Code that is affected is the section which says, "Thou shall have a defamation action", because this is not a cover-the-field test. The defences, like qualified privilege, et cetera, which have their own particular operation, stay. There is no inconsistency with those defences, it is just that we have another defence, and it may totally override the other one, or there may be an area of overlap, but it does not matter. Once there is a constitutional defence of a character for which the answers to the question provide, there is no inconsistency with anything in the Codes except the section which says, "Thou shall have a defamation action". What this says is you might, but you have this other defence.

McHUGH J: But you cannot have a defence under the Constitution, can you, on your theory? The most it can do is to strike down some existing law or some existing rule.

MR SPIGELMAN: No. If one looks at the answer to question 2, what it does - the answer to question 2 is framed in a way which would extend to the Code States we submit, namely:

the publication will not be actionable under the law relating to defamation -

that is whether it is common law or statutory or the Code - if the defendant establishes this. That is the defence. Your Honours, we have an additional - we will distribute those in due course, but basically what we say is, if you look at the Tasmanian and Queensland positions, they each have provisions which read down their statutes, including the Code with respect to defamation, and so all that happens here is that the section of each of those Codes which say "Thou shalt have a right of defamation" is read down by force in Queensland of section 9 of their Acts Interpretation Act and a similar provision in Tasmania to conform with the constitutional defence. Could I hand to your Honours 10 copies of that and we will distribute this to the other - - -

GUMMOW J: When you say "read down", that is a complicating concept really. Do you mean read down by a blue pencil test or read down by - which would be the common law way of doing it - - -

MR SPIGELMAN: Read down in accordance with the provision of the Acts Interpretation Act which is set out in full in the document I am just handing to your Honours. We say it is the Queensland own legislative scheme which, once the constitutional defence is identified, has the consequence that the right to sue for defamation is constricted in accordance with the State and that is in answer, we submit, to what my friend suggested was some implications that were not considered. What we say is that there is no other effect. I mean, the qualified privilege type defence, the fair comment type defence in the Codes continues to operate in accordance with their terms. It just may be that the effectiveness of their area of operation is overridden by this Constitution defence or at least affected by it.

KIRBY J: Getting back to Justice McHugh's question. Is this not more consistent with a notion of a free-standing right which you have disclaimed to talk of - and I take your point about the answer to the question. The question does seem to say that you have this defence and a defence must rest on a right, but in the theory that I thought you were propounding, that this is an inhibition on law-making power inherent in the constitutional governmental arrangements set out in the Constitution, that this would only operate to strike down any statute or Code or to modify the common law, but not, as it were, create a defence. I do not quite understand how that is done in your theory.

MR SPIGELMAN: It creates a defence by saying there is the zone of immunity, namely, the zone - if you do the three things in the answer to question 2, then you are within the zone of immunity. If you do not do the three things in the answer to question 2, then there is no necessity to strike down either the common law or a code or any other form of legislation in order to preserve the efficacious working of the system of representative government.

KIRBY J: That zone of immunity sounds awfully like a free- standing right.

MR SPIGELMAN: It is not, your Honour, there is a difference between an immunity and a right.

McHUGH J: I know there is but you are pleading it. You have to plead this defence.

MR SPIGELMAN: That is the very question before the Court. Is this defence good in law?

McHUGH J: I know, but you plead it as a right. You say, "This is my defence to your defamation action. My publication was without malice. It was reasonable in the circumstances and it was made with an honest belief in the truth." You say that is my defence. If you ask the question, "Where do you get the right to plead that from?", the only answer can be the Constitution.

MR SPIGELMAN: That is right. But when you say - I think your Honour in Langer perhaps, moved away from having used the word "right" in ACTV and explained it in terms of an indemnity and I think your Honour the Chief Justice has identified it as an indemnity, particularly in Cunliffe, as I recollect. The difference basically between a right, free-standing or otherwise, and an indemnity is that, in substance, a right is enforceable against the world. In shorthand terms, in answer to a question your Honour Justice Gaudron asked, it would entitle you to be a plaintiff in substance. But that is not the kind of right we are talking about here. It is an indemnity which you can only use by way of defence.

McHUGH J: What is the source of your defence? It can only be the Constitution and it must be cutting down the plaintiff's right at common law to sue for a defamatory statement.

MR SPIGELMAN: Yes, by creating a zone of indemnity, namely, that the common law cannot operate just as a - - -

BRENNAN CJ: Immunity, do you mean?

MR SPIGELMAN: We say immunity. Did I say indemnity?

BRENNAN CJ: Yes.

MR SPIGELMAN: Yes, wrong case, your Honour. I am sorry.

McHUGH J: It is an immunity from the common law - from the action on the case?

MR SPIGELMAN: It is an immunity from any statute, Code or the common law which impinges on that area of immunity. This area of immunity has been defined in term of the common law of defamation and how it applies in that area. We say that there is, in accordance with the way we put it in our written submissions, such an area of immunity and it affects the common law.

KIRBY J: And you say the New South Wales statute lives with this. It is not inconsistent.

MR SPIGELMAN: The New South Wales statute adopts the common law and gives you section 22 in the alternative.

KIRBY J: Now you say that there is nothing inconsistent with the constitutional right and the provision of the New South Wales Act. You are not contending the New South Wales Act is in any way struck down or inconsistent with the constitutional right declared by the Court in Theophanous?

MR SPIGELMAN: Could I just have one moment? It may be that the only section is the equivalent section to the ones I have just put in, namely, one has to qualify if there is a section which says you can sue in defamation. I am just looking that up. But that is the only one. There is also - - -

BRENNAN CJ: What you are saying is that whether it is a statutory or a common law cause of action the Constitution denies its effectiveness if the exercise of the right of action would interfere with whatever the freedom or efficacy of the constitutional requirement is. Is that right?

MR SPIGELMAN: That is so. That is what we say was decided in Theophanous and what we seek to uphold. How it impinges on particular statutory provisions is a matter which may need to be worked out but we do not think that there is anything of great significance. I mean, the fact that there all sorts of Code defences, none of them are affected at all. This defence just operates together with them. It is not a cover the field issue.

McHUGH J: But if it was an immunity, would not the plaintiff have to bring himself outside the immunity?

MR SPIGELMAN: No doubt those who instruct me would like to shift the onus of proof from the conditions imposed in Theophanous but I do not think that is something for which I am prepared to ask at this moment. The decision was clear as to who bore the onus of proof on the threefold tests in the answer to question 2. Your Honours, I have indicated in our submissions what we adopt, namely, from the reasoning of the two judgments; but also could I give your Honours a reference to Zines, the fourth edition, at 386 to 387, where the learned author also points out that a law providing an action for damages for performing an act is just as effective in preventing it as a statutory provision. That is why we say, in order to be effective, the implied freedom should extend to a common law which has the same effect and not just simply be an inhibition on the operation of the legislative power.

The question of the effect on publications is of significance here, particularly in the case of the media. Could I just direct your Honours' attention to our submissions at paragraphs 80 to 81. These are in the context of qualified privilege defence, namely, the issue is the risk of proof of truth. This is the chilling effect, which is a matter that is considered in the passages in Theophanous to which I have already directed your Honours' attention.

It is not a question of saying that the imputations are false, it is a question of saying whether or not the common law of defamation has the effect of interfering with the efficacy of the system of government for which the Constitution provides - and I know there is a shorthand in that formulation - that whether or not it has a chilling effect will depend on the risk of proof of truth. Not the proof of truth but the risks associated with being put in a position to have to prove truth. The matters we have identified there are only some of the matters that have that, what the Americans would call, a "chilling effect".

These are, we submit, relevant also for the question of the constitutional defence, although, in our submissions, they appear in answer to the questions of qualified privilege. I am just reminded of something that your Honour Justice Kirby said a few moments ago. Your Honour suggested that I had abandoned the free-standing principle. What I had, in fact, said was their Honours - the first thing we said was we do not think the free-standing principle is an appropriate characterisation of what the judgment said, but assuming your Honour, by referring to that, was referring to the two-step process: "The implication at a secondary level," I think, were the words of Justice Gummow, we do not abandon that. For those of your Honours who adopt that point of view we accept that and what we pointed out was that even those of your Honours who had done that, I had also in the alternative relied on what I would describe as the text and structure approach. So, we do not, as it were, say that you cannot do that but what we do say is that for those of your Honours who believe you cannot do that, you do not have to.

The third area in identifying the zone of immunity that I have referred to is a minimum area of immunity. We say that is the process of applying the freedom in the Constitution to a particular law, in this case the law of defamation, and whether you can read it down. Now, in Nationwide News, as I said, there was an attempt to read it down which was unsuccessful. Now, in the common law one is not inhibited in the same way by questions of legislative intention. The majority judgment did read it down and in doing so, we say, gave full weight to what one might call "a margin of appreciation". My friend seemed to make some reliance on that that that did not occur with respect to the common law.

McHUGH J: The "defence" does seem a matter of defeasance. It is a confession and avoidance plea. It is hard to describe it as an "immunity".

MR SPIGELMAN: Well, it takes the form, if your Honour pleases, of an avoidance in the formal proceedings but by reason of the existence of an immunity, and the immunity is what enables you to plead it in a particular way. What their Honours have said is that there is this defined area of immunity and, if you operate within it, then you are entitled to a defence and, if you operate without it, the application of the common law or the Codes with respect to defamation continues. Your Honours, we say in doing that there is a margin of appreciation in terms of the processes.

Now, could I hurry on to some of my friend's other submissions. He talked about how the cases and the Law Reform Commission Reports showed different views, and his argument was it cannot be a necessary implication if opinions differ. All I can say about that use of Law Reform Commission Reports - and the cases now may have a different function, obviously, with qualified privilege - is that is really going outside the text and structure of the Constitution for the purposes of saying you cannot draw the implication.

He also submitted that we relied on Barendt - a very broad definition of "political matter". I do not believe we did. We refer to our previous submissions at paragraph 58. I have handed up the question of the effect on the defamation Codes. Can I briefly say something about leave. One of the issues on leave has been: how wide can this go? We submit that the first step in ACTV and Nationwide will affect legislation. How wide can it go in terms of affecting the common law?

We would not have thought that the common law of contempt would be affected. If the standard is, as the test is, a tendency is a matter of practical reality to interfere with the administration of justice, we do not believe that there would be any relevant inconsistency between the common law of that test and the constitutional freedom, but that is probably the case as suggested in the case of Gallagher v Durack [1983] HCA 2; 152 CLR 238 at a page reference which I did not note down, however, I will give your Honours, where their Honours dealt with the question of scandalising the Court, dealt with the United States First Amendment cases, or not fully but referred to them, and concluded that the common law seemed to be consistent with the First Amendment cases on scandalising the Court.

We will endeavour to get your Honours some precise page references, but that would suggest, we would submit, that contempt, on the test which is prevalent, would not raise any question of inconsistency with the constitutional freedom. There were various matters raised about, for example, political signs and matters of planning laws and matters of that character.

Could I remind your Honours of what the then Chief Justice said in ACTV, where he, relying I think in part on the American cases, distinguished, for example, the kinds of laws which affect directly the content of a communication from those which regulate manner and form and indicated that when one came to deciding the question of inconsistency there were different approaches to the two, namely, the first form, content regulation, the reason for any interference was I think his Honour said compelling, what the Americans would call strict scrutiny.

When one was talking about regulation of - the passage I am looking at is at page 142 to 143 - the word "compelling" is at about point 3 on 143. One looks at matters differently. If it is a manner and form type restraint, then one has a different test, what, as your Honour refers to, as an activity or mode of communication restraint, namely, the test is stricter if one is looking at the contents of a communication. That is the sort of process which will have to be worked out in the cases as statutes are affected.

We do not know any other area of the common law that is likely to be affected in the same way other than possibly issues of confidential information, and your Honour Justice Gummow mentioned copyright yesterday. As we read John Fairfax v The Commonwealth 147 CLR the Commonwealth relied on the copyright by statute. I do not believe any question of common law arose.

GUMMOW J: But they also relied on confidential information.

MR SPIGELMAN: Confidential information, and they lost on that for precisely the kinds of reasons that have since been reflected in the Court's judgments in these cases.

GUMMOW J: I am not sure about that.

MR SPIGELMAN: There was an interference of freedom of speech. That was one of the steps in his Honour's reasons.

GUMMOW J: No, the secret was no longer secret.

MR SPIGELMAN: I think he also went on to say that when one was interfering with freedom of communications, one would want a - the government, when trying to protect its secrets, would be held to much higher standards than an individual would by reason of the significance of freedom of communication in our system of government.

GUMMOW J: I think that is right.

MR SPIGELMAN: In terms of Crown copyright the question may very well be whether that still exists as a prerogative - - -

GUMMOW J: That is what I was - - -

MR SPIGELMAN: If it does, then it may have the effect - the implied freedom may have some effect on it. But, the real question, I would have thought, as a practical matter is whether the Copyright Act is affected in some way, and that is not Theophanous. That is ACTV and Nationwide News, would have whatever effect on the Commonwealth's rights of copyright in that.

There are other forms. We think they are the two main areas but we do not think by any stretch of imagination - there are floodgates in other areas of the law, but, obviously your Honours have already shown in McGinty that there are real limits to how far the matters agitated in this case will be permitted to go. The page references in Gallagher v Durack are at page 242 to 243.

BRENNAN CJ: What volume again?

MR SPIGELMAN: Volume 152 of the Commonwealth Law Reports. Your Honours, we say that leave should be refused for the reasons set out in our written submissions at paragraphs 6 to 35. We say the reasons given by Justices Gibbs and Stephen in the second Territorial Representation Case on which we rely and set out are compelling. We say the specific matter was fully considered recently. We say, notwithstanding Mr Reynolds' submissions, all relevant arguments were considered. We say the case raises questions on which reasonable minds can differ, namely, what does efficacy require? What is the irreducible minimum as I have identified? Their Honours identified an area which said that this is what is required and there was an inconsistency to that extent with the common law.

We say that is something within the realm of a difference that does not justify reopening the cases. We say that there is the question that has been raised prior to this, that the change in the composition of the Bench is the only significant change that has occurred between then and now. In terms of the plaintiff making new submissions, we understand that both Mr Castan and Mr Jackson will be dealing with this matter. As our contribution to it, could I hand to the Court some references from the argument as printed in the Commonwealth Law Reports which indicate that the matters Mr Reynolds says were not dealt with were referred to in the course of argument. Of course, one should not limit oneself just to the argument in a case where there were extensive written submissions and the summary of argument that occurs only in Commonwealth Law Reports should not be used solely as an identification of what arose.

Now, it may be that Mr Reynolds put a different spin on some other points but that is not the issue. The issue is were they fully before the Court. We say they were. In terms of that matter, we submit that if one even looks at the judgments in Theophanous, for example, Justice McHugh's judgment, your Honour raises directly and considers a number of the matters which Mr Reynolds relied upon as not being before the Court, such as is there a test of necessity, was the test satisfied, is it permissible to reason in the way that the judgments, as your Honour understood, in ACTV and Nationwide did, namely, for a free-standing principle.

It can hardly be said that matters were not before the Court when they appear in the judgment. Now, your Honours, briefly, on the question of the publication being a New Zealand publication, as to whether or not it is government and political matter within the terms of paragraph (a), we repeat what we say in paragraphs 58 to 65 of our written submissions; namely - and it boils down to this - the subject matter of Australia's relations with New Zealand is the subject of political decision in Australia, and that is why what happens in New Zealand is relevant to us.

Similarly, experience of political matter within New Zealand can inform debate within Australia about the same subject matter. Here, we are dealing with a publication which concerns the influence of those who give donations to political parties upon the policies of the government. That is a subject matter of direct relevance to Australia. If one looks at the stated case, at pages 11 and 12, the introduction of this programme does direct Australian parallels.

It said at the outset, "We are about to tell you what goes on in New Zealand with respect to this matter. You will remember that the same points arise in Australia." We say that when one looks at the broad scope of what falls within "political matter", particularly Theophanous in the joint judgment at 122 to 125, and ACTV at 138 to 140, we say that political subject matter within Australia encompasses the debate of matters that are occurring on similar issues within our nearest neighbour.

KIRBY J: Our nearest neighbour is Indonesia.

MR SPIGELMAN: Yes, yes, your Honour, I am sorry.

KIRBY J: I think I now know - - -

MR SPIGELMAN: In terms of political systems our closest neighbour is New Zealand, and there is no doubt, in terms of models that can inform debate within Australia, New Zealand is the closest model. However, there would be no doubt whatsoever that the principles in this case would apply if the President of Indonesia or the Prime Minister of Papua New Guinea were to sue in the courts of this country for allegations of political corruption in each of those cases. We frequently have articles in our media about that matter, and we submit - I do not want to suggest, lest one adds to the particulars of aggravated damage, that the words I have just used are applicable to what Mr Lange did in this case.

There are those parallels. One has only to think - also if your Honours have this noticed this news, that President Saddam Hussein has instituted a libel action in France. These are the matters we believe that - our ability to discuss the internal affairs of other countries is a matter for freedom of political communication within this country, even though we are discussing what might, on its face, be only the internal affairs of that other country. If I can turn to the question of qualified privilege - - -

McHUGH J: Just before you do, can I raise a matter with you that links your argument on the way that the "Theophanous immunity" operates in qualified privilege. If you go to page 140 of the judgment of the Court, it seems to say that even if you enacted a New York Times v Sullivan defence it would not comply with the constitutional freedom and would be invalid. The Court - - -

MR SPIGELMAN: Sorry. Does it say invalid?

McHUGH J: Well, it does not say that in terms, but that must be the effect of it because it says:

The public at large has an interest in the discussion of political matters such that each and every person -

can communicate with those persons:

It is an interest which exists at all times.....It follows that the discussion of political matters is an occasion of qualified privilege. Even understood in this light, the common law defence does not conform to the constitutional freedom.

So what - - -

MR SPIGELMAN: I am sorry, what it is saying is that the common law defence is not the same as the constitutional freedom and it may be narrower. It does not say "conformed". The constitutional freedom in this case is not a "cover the field" thing. It does not say you have this defence and you have no other.

McHUGH J: No, but is it not saying that even if you have a common law defence that says it is an occasion of qualified privilege to publish material on political matters it does not conform to the constitutional freedom?

MR SPIGELMAN: The use of "conform" does not mean that it is at any time relevant for a common law defence to comply with the freedom. What it is saying is that it does not cover the field of the freedom. "Conform" is not being used as saying that common law defences are obliged to comply with the freedom or they are struck down.

TOOHEY J: You need to read the next sentence, I think, Mr Spigelman, to see the passage in context.

McHUGH J: Well, in its context it says:

the freedom requires no more than that the person who publishes defamatory matter -

et cetera. It has got to be false and the reason the Court seems to be saying that is because the common law defence could be struck down by malice which would include, among other things, ill will, improper motive or relevance.

MR SPIGELMAN: That is so, and they are not relevant questions.

McHUGH J: Yes, I know that.

MR SPIGELMAN: For the constitutional - - -

McHUGH J: It seems a far-reaching defence so that if the New South Wales Parliament enacted New York Times v Sullivan it would seem that it would not comply with the defence.

MR SPIGELMAN: If the New South Wales Parliament enacted New York Times v Sullivan it would be a defence which would overlap to a substantial degree with the constitutional freedom, but would not be coincident with it.

McHUGH J: It means it is meaningless. It gives you no protection, no protection - - -

MR SPIGELMAN: It is not a question of giving - it would give you such protection - well, it would give you, depending on what "public figure" meant - you would need to put in a definition of "public figure", but it would give you this - what the constitutional freedom does not give you, and New York Times v Sullivan does give you, is an ability to discuss the sexual proclivities of a public figure. They are not government and political matters, we would submit.

McHUGH J: At least in relation to political matters - - -

MR SPIGELMAN: In relation to political matters it would not give you any more.

McHUGH J: - - - this constitutional defence goes beyond New York Times v Sullivan?

MR SPIGELMAN: Yes, because it is not restricted by "public figure" if "public figure" is a relevant restriction of any practical character.

McHUGH J: Not restricted merely by that, but malice does not defeat it.

MR SPIGELMAN: Malice does not defeat it. Namely, yes, no, what it is saying is that it is consistent with the preservation of the system of government for which the Constitution provides for somebody who is motivated by ill will to publish something as long as he acted reasonably in the circumstances, and the other tests. He may be motivated by ill will, and many, many, people in political discourse are motivated by ill will.

McHUGH J: Or by improper motive?

MR SPIGELMAN: Ill will is a description of improper motive. If you are doing it because you hate the other guy, that is fine according to this and that is, may I say, one of the things - - -

McHUGH J: And even though the defamatory matter is not relevant to the discussion of political matters?

MR SPIGELMAN: Well, it would be hard to identify an irrelevant communication as being reasonable in the circumstances. If your Honour pleases, is that a convenient time?

BRENNAN CJ: Yes. Court will adjourn until 2.15.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

BRENNAN CJ: Yes, Mr Spigelman.

MR SPIGELMAN: Your Honours, on the subject of qualified privilege, in the additional authorities which we handed to your Honours we gave a list of cases which we say indicate a broader availability of qualified privilege for a publication to the public. We wish to add one case to that list, and I believe your Honours have had made available to your Honours this morning an unreported decision of Lange v Atkinson and Australian Consolidated Press which Mr Jackson has caused to be distributed to the Court.

It is a decision last week in the High Court of New Zealand. The Lange in question is the same person who is before the Court as a plaintiff in the proceedings. I am not suggesting that there is any estoppel issue here, however a similar question arises and it is the force of the reasoning of her Honour Justice Elias on which we would wish to rely. We could not have put this better ourselves. Can I take the Court to page 33, the fourth line:

Comment upon the official conduct and suitability for office of those exercising the powers of government is essential to the proper operation of a representative democracy. Political discussion in a democracy inevitably on occasion will entail the making of statements which are likely to injure the reputation of others. Qualified privilege in my view attaches to statements made to the general public about matters of government. It is necessary for the public to be informed about these matters for a representative democracy to function.

I am of the view that it is for the "common convenience and welfare" of New Zealand society that the common law defence of qualified privilege should apply to claims for damages for defamation arising out of political discussion.

She said she agrees:

with the conclusion of principle reached by the six Judges who considered the mater in Theophanous and Stephens . "Political discussion" is discussion which bears upon the function of electors in a representative democracy by developing and encouraging views upon government. Although a formula such as this is necessarily imprecise until applied in context, I do not think such imprecision is a serious flaw when the categories to which qualified privilege attaches have never been closed. In Theophanous members of the Court expressed the views that the privilege could extend to information about the public conduct of those involved in political debate, whether or not they are elected or are public officials. There may be difficult cases where a private person is swept involuntarily into political controversy or where a public official hold a minor office. So too, difficult boundaries may have to be drawn between private conduct and conduct which bears upon fitness for public office. But there is nothing very new in that. The defence of honest opinion turns on identification of matters of public interest which have thrown up comparable distinctions. The cases have drawn lines between what is of legitimate concern (because of affecting the public at large) and what is of mere curiosity or titillation.

And it refers to an authority:

In the case of political discussion, impact upon the functions exercised in a representative democracy by the people governed seems a surer standard than is available for the wider concept of "public interest". Whatever the exact scope of privilege, in my view it clearly applies to discussion about the performance in the highest political office of an elected representative and political party leader. That conclusion is largely determinative of the present application.

And on the last page, page 40, under "Conclusion":

For the reasons given, the application is dismissed. Qualified privilege attaches to political discussion communicated to the general public. "Political discussion" is discussion which, by developing and encouraging views upon government, bears upon the function of electors in a representative democracy. It is clearly available in the case of discussion about performance in high political office. The defence is available equally to individuals and the news media. Whether the defence is made out in the present case cannot be decided until trial -

et cetera. Your Honours, we rely on that reasoning, and of course this case goes beyond just the reasoning, it proves two things. First, it proves that there is a God and second, that God has a sense of humour. But we do rely on the reasoning in this case.....directly. The pleading in this case seeks to confirm the category of qualified privilege established in the joint judgment in Theophanous at page 140, which is reflected in order 3, an order in which all four members of the majority joined. Order 3, we say, is a part of the ratio of Theophanous, a different part to the part that I described earlier for purposes of a constitutional defence.

KIRBY J: What did her Honour mean by the "six Justices"? What was her reference?

MR SPIGELMAN: I am not sure, your Honour. She analyses the cases earlier in the judgment, and I confess that I have not read it, having only got it this morning. I should add to the Court that Mr Reynolds asked me to indicate to the Court that he only got this case this morning, too.

Could I take your Honours to the case stated book, at page 58, which are the particulars of the defence of qualified privilege. The first matter identifies the subjects, the second matter says that there is a duty to publish, and the third matter says that there was a reciprocal interest in receipt. As we understood what Mr Reynolds' submissions were, he does not quibble with (ii) and (iii). As to (i), he says - the particulars are that:

subjects of public interest and political matters.

And it is both. That is the important thing. At one stage in my friend's submissions, he may, by error, have referred to "public interest or political matters". But that is not the pleading, and it is not the submission we make to the Court. It is not any matter of public interest which we are asserting is within the privilege that we wish to establish in this case. It is only that subcategory of matters of public interest which can be described as political matters to which we say the privilege ought extend.

So, the words "political matters" should be understood as words of limitation. This is a dual test. It may be that one did not need the words "public interest", but they have a certain application in this area of the law. But we regard the words "political matters", as here pleaded, as words of limitation and, accordingly, we are not within the test which has so often been recited that the qualified privilege does not extend to matters of public interest.

That has been said on many occasions. We acknowledge those in our written submissions. The fact that there are such authorities is referred to conveniently and a number of them are referred to in your Honour the Chief Justice's judgment in Stephens at 244 point 5 and 250 point 2 and also in the judgment of Justice McHugh at 261, that is to say there are authorities which establish that mere publication on matters of public interest does not establish a qualified privilege. Those authorities include Loveday v Sun Newspapers which are the ones quoted.

The earlier authorities are usefully collected in Morosi v Mirror Newspapers to which we have given reference in our written submissions, particularly at 778D and 791D, but we are not challenging those cases because we are propounding a more limited form, namely, the dual test of public interest and political matter. We do not believe there is any authority directly on the point but, of course, there are numerous cases which refer to the fact that the circumstances in which publication to the public at large will fall within qualified privilege are limited and those references are generally understood to have limited the extent to which the privilege can be relied upon for publication by the media to the public at large and so there is no question that what we are seeking from the Court is an extension of the present law. When I say that, we are seeking for the Court to affirm the extension we say already happened in Theophanous.

KIRBY J: Where the Parliament of New South Wales has taken the trouble of enacting a provision to deal with qualified privilege, which provision was generally regarded to be one designed to liberalise the law and extend it and has been so interpreted by the courts, why would a court applying normal principles extend it still further where Parliament has held back from doing so?

MR SPIGELMAN: To begin with may I say we would question that the courts have construed that as liberalising the common law. It has been a provision of exceptionally limited utility.

McHUGH J: It may have, but - - -

KIRBY J: The question remains.

McHUGH J: One does not require reciprocity. One has to come within it. It is a defence that theoretically is available to a newspaper. In fact, in terms, it is very difficult to distinguish it from the constitutional defence.

MR SPIGELMAN: It may be, by reason of it imposing a requirement of reasonableness of some character, though hitherto that requirement of reasonableness has proven exceptionally difficult to make out.

KIRBY J: Did it not grow out of the New South Wales Law Reform Commission Inquiry into Defamation?

MR SPIGELMAN: I believe so, your Honour.

KIRBY J: So that we have got a Commission that recommended it, a Parliament that adopted it, courts which have construed it at least, in my understanding, in a way that was broader than the previous law and was regarded as liberalising the law of qualified privilege. Now we have got a suggestion that this Court should push forward the common law to a wider defence. That is an uncomfortable notion, given that Parliament relatively recently in New South Wales looked at this and said what the people's representatives in Parliament thought the law should be.

MR SPIGELMAN: Yes. My first response to that is, of course, that this is a Court which lays down the law for the whole of Australia. We are here dealing with not a constitutional issue, we are here dealing with a common law issue. If the Parliament believes that the Court has developed the common law - Parliament of New South Wales, as distinct from any other of the State Parliaments, believes the common law allows too liberal a regime, it can fix it. That is obviously subject to the constitutional measure but I am not here addressing the constitutional issue.

So, that if the Court declares that the common law for Australia should be different to what is hitherto been believed to be, we say until Theophanous, then what we submit is that the Parliament can fix that if it wishes. We are not here dealing with any barrier. The political matter in the sense that we are using it here is obviously of the same level as I have addressed it with respect to the constitutional defence. We say this is quintessentially the kind of matter in which the balance may be struck, the balance between freedom of speech and reputation.

McHUGH J: What do the words "in the course of" in the defence mean? Do they have a temporal connotation or must they be relevant to the discussion of political matters?

MR SPIGELMAN: That is to assert that it was published, not only on an occasion of privilege but within the occasion, but we did not go beyond the occasion and that is a separate limitation. It is the relationship of relevance if your Honour pleases, namely the publication was relevant to the occasion of qualified privilege.

McHUGH J: So it is not sufficient that it was merely published in the course in a temporal sense of discussing political matter?

MR SPIGELMAN: No, it is that the publication was on the privileged occasion. That is what I understand those words are intended to pick up. That it is not just that the occasion was one of privilege but the actual act of publication was within that. We say basically there are three limits and, particularly, your Honour the Chief Justice and Justice McHugh are very concerned in the judgments in Stephens on this matter with what are the limits and we say there are three critical limits: first is the limit of political matter; second is the fact that the publication has to be on the occasion of privilege. It has to be for the purpose of the political discussion.

McHUGH J: It does not say that. It says "in the course of".

MR SPIGELMAN: We say that that is what that means, but may I say this - - -

McHUGH J: There are defamation statutes with a history "in the course of" or "for the purposes of".

MR SPIGELMAN: May I say this, your Honour. If this a defence of qualified privilege, then that rule must apply to it. Whether we have pleaded it well enough, it does not matter. If the occasion of qualified privilege extends as far as we say, then we are subject to the limitation that publication must be relevant and appropriate and within the privileged occasion. I will come to that in a moment. The third limitation is of course malice, of which your Honours are aware. But they are the three primary limitations.

KIRBY J: I do not see in your written submissions - perhaps you are going to give it to us now - the point of distinction between the privilege that you would gain by extending the common law along the lines of Theophanous and the privilege that you gain by section 22 of the New South Wales Act. I would like to understand very clearly what it is that you do not gain by the present statutory defence in New South Wales. I take your point about speaking to the whole of Australia on the common law, but it would be important, in view of the way you have limited your case, for me to look at how you distinguish between the statutory defence in New South Wales and what you say is the common law defence.

MR SPIGELMAN: The crucial distinction is reasonableness of conduct, that we bear the onus of establishing reasonableness of conduct, as distinct from aspects of reasonableness of conduct being relevant to the issue of malice on which the plaintiff bears the onus.

KIRBY J: Another distinction may be that it is enough on the disjunctive theory that you are speaking on anything of political or governmental concern, as distinct from a matter that people have a legitimate concern to receive.

MR SPIGELMAN: Your Honour, I do not believe that the answer to question 1, whether it is disjunctive or conjunctive, is crucial to question 2 which establishes the privilege.

KIRBY J: No, one is what you get; the other is what you have to prove to get it.

MR SPIGELMAN: No, your Honour, we are dealing with - 1, is a defence of a different character; it is an alternative offence to qualified privilege, and 3 establishes the defence of qualified privilege in similar terms. Of course, it goes without saying that there has to be a legitimate interest in the audience for qualified privilege - a duty to publish, and an interest to receive, and it may be that it is that element rather than the identification of the subject matter to which your Honour is directing my attention.

I had not quite said this, that this was inherently of a character where the balance may be struck differently at different times, but that is a reference to the formula varying conditions of society which comes from Wason v Walter and it is quoted by your Honour the Chief Justice in Stephens, pages 240, 242 and 251, and by your Honour Justice McHugh at page 264.

The crucial issue with this is whether or not the time has come to recognise or confirm what their Honour in the majority in Theophanous thought only two years ago, that the common convenience and welfare of society is best served by allowing a defence of this breadth - and we acknowledge it is a broad defence - subject to, in particular, the three limitations to which I have referred, and no other limitations. I know two of your Honours have indicated other limitations are appropriate.

McHUGH J: I know. In Stephens I was trying to expand the defence to cover political matters in saying that ordinary members of the public do have a relevant interest in receiving information on it, but having regard to the fact that the hypothesis is that, ordinarily is, that you are publishing false, defamatory imputations about somebody, what conditions should be imposed on the publisher and I was groping for some sort of limiting factor and I used the term "special knowledge". Now, it has its problems, but I am afraid I could not think of any other limitation apart from one that just gave everybody an open opportunity just to defame people and whether they were stupid, ill-informed, or otherwise, they would have a defence as long as they were acting honestly; they believe what they said, no matter how false or how damaging the material was, and even though they had no basis for it.

MR SPIGELMAN: Could I just take your Honour's opening words there. The operating hypothesis is that you are publishing false defamatory imputations of somebody. That, with the greatest respect, your Honour - as your Honour is well aware - is asking the wrong question and it is focusing on the wrong point of time. It is, with the greatest of respect, the perspective of a defamation lawyer who is focusing on a point of time the proceedings are extant. At the relevant time for deciding what is in the common convenience and welfare of society, one does not know that it is false, and one does not now that it is defamatory.

McHUGH J: Well, we must accept that because looking at it objectively in society, this is the hypothesis.

MR SPIGELMAN: No, it is not the hypothesis, and that is the important thing. It is very important, from the point of view of what is the common convenience and welfare of society, not to weigh in the balance the interests of the private reputation and the matter that is, by that stage perhaps - by the stage of proceedings known to be false. The crucial thing is what is not published at all. The common convenience and welfare of society is to be judged by what is never published; not what is published and its effect on a private reputation.

The reason for this is, at the time the relevant decision is made, one does not know falsity. The question is, is the common welfare and convenience of society so adversely affected by what the American's call a "chilling effect", namely, the things that are never published at all, that the risk, at the end of the day, to private reputation is outweighed. Your Honour, in a defamation proceeding one only - - -

McHUGH J: But can I just interrupt you to say this turns the common law on its head. Qualified privilege was a very late development in the common law. It could probably be traced back to the first decade of the 19th century. So, you start with the proposition that reputation is sacrosanct, and you are looking for rights that would enable people to publish material that defames somebody. It just seems to me historically indefensible to say that you do not look at injury to reputation as a relevant - - -

MR SPIGELMAN: I am not saying you do not look at it. May I say negligence was also a very late development in the common law and has now wiped out Rylands v Fletcher.

McHUGH J: Well, in this country.

MR SPIGELMAN: So, these developments occur. What we are saying is, of course one weighs in the balance the injury to reputation. But what one does not do is to weigh on the other side of the balance, as your Honour put in that opening sentence a moment ago, that a starting hypothesis is that you have got a defamatory imputation which is false, because what that is focusing on is - - -

McHUGH J: I will correct that. Your criticism is correct. It should have been "may be false".

MR SPIGELMAN: Who wears the risk of proving the truth is the relevant question. And whether or not the balance between those two conflicting public interests - and they are public interests, we accept that - the public interest in protecting reputation and the public interest in communication on political matters. Where should that line be drawn by reason of the inhibiting effect on media from bearing the risk of proving the truth?

BRENNAN CJ: Then that raises a problem of prudential judgment and financial risk. Surely the legal question is whether or not at the moment of contemplated publication there is an allegation which is known to be damaging to a person's reputation and the content of the allegation is not known to be true. In what - - -

MR SPIGELMAN: The content may be believed to be true.

BRENNAN CJ: That is the point. Is that the ground of defence? In other words, is it in the public interest that an allegation of this kind should be published and that the person who publishes it should be protected? If it is published with a belief in the truth or if it is reasonable or however one wishes to put it, but surely it is that question, not whether or not there is a chilling effect. That is a question for the boardroom.

MR SPIGELMAN: No. We submit it is the chilling effect that is the effect on the common convenience and wherefore of society, namely, in the balance, whatever it may - - -

BRENNAN CJ: Does that mean that timorous publishers have a greater right to protection than those who are more emboldened or who research more thoroughly?

MR SPIGELMAN: No. The identity of the publisher, we would submit, is not a determining characteristic but the kinds of decisions that are made, and that we outlined in paragraphs, I think it is 80 and 81, the kinds of matters there are matters that are of relevance to all publishers. That is, at it were, the adverse effect on the interests of society, namely, a common convenience and welfare of society that, whether timorous or not, matters are not published.

McHUGH J: Yes, but it becomes, I think, as I you said yourself, a question of who is going to bear the risk? If a publisher says, "I'm not prepared to bear the risk of having to pay damages if this turns out to be false," that is one thing; obviously a matter to be taken into consideration. On the other hand, what is the effect if somebody is falsely disparaged? That person loses the ability, or may lose the ability, to enter into valuable transactions. As I said a couple of days ago, we all self-present ourselves to the world and we gain a reputation which enables us to enter into transactions, sometimes of a business nature, sometimes of a personal nature, and if somebody falsely damages our reputation we lose the opportunity to enter into those personal and business transactions. If truthful information is published about a person, then it improves the operation of the market, whether we are talking about market for business or market for personal relationships, but damage is done by the publication of false material. The question is, who ought to bear the risk?

MR SPIGELMAN: Yes, your Honour. It is not part of our case to disparage the significance of personal reputation or the public interest in personal reputation. Our case is to shift the balance between that and another public interest. Your Honour put to me that if one publishes truthful information, then the marketplace, as your Honour puts it, is enhanced.

There is a difference, however, between having truthful information and, first, being able ever to prove that that information is truthful and, secondly, and perhaps most significantly, to believe in advance that one can prove it is truthful and to be prepared to bear the costs of doing so.

McHUGH J: I know, but if untruthful information is put into the market then the market becomes distorted and even in a political sense. One only has to look in the United States as to what the prices had to be paid by individuals, Helen Gahagan Douglas and other people, absolutely ruined politically because false information is put out about their political reputation.

MR SPIGELMAN: There can be no public interest in the publication of untruthful information. There is, however, a public interest in the publication of all truthful information and our basic position that we put at this time is that the balance as it is presently struck or was struck before Theophanous, that balance prevents truthful information getting into the marketplace and the reason for that is because you cannot actually prove the truth or because you are not prepared to bear the costs and burdens of doing so.

McHUGH J: Yes. I know this argument is always put forward and no doubt those of your experience and myself know more about it but, Mr Spigelman, I acted for a large newspaper organisation for 16 years and there was not too much that was not published by reason of any chilling effect.

MR SPIGELMAN: Is your Honour about to take an oath or do I - - -

McHUGH J: Maybe there are stories and occasionally there are things that one cannot publish, maybe one cannot publish everything one wants to do but there are usually ways of getting around it.

MR SPIGELMAN: That is because that particular publisher was exceptionally well advised at the time, your Honour.

GAUDRON J: But your argument, Mr Spigelman, surely is not about shifting the balance. It is about who has got an interest. I mean, ultimately it is a question, I should have thought, whether notions relating to duty and interest have been properly applied.

MR SPIGELMAN: We submit that they have not been.

GAUDRON J: Rather than any question of an extension of principle or new balance being struck, it is really about whether there has been a proper analysis of that issue.

MR SPIGELMAN: If your Honour pleases, I do not think it has been, until comparatively recent times, that the extent of a duty to publish to the public at large has been acknowledged. But it is acknowledged now, and that is really the main point we wish to make. Over the decades there is no precise point where transitions like this occur. The publication to the public at large has become one of the principal mechanisms of accountability in our political system. It was not once. Life was much easier; life was much more local. Modes of communication were limited to pubs and drawing rooms and matters of that character. People were able to ask questions in Parliament about the full range of relevant political issues. That just no longer happens. The media no longer are - - -

BRENNAN CJ: That is one way of putting it. The other way perhaps is to see that in earlier times what was reported was what happened. Now what is reported is comment.

MR SPIGELMAN: Well, there is comment, and may I say your Honour in Stephens drew a very sharp distinction between reporting what a third party has said on a political matter and, as it were, the media speaking in its own voice. Political commentators are, we submit, an essential part of our process now and have been for some time.

McHUGH J: I know, but until relatively recently most newspaper articles were published without a byline, for example. Those who had bylines were super As, the top of the crop. One may well be prepared to put one's faith in the ability of journalists of that quality and extend the rule. But you are asking us to make a rule that anybody at all can say anything defamatory about a politician and, as long as they do it reasonably and honestly, that is sufficient, no matter how ill-informed they happen to be.

MR SPIGELMAN: The reason for that - - -

McHUGH J: It is not merely media, of course, we are talking about. Not super As but anybody at all.

MR SPIGELMAN: In our written submissions, we indicate in the alternative an acceptance of your Honours' limitation about persons with special knowledge but our first and primary proposition is, in a democracy, one does not have to be an expert to be entitled to make a comment.

McHUGH J: No, and I am not wedded to the idea of special knowledge. It is a question of groping for some criterion which would enable a widespread dissemination of public information and yet put some check on it. May be reasonableness is, is it? It depends, I suppose, on how you have interpreted reasonableness.

MR SPIGELMAN: We do not advocate reasonableness because it has proven so useless in section 22 in New South Wales.

McHUGH J: Yes, I know.

MR SPIGELMAN: Could I just develop the theme about the change over the decades and, in particular, in the context of what your Honour the Chief Justice said in Stephens about only reporting third party comments. It is simply not the case that the only process of questioning relevant to our system of political accountability is question time in Parliament or Parliamentary committees and that manner. It has long since been the case that media are used in a widespread fashion by ministers, by persons attacking them, by interest groups, to set the agenda.

GUMMOW J: And indeed to leak secret material.

MR SPIGELMAN: Leaking is only one thing.

GUMMOW J: It is nevertheless a fact of political life; including Cabinet secrets too from time to time.

MR SPIGELMAN: Just after this Court handed down a decision in the Northern Land Council we had that series, Labor in Power, about Cabinet secrets, about where the entire Cabinet went on national television and said what had happened. It is a process where the media had been added to other forms of debate - when I say that I do not just mean Parliament - I mean the drawing rooms and the meeting halls and all of the traditional mechanisms which were smaller scale, which were not - in a less complicated society and a society which was smaller, where modes of communication were more locally oriented, and where the mechanisms of political decision making were more local that we now have a society where widespread dispassion and widespread debate is the norm. So one cannot say that the media ought to be restricted, for example, to publishing press releases.

McHUGH J: I know. But you keep referring to the media. Justice Deane, in his judgment, was concerned to talk about the ordinary citizen. That is what he was concerned about, the ordinary citizen.

MR SPIGELMAN: What I am trying to do is to say where, in what circumstances, should the publication to the public at large be justified? When I say "justified", your Honour, I am referring to qualified privilege.

McHUGH J: Yes.

MR SPIGELMAN: What I am saying is that changes in society and the way we communicate politically and the way we establish accountability of our elected representatives is now different to what it once was.

GUMMOW J: The other side of that is a certain amount of manipulation of the media, is it not?

MR SPIGELMAN: One is tempted to say it is not dissimilar to things that might happen in Parliament and other matters. Indeed, one of the changes that has occurred is the dominance of the executive over the parliamentary process and your Honour the Chief Justice referred to that in that article "Court decisions and the Law" 65 ALJ 32 at pages 34 to 35, and that is a change, and it is a material change, we say. The media is used as a point of first recourse for a large area of political debate in this country by persons in government, by persons attacking government, by representatives of communal organisations, and that matter. The publication to the public at large bears a different quality to publication when, in the middle of the 19th century, one had an electorate which was - when these rules and principles were first established, one did not have universal suffrage, one had the very beginnings of mass publication newspapers, but only the beginnings, and to a community which was not universally literate.

McHUGH J: What about The Times under Lord Northcliffe? Or the man Chester Guardian in the last centuries? I mean, they were at the heart of political issues. They backed politicians. In this country we have had the same. David Syme backed free trade against New South Wales media which was in favour of protection. That has been going - - -

MR SPIGELMAN: I am not saying the process did not start, and I thought I, in fact, said it did start during this period, but it is accelerated and one of the reasons why it is more significant now than it was then is that the scope and range of matters of political discussion have exploded. I mean, it is inconceivable today that the Prime Minister of this country could get on a boat with the Australian cricket team and travel for six weeks to England. It just could not happen now. The reason for that is the scope of matters that the Prime Minister has to attend to and the issues - may be it could happen - has exploded. It is quite different to what it was even three or four or five decades ago.

That has meant that the existing mechanisms of accountability, being the parliamentary mechanism of parliamentary committees, no longer cope with the load, and not coped with that load for a considerable period of time. Publication to the public at large is now part of the mechanism and process of political accountability in this country in a way which it was not some time ago. For that reason we say that even the media speaking in its own voice is permissibly within the scope of conduct - not simply reporting what happened elsewhere. Perhaps the most important single mechanism for political accountability in this country is that on every single day, probably Sundays included, there are literally hundreds of people in the political process being asked questions by journalists with a view to the publication of their answers in some manner or form. That process, we say, is now an essential part of our process of political accountability. It is more significant in total than what happens in the direct parliamentary questioning process - an inquiry and investigative process - and indeed, is one of the major sources of information and ideas for that more formal process.

KIRBY J: You are asserting the media is above Parliament, really.

MR SPIGELMAN: No, I am not.

KIRBY J: You are saying that the media today is the more relevant political institution even than Parliament is.

MR SPIGELMAN: It is the more used, not the more relevant, your Honour.

KIRBY J: It is hard to reconcile that with the Constitution.

MR SPIGELMAN: Your Honour, we submit that by reason of the scope and detail of matters that are - and the speed of contemporary communication - parliamentary mechanisms of face-to-face communications amongst small numbers of people are not coping with the whole of the load. They have to select what they focus on, and I am not suggesting for a moment that they do not select properly, but they cannot discover all of the sorts of things that are necessary to maintain the government on an even keel; namely, parliamentarians in the opposition, for example, need the additional resources now because of the large number of areas of decision-making, and the complexity of that decision-making process. Not even parliamentarians, with all the resources they have by way of research assistants and the like, any longer cope with that load. The circumstances in which the media, as a whole, are able to develop ideas, information, discover matters, is now a sufficiently significant part of our democratic system for it to be recognised that publication to the public at large is more frequently justified than it used to be.

BRENNAN CJ: I can understand the force of that submission, Mr Spigelman, but the very force of it carries within it the requirement of great caution about extension of qualified privilege because what you are saying essentially, and it is no doubt true, is that the influence of the media is immense - not only quantitatively, but qualitatively different from what it was some generations ago. Equally, there is a risk of manipulation of, and manipulation by the media, such that individual reputation, and indeed, institutional reputation, might be difficult to maintain. In those circumstances, if this Court is bound to consider any development of the law of qualified privilege, the factors that you refer to must surely mean it must be now reconfined.

MR SPIGELMAN: We submit what we are discussing - your Honour uses the word "influence", we would use the word "contribution to the process".

BRENNAN CJ: Call it what you will, the contribution is one which is calculated to achieve a variation of opinion.

MR SPIGELMAN: No, not always.

BRENNAN CJ: I am not saying in terms of intent or purpose, but result.

MR SPIGELMAN: Well, it may contribute to the formulation of opinion by others, without presenting an opinion at all.

BRENNAN CJ: It may, or it may do otherwise. It may endeavour to set out, either expressly or implicitly, and the function of a subeditor cannot be overlooked.

MR SPIGELMAN: Yes. Can I say this? In terms of drawing the balance, we submit that the effect - by reason of the significance of the role the media now play, what we are asking the Court to do is to permit the media to play that role without the restrictions which are currently imposed on it. Now, what they are hoping to be able to do is to play the role more effectively.

McHUGH J: But that does not go far enough for your purposes. Arguably, there is a strong case for extending qualified privilege to include fair reports by the media of statements by politicians and official spokesmen, leaving the persons who make the statements at risk. That, itself, is the check. But that does not go far enough for your purposes, does it? You want to go much further than that.

MR SPIGELMAN: We do.

McHUGH J: No doubt you would grab the fall-back position.

MR SPIGELMAN: And we have made, in our submissions, an alternative submission adopting your Honour's position - and just noticing the time - obviously that may have the consequence that we lose this particular case because of the nature of the pleading here, because the pleading here is framed in the broad sense of political matter.

GUMMOW J: Yes, the pleading here would not answer your paras 118 and 119, would it, of your written submissions?

MR SPIGELMAN: No. Yes, we do. If you look at 118(i):

(whether arising out of the Australian system of government or at an international level)

We would intend that to encompass the plaintiff. And, if one looks at (iv) - there may be an ambiguity here.

GUMMOW J: It says "duty or interest"; (iv):

had an apparent duty or interest - - -

MR SPIGELMAN: (iv) is meant to be, as it were, an alternative. (i), (ii) and (iii) are meant to apply to comments - if there are any comments - by us directly. (iv) is saying, with respect to any comments attributed to somebody else, this is the test. Whether or not as a matter of fact the matter complained of falls within this test is really not a matter for this Court. The question is whether or not the pleading is good in law.

GUMMOW J: Yes. What about 119, which I think - - -

MR SPIGELMAN: 119 is the alternative, which is limited to special knowledge, in the sense that in (i) - that is the difference between 118 and 119. May I say, that may be true of some of the imputations alleged and not others, depending on who made the statements on which the imputations are based. But 119 is not the form in which the pleading is before the Court. There is no reference to special knowledge in our particulars. So in a sense if 119 was the option, then the answer to the second question would be no.

GUMMOW J: Yes.

MR SPIGELMAN: I have indicated, your Honours, already why your Honours the Chief Justice and Justice McHugh in Stephens indicated a concern with the question of balance and drew the balance in slightly different ways. I do not think I wish to add anything other than to identify the fact that there are three matters of restriction here again, the very concept of political matter, and to emphasise the nature of the matter in this case. If one looks at the imputations, which is at pages 2 and 3 of the case stated book, every one of those imputations, we say, is at the very heart of the political process. Namely, they are about financial dependence. Your Honour the Chief Justice in ACTV, at page 159, had something to say about that, in the context of whether or not the Act, namely, limiting political advertising, prevented financial dependence on other sources and whether it therefore progressed the democratic system.

Here we are dealing with imputations which are of that character and are at the heart of the political process. They are about the conduct of officials on matters of public policy. They are not about some aspect of the private life or personal characteristic and whether that has some effect on fitness for office. We wish to emphasise the well- known passage in Adam v Ward (1917) AC 320-321- I do not invite your Honours to get it - it is a very short passage:

Anything that is not relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege will not be protected.

It is the restriction of relevance. When one is broadening matters as wide as our political matter submission goes, then we say it may be that that restriction of relevance, of being within the privileged occasion, has more work to do than it may have had in the past with respect to other occasions of privilege, and we emphasise that being within the privilege occasion is a real restriction. Finally, there is the question of malice.

Could I conclude by referring to my friend's reliance on the fact that this is all New Zealand subjects. We say three things. First, we say discussion of these matters in New Zealand is of direct relevance to Australia. By reason of our historical, commercial, social and political ties, we are just so close that these matters are of direct relevance to Australia, not merely about what the politician does but also about what all the companies do, because all those companies have close links with Australia. So we say it is direct relevance to Australia. Of course, as I said in the same point in the constitutional submissions, the relationships with New Zealand are the subject of political decision in Australia. Thirdly, by reason of the similarities of our political and social systems, New Zealand experience is relevant for our debate on the same subject matter. So, for those three reasons, we say the fact that the matter complained of is referable to New Zealand does not take it out of the privilege, if there be a privilege.

We could compare this with the issue that has arisen in the past of fair report of foreign judicial proceedings. The basic case there is Webb v Times Publishing (1960) 2 QB 535 at 563 and 568 to 570. In that case his Honour Justice Pearson rejected the submission that simply - I am sorry, obviously there was a protection of fair report for a British judicial proceeding. The first submission made was, "Well, this is another judicial proceeding. It also ought to be subject to a fair report". He rejected the submission that just because it was a judicial proceeding was not enough. That may be similar to the first point I advanced a moment ago about direct relevance to Australia from New Zealand, but we say that was Switzerland and the relationship between Australia and New Zealand is much closer than the relationship between Switzerland and England.

However, his Honour went on to identify in those foreign judicial proceedings matters of great concern to English - I mean, he was an Englishman who was on trial in Switzerland. The relevant passages are at 563 and 568 to 570 and we say there is an analogy between the circumstances in which the fair report of foreign judicial proceedings would be within a privilege and in which the report of foreign political proceedings would also be relevant in Australia.

Finally, on this subject we adopt the following passages from other submissions on the qualified privilege - - -

McHUGH J: Just before you do, if the Court were minded to extend common law qualified privilege to fair reports of what I will call official statements, what do you say as to the fact that in a number of States the legislature itself has specifically provided for fair reports of various matters such as judicial proceedings, parliamentary committees, Parliament and so on?

MR SPIGELMAN: If they were intended to be exclusive, as I am sure in the Code States they are, they say so, and the Court's decision on this aspect would have no affect; if they were not intended to be exclusive then they are subject to the existing common law and any proper development of the common law. The Commonwealth submissions, we adopt paragraphs 2 point 12 to 2 point 19 inclusive and we understand that, notwithstanding something that was said, that the Commonwealth still does, in fact, support us on qualified privilege and also those of Channel Seven, paragraphs 5 point 4(a) to (h) inclusive. If the Court pleases. I thank for Court for the indulgence and they are our submissions.

KIRBY J: I just have one question, if you do not mind. If you have any reference to academic writing on Theophanous or Stephens or indeed of the earlier cases or any Council of Europe decisions that you think we should look at, I would appreciate having those.

MR SPIGELMAN: I think in the submissions of the various parties there are such references. If we are aware of any that the Court has not already been referred to, we will do so.

BRENNAN CJ: Thank you, Mr Spigelman. Mr Castan, before you commence, I should indicate that the Court proposes tomorrow to go beyond the conclusion of your submissions and to sit until 4.15, taking then the submissions of the interveners according to the time available.

MR CASTAN: If the Court pleases, I should indicate in response that in the light of the way the matter has gone I would anticipate that I would be a lot shorter than the time which is allocated. I can indicate that we, of course, would adopt a large part of what has been put by Mr Spigelman in relation to the authorities generally, though the defamation issues, of course, are not relevant to our case. But we do adopt the substance of most of what was said about the way in which the cases should be interpreted and, equally, we have put at some length submissions that have been vigorously debated in this Court on 6 August. Of course, we do not seek to repeat that which was put then.

I should add to that also that we adopt those parts of the submissions for the Commonwealth which, in effect, as an alternative view of the way in which the matter should be approached, seek to submit that there is an implication which leads to a limitation on power both at federal and State level and which were articulated by the learned Solicitor-General for the Commonwealth and, of course, are explained in considerable detail in those submissions. So we do adopt those as what might be termed an alternative view by which to reach the relevant conclusion. As your Honours will appreciate, for our purposes the relevant conclusion is that there is a limitation operating in relation to State legislative power that affects State laws which impinge on political communication.

Having said that, may I deal with the suggestion that emerged, I think, in the course of discussion with my learned friend, Mr Spigelman, to the effect that perhaps the State of Victoria does somehow or other seek to reopen Nationwide News and ACTV. We had not understood that that is sought and I will give your Honours, I think, seven references to the learned Solicitor- General for Victoria that during any such application he was asked about it at page 33 and said he did not make such an application; page 34 of the transcript, page 39, page 42, at page 57 - - -

TOOHEY J: What about page 44 in the middle, where I asked the Solicitor-General:

Where does that leave the Court, Mr Solicitor, in relation to those earlier decisions?

MR CASTAN: He said:

They stand, your Honour.

TOOHEY J: They stand.

MR CASTAN: I am sorry, did I not say 44?

TOOHEY J: I do not think you did.

McHUGH J: You said 42 and 57.

MR CASTAN: I am sorry. I missed one of those that has been marked for me, so we rely on that one, and at 57, towards the foot of the page and over on page 58.

KIRBY J: I must admit I got the impression at the end of it that the Solicitor-General came here not asking for it, seeking to avoid having to do it, but when pressed said that if it was necessary for the success of his arguments he would seek leave to reopen those cases.

MR CASTAN: No, your Honour, in our respectful submission he did not say that and he should not be permitted to say that, and if that is what he now says, we face a dramatically different situation than that which a very large number of people have come here to deal with.

TOOHEY J: Well, there was some urging that he might say it, but he did not.

MR CASTAN: Yes, it was suggested that it might be necessary for him to say it in order to get his argument home but that is a different thing than adopting - either accepting that it was necessary for him to say it or having accepted that it was necessary, going to the consequential step of saying, "And since it is necessary, I do so apply," because if he did that would have significant consequences in terms of the way in which all of us have come here and based our argument and preparation on what it is we are dealing with here.

BRENNAN CJ: If that is the situation then, no doubt, questions of adjournment or costs may arise.

MR CASTAN: Precisely, your Honour.

BRENNAN CJ: It does not necessarily answer the problem that this Court may have to address.

MR CASTAN: No doubt that is so, but all I put for the moment is that he has not yet so applied and he has said that he does not need to apply because he argues that there are bases on which those cases can be explained that do not lead to that conclusion and that all he needs to apply for is reopening of Theophanous and Stephens. So far we are here on that basis and I just wanted to clarify it because there had been some suggestion, I think in an exchange with my learned friend, Mr Spigelman, that perhaps we really were dealing with some such question and I simply wanted to make it clear that so far as we are concerned we are not - - -

McHUGH J: Well, what about at page 75 of the transcript? Mr Graham said:

that in the context of margin of choice and in the context of appropriateness and adaptiveness, we could win this case without Theophanous and Stephens being considered at all. But we do not shrink from the earlier submissions made that the Court should revisit those cases and that is all the more - - -

MR CASTAN: That is Theophanous and Stephens. I think what I was concerned about, your Honour, was the suggestion that perhaps there is an application to reopen ACTV and Nationwide. We understand that we are here to deal with - - -

TOOHEY J: I do not think anyone is in much doubt about Theophanous and Stephens, Mr Castan.

MR CASTAN: Yes, I think that is clear. That is why we are here and that is why we went off on 6 August, but all I wanted to make clear at the outset was that we do not understand we are here for anything that relates to ACTV and Nationwide. My learned friend asks that I also indicate to the Court what was said at page 58 at line 10 where he there says that:

if and in so far as ACTV is based upon reasoning of the third kind -

and we do challenge that reasoning because we see that as being the source of what was decided -

But it did not seem necessary to attack another decision of this Court when that attack did not seem to be necessary. I am still reluctant to attack the decision in the traditional sense of asking this Court to overrule it, because it does not seem to be necessary. It seems to be possible to justify the decision, even if one does not agree with it, and leave it to stand.

We take that to be an indication by my learned friend that he does not seek to reopen those earlier two cases because he does not have to because there are three possible bases that have been postulated by your Honour Justice McHugh and he does not believe he has to go to the third because he can get by on the first two. If he is troubled by the third and says it has to be overruled, he has to make an application. For present purposes we have not yet heard that application and we would want to be heard if he does make any such application.

Your Honours, the proposition that we would put as a starting point for consideration of this matter is that ACTV and Nationwide News established a limitation on Commonwealth power which applies to protect communications in relation to State politics and elections as well as federal politics and elections and that Theophanous and Stephens are authority for the proposition that the limitation on legislative power enunciated in those two first cases also applies to State legislative power, the latter proposition flowing from the way in which the Court dealt with the application of the decisions to potential application to State defamation laws.

KIRBY J: You say legislative and executive, because we are here dealing with regulations.

MR CASTAN: Yes, although for this purpose the regulation is to be treated as an exercise by the executive of delegated - it is delegated legislation. It is an exercise of legislative power. It is a delegation that we are dealing with, and ultimately the exercise - - -

KIRBY J: But it is a law made by the executive government.

MR CASTAN: Albeit made by the executive government, it is to be treated as a limitation. Perhaps I will put it another way, your Honour, in response - the limitation we contend for applies to limit executive power in so far as it exercises regulation-making power or other power to create delegated legislation.

We had sought to put together a summary of what we say, for relevant purposes for our case, the four cases I have adverted to stand for, and I would seek to hand up a document that summarises the propositions that emerge from the cases as we would contend for.

BRENNAN CJ: We need some more paper, do we, Mr Castan?

MR CASTAN: This emerged from a request - I regret that more paper is being supplied - but it emerged from a request from the Court as to what was the ratio, what were the real holdings that one could find, and we have simply sought to summarise them and encapsulate the holdings in a way that we hope will be helpful to the Court in getting the holdings of each case - or propositions of each case - summarised onto a single page. Because we sought to do that, we had hoped it might shorten what we are going to say. We say, in relation to the application that is currently before the Court - the reopening application that Theophanous and Stephens are correct, at least in relation to the matters that we are concerned with, and I stress that our case does not concern the common law although we are content to respond to, and seek to assist the Court in relation to the way in which the question is being debated about the application to the common law - we say, of course, they should not be overruled.

Perhaps it is necessary to isolate for this purpose, particularly, what was held in ACTV because it is, as we would contend it, that case which makes it clear that the limitation on Commonwealth legislative power applies to protect communications in relation to State politics and elections. It is that case which forms the foundation of the assumptions which have been referred to - reference to the judgments in Theophanous, in particular - the assumptions on which that hearing went forward; the existence of a limitation. May I take your Honours briefly through those propositions as expressed on the second page of the document I just handed up.

It may be convenient if I do take your Honours, not to all of those references, but it is of assistance, I would respectfully submit, to take what might be called the lowest point - I say with the utmost respect - of the articulation of the premise, which perhaps is that of your Honour Justice McHugh; lowest in the sense of the most minimalist construction, if one might put it that way. In ACTV 177 CLR, at page 228, one sees the development of the way in which the propositions are articulated in the judgment of your Honour Justice McHugh. And each of the other judgments, in our respectful submission, takes the matter at least somewhat further than the way in which it was articulated by your Honour.

But the development of the notions behind the implication are an important matter to isolate, because there has been considerable debate about what it is that founds the implication and, if I may say so, with the utmost respect to this Court, considerable concern expressed about whether this complies with what is called orthodox constitutional reasoning, or whether it amounts to some fundamental error, I think was put on the first day of hearing, and whether the Court should correct those matters, if there is fundamental error.

Our contention is there is no fundamental error, and that much of what was said in McGinty represents perhaps a very extreme view of these cases, and perhaps a misappreciation of the way in which the matters developed out of Nationwide and ACTV. At page 228, at the middle of the page, your Honour commences by expressing the purpose of the Constitution. It is expressed:

The purpose of the Constitution was to further the institutions of representative and responsible government.

And there is a reference to Sir Edmund Barton[cedilla] and I will not take your Honours to that, but you see that it is referred to at the 1897 convention. And, at the foot of the page then, the makers of the Constitution is referred to as having rejected the Bill of Rights:

because they believed in the efficacy of the two institutions which formed the basis of the Constitutions of Great Britain and the Australian colonies - representative government and responsible government -

and there is then discussion about Sir Harrison Moore. Then, at point 3:

The share in the government which the Constitution ensured was the right to determine who should be the representatives of the people in the Houses of Parliament.

By vesting -

and the next paragraph is important in the way in which this is developed -

the legislative power of the Commonwealth in a Parliament "which shall consist of the Queen, a Senate, and a House of Representatives"(54) -

and the reference is, of course, to section - footnote (54) is a reference to section 1 of the Constitution -

and by giving the people of the Commonwealth, through ss. 7, 24, 30, and 41, control over the composition of Parliament, the Constitution gives effect to a system of representative democracy.

It is important to take account of this forumation when entering into that debate about text and structure or external implications. The Constitution, on this formulation, is expressed as giving effect to a system of representative democracy and it is said to have been long recognised as a reference, of course, to Justice Isaacs in Munro, who said:

"the Constitution is for the advancement of representative government, and contains no word to alter the fundamental features of that institution."

This is not erecting some freestanding external principle but it is articulating, and it may be that it is a dry exercise to try and determine whether there really is some freestanding principle or is not. What is being articulated here is the essence of what lay being the process of the formulation of the Constitution and, equally, the way in which the words of the Constitution and the relevant sections, some of which are adverted to - 1, 7, 24 and so on - are to be given effect to. Then the next paragraph speaks of:

By vesting of executive power of the Commonwealth in the Queen to be exercisable by the Governor-General -

and so on, as it is put at the bottom of the page:

gives effect to a system of responsible government.

Over the top of the page we find in the judgment, at the fourth line:

The words of section 7 and 24 must be construed by reference to -

so it is expressed as a mode of construction -

must be construed by reference to the conceptions of representative government and responsible government -

that both notions are brought together -

as understood by informed people in Australia at the time of federation.

Again Justice Isaacs, in Kreglinger and Fernau, is referred to:

"it is the duty of this Court, as the chief judicial organ of the Commonwealth, to take judicial notice, in interpreting the Australia Constitution of every fundamental constitutional doctrine existing and fully recognized at the time the Constitution was passed, and therefore to be taken as influencing the meaning in which its words were used by the Imperial Legislature."

So it is spoken of as a matter which goes to inform the constructions.

His Honour went on to say in that case that the principle of responsible government -

there referring to the executive side of the equation -

is "part of the fabric on which the written words of the Constitution are superimposed".

Then a description of what representative government is, this concept that has been articulated as a foundation by which the words are to be construed.

Representative government involves the conception of a legislative chamber whose members are elected by the people.

And a reference then to Birch, 1964, on representative and responsible government.

"we need to add that the chamber must occupy a powerful position in the political system and that the elections to it must be free, with all that this implies in the way of freedom of speech and political organization".

Towards the foot of the page there is the then expressed that this is not to be treated as:

no more than the right to mark a ballot paper.

The last two lines:

The "share in the government which the Constitution ensures" would be but a pious aspiration unless ss 7 and 24 carried with them more than the right to cast a vote.....guarantees.....could not be satisfied by the Parliament requiring the people to select their representatives from a list of names drawn up by government officers.

The next few lines are again significant:

If the institutions -

we have it referred to as a conception and as a historical factor and here an institution:

If the institutions of representative and responsible government are to operate effectively and as the Constitution intended, the business of government must be examinable and the subject of scrutiny, debate and ultimate accountability at the ballot box.

Then there is a detailed discussion of that. The commencement of the next paragraph:

It follows that the electros must be able to communicate with the candidates for election concerning election issues and must be able to communicate their own arguments and opinions -

Towards the foot of the page then:

The words "directly chosen by the people" in ss 7 and 24, interpreted against the background of the institutions of representative government and responsible government, are to be read, therefore, as referring to a process - the process which commences when an election is called and ends with the declaration of the poll.

And that is perhaps the most limited view that has been put. The beginning of the next paragraph, that is qualified:

It may be that the rights to convey and receive opinions, arguments and information conferred by ss 7 and 24 are not confined to the period of an election.....It may be that the rights inherent.....are simply part of a general right of freedom of communication in respect of the business of government of the Commonwealth. In that connexion it is significant that it was recognized early on that.....Constitution gave rights of access -

There is then reference to Quick and Garran and the footnote (69) picks up the reference that a number of your Honours have adverted to in this series of cases and that is, of course, the passages in R v Smithers, Ex parte Benson picking up Crandall v Nevada and the American authorities. Towards the foot of the page we get again the reference to a conception:

Furthermore, one of the conceptions of representative government is that members of Parliament have an obligation to listen to and ascertain the views of their constituents.....This conception strengthens the case for concluding that, by implication, the Constitution gives a general right of freedom of communication in respect of the business of government of the Commonwealth. But it is unnecessary for the purposes of this case to decide whether, by implication, the Constitution gives to the people of the Commonwealth such a general right of freedom of communication. For the purpose of the present case, it is enough to hold that legislation such as that embodied in Pt IIID.....contravenes the right of the people to participate in the federal election process unless some compelling justification for its enactment can be established.

And then to the foot of the page again, the Commonwealth having contended that it has power:

The short answer to the Commonwealth's contentions is that the powers conferred on the Commonwealth by section 51 of the Constitution are conferred "subject to this Constitution" and that the Constitution embodies -

perhaps a slightly different notion now -

a system of representative government which involves the conceptions of freedom of participation, association and communication in respect of the election of the representatives of the people. Under the Constitution of the Commonwealth of Australia, those freedoms have been elevated to the status of constitutional rights. The powers conferred.....give the Commonwealth no absolute power to exclude electors.....electoral process.

Now, there was some short discussion about the use of the word "rights". Your Honours, we have drawn attention to those passages because they are, we would respectfully submit, and I put it as the minimal level at which one would seek to frame the notions that are embodied in ACTV.

It is not necessary for me and I do not seek to, for the purpose of the present contention, go to each of your Honour's judgments in that case to illustrate or make out the notions of what we say the case stands for. It is sufficient to point out that, if I can put it with the greatest of respect, some of the ways in which the matters there expressed do not sit easily with the very critical view that was expressed of what was decided in Theophanous and of the underlying process of constitutional analysis that was expressed in McGinty's Case. In our respectful submission, it is not necessary for the Court to be so critical of those - - -

McHUGH J: Do you think I should go back to ACTV, Mr Castan?

MR CASTAN: Yes, your Honour. If it be the case - we had not understood that your Honour had resiled from or obdured the approach that your Honour had taken or that your Honour's criticisms in McGinty were addressed to Australian Capital Television. What we had understood was that there was a process of constitutional reasoning that was seen as inherently defective but a free-standing implication had been erected and then, as his Honour Justice Dawson has put to me in the course of debate on the previous occasion and to others here, that then there was this implication and then other implications were built on that, and that was the defective process of constitutional reasoning and that, as we have understood it, is said to be the matter of grave concern or the perpetuation of errors, I think your Honour the Chief Justice put it to my learned friend, Mr Graham, on the first day of this hearing.

Now, our respectful submission is that there is no such defective process of reasoning. There is no such grave constitutional error that might be perpetuated unless this Court now sets all this straight, and the choice is, as your Honour the Chief Justice put it, a difficult choice: do we continue with error or do we straighten it out, given the problems of reopening? There is no such problem, in our respectful submission. In our respectful submission this matter can be dealt with relatively simply. The process of reasoning which leads - - -

GUMMOW J: Well, it can be dealt with relatively simply as far as you are concerned, Mr Castan. You want a declaration about regulation 5. That raises the question of reasonable necessity that was referred to on the last occasion back in August with the public interest and protection and safety matters.

MR CASTAN: Adapted and appropriate.

GUMMOW J: Yes. That is what your case is really all about it seems to me.

MR CASTAN: Yes, but I do not get there unless there is such a limitation - - -

GUMMOW J: Well, even it is assumed, you still have to get over that hurdle.

MR CASTAN: If it is assumed, the question is whether it is properly before this Court. I was going to come to that. I mean, there was serious problem (a) as to whether it is properly before the Court, but (b) the basis on which this Court could possibly reach any judgment of appropriate and adaptiveness, if I can coin that awkward phrase, in a case in which there is a demurrer to a statement of claim in which the demurring party, in effect, calls in aid a regulation without any material - and it is in the nature of the demurrer that the defendant cannot put on any material - on which to gauge the degree of appropriateness or adaptiveness of the relevant regulation.

I was going to come to that separately, but I am happy to summarise it. I mean, it cannot evaluate - and there was much debate about this last time - a safety purpose, conceding for the moment that that is the purpose - one cannot evaluate if it is for a legitimate purpose whether it is appropriate and adapted given its effect on what is a conceded impact on the freedom of political discussion. One has to on a demurrer concede what is pleaded by the plaintiff and he pleads that it interferes with political communication. One cannot then gauge - - -

BRENNAN CJ: Well, as a question of fact do you say that is pleaded?

MR CASTAN: That is pleaded.

BRENNAN CJ: But as a question of fact?

MR CASTAN: Yes, your Honour. Perhaps I will leave this and come back to it. What I was going to deal with for the moment is that accepting that the principle that is laid down in the ACTV Case is the principle of the operation of an implication of political communication arising in the way, putting it at its minimum level, in which it was articulated by Justice McHugh in Australian Capital Television, accepting that that is there, does that when applied to in Theophanous contain some - is that the erecting of some erroneous structure in the sense of some erroneous implication from which then other implications are drawn such as freedom of communication?

Now, in our respectful submission, the process by which both your Honour Justice McHugh in the passages to which we have just drawn attention and other members of the Court came to the view that there existed a notion of responsible government which informs the construction of the relevant sections and thereby gives rise to the freedom of political communication, political discourse, that the process by which that notion was developed is the conventional constitutional process and it is entirely in accord and it is of the same nature as the way in which other more familiar perhaps and more long-standing notions have been developed and discussed.

It is interesting to note that your Honour Justice McHugh's articulation deals with the two notions together, responsible government and representative government. One would imagine that as expressed in that way the notion of responsible government as developed is not controversial, or not seen as infected by error or somehow involving some unorthodox or unacceptable process of constitutional interpretation.

May I illustrate what I would respectfully submit is the orthodoxy of the process rather than its error by taking your Honours briefly to the judgment of your Honour Justice Gaudron, firstly in ACTV at page 214, and your Honours will see that at the foot of that page your Honour says:

It is uncontroversial that the federal nature of the Commonwealth and the separation of the federal judiciary from the other arms of government provide the basis for important constitutional implications.

So, what this judgment first does is to refer to two of the well- recognised sources of implications.

The nature and scope of those implications have not been fully determined. However, it is settled that a limitation is not to be implied in the grant of constitutional power if the words of the grant can be construed without it. Thus, but as specified in s 51, "subject to [the] Constitution", the legislative powers conferred by that section must be given their full meaning and operation.

The federal nature of the Constitution -

that, of course, incorporates what has become known as the Melbourne Corporation doctrine:

and the separation of the federal judiciary from the other arms of government are part of the Constitution, even though the Constitution does not contain prescriptive provision with respect to either matter.

We would respectfully submit that that also is an entirely unorthodox expression of the way in which those notions have become accepted as having their operation in relation to the Constitution.

So, too, the detailed provisions with respect to elections reveal that the Constitution is for a Commonwealth which is a free society governed in accordance with the principles of representative parliamentary democracy even though that is not stated in terms. Because s 51 confers power "subject to [the] Constitution", the legislative power conferred by that section is confined by that consideration as well as by the federal nature of the Constitution and the separation of the federal judiciary from the other arms of government. So far as is presently relevant, s 51 does not authorize laws which are inconsistent with the free and democratic nature of the Commonwealth. Thus, but subject to what is said as to regulation, the power conferred by s 51 does not extend to the making of laws that impair the free flow of information and ideas on matters falling within the area of political discourse.

So the way in which your Honour Justice Gaudron has come at the matter is to start by reference to the two historically well- acknowledged notions that inform the Constitution that have been the subject of considerable judicial exposition.

Similarly, if I could take your Honours to the judgment of Justices Deane and Toohey at page 168, their Honours deal with the matter briefly here and it is necessary to go from this passage briefly back to Nationwide News v Wills.

In Nationwide News Pty Ltd v Wills, we explained in some detail our reasons for concluding that it is an implication of the doctrine of representative government embodied in the Commonwealth Constitution that there shall be freedom within the Commonwealth of communication about matters relating to the government of the Commonwealth. The grants of legislative power.....must be construed in the context of that implication and as prima facie confined by its content. The fact that the implication is drawn from an underlying doctrine of the Constitution rather than from any express term means, however, that the implication will itself be overridden to the extent that either the nature of a particular legislative power contained in s 51 or the words in which it is conferred manifest an intention to that effect.

It is necessary then briefly to go to Nationwide News, your Honours, to pick up the basis on which their Honours adopted that notion in ACTV. If I could take your Honours just to a short passage at pages 68 to 70 in Nationwide. I am sorry, it commences at the bottom of page 69 under the heading "Constitutional implications":

There are at least three main general doctrines of government which underlie the Constitution and are implemented by its provisions.

GUMMOW J: That was read to us by Mr Spigelman this morning, I thought.

MR CASTAN: Perhaps it is sufficient to say that their Honours in the major passage on page 70 refer to what I will call the two well-known doctrines and then, about two-thirds of the way down the page, say:

The implication of the Constitution which is of central importance in the resolution of the present case flows from the third of those general doctrines of government which underlie the Constitution and form part of its structure.....the doctrine of representative government -

and so on. Now, what we say flows from this is that the doctrine, or the implication of freedom of communication and the way in which it is drawn in these two cases is not any different than the way in which the other better known and historically longer standing implications are drawn and operate. That is illustrated by the interesting circumstance, if I can put it that way, in this context; that the implication relating to the nature of the federal system, or what I might call the Melbourne Corporation principle is, itself, applied by two of the Judges in the ACTV Case itself.

One gains assistance, it is respectfully put to the Court, by seeing the way in which two of the members of the Court dealt with that other implication in considering the very legislation. The two members of the Court who dealt with it in that way were your Honour the Chief Justice and Justice McHugh. At pages 162 to 163, one sees the way in which your Honour the Chief Justice moved from one implication to the second implication; the second, in this sense, being second in the sequence of logic of the judgment, being the Melbourne Corporation doctrine. Towards the foot of page 162 your Honour says:

The limitation on that power which guarantees a freedom of political communication in relation to the government of the Commonwealth and its territories certainly precludes an exercise of the broadcasting power that would substantially impair the freedom of political discussion essential to maintain the representative governments of the several States. The Constitution is constructed on the footing that each State has a Parliament -

and footnote 64 picks up a number of the sections that have been adverted to, particularly by my learned friend, the Solicitor General for the Commonwealth; 10, 29, 30, 31, 107, 108 and 111:

and an Executive Council to advise the Governor.

There is a reference of course then, interestingly, to section 15, which has been the subject of some discussion over the last three days -

The Constitutions of the respective States are continued as they were "as at the establishment of the Commonwealth". Representative government in the States is a characteristic of their respective Constitutions, and the legislative power of the Commonwealth cannot be exercised substantially to impair the freedom of discussion needed to maintain representative government. However -

and this is the point at which your Honour diverges -

for reasons stated above in relation to s.95B, I would not regard s.95D -

D being the section that applied to State and local elections - banned television advertising - in relation to those -

as trespassing on the freedom of political discussion essential to the preservation of the representative governments of the States. However, another implication drawn from what Dixon J. in Melbourne Corporation v The Commonwealth called "the very frame of the Constitution" bears upon the validity of s.95D.

As the Constitution predicates the continuing existence of the States as independent entities, the Constitution implies that -

and then there is the reference from Victoria v Australian Building Construction Employees' and Builders Labourers' Case.

Although the laws of the Commonwealth can validly facilitate the functioning of States.....a law which purports to control, for good or ill, political discussion relating to State elections purports to burden the functioning of the States with the constraints it imposes. The functions of a State include both the machinery which leads to the exercise of the State's powers and privileges and the machinery by which those powers and privileges are exercised. Some functions are performed by the electors, some by officials of the State. Among the functions of the State I would include the discussion of political matters by electors, the formation of political judgment and the casting of votes for the election of a parliament or local authority. Laws which affect the freedom of political discussion in matters relating to the government of a State, whether by enhancement or restriction of the freedom, are laws which burden the functioning of the political branches of the government of the State with statutory constraints and restrictions. Section 95D(3) and (4) is such a law.

It applies to State Parliaments and so on. So there we see your Honour the Chief Justice having articulated a principle which says that there is a freedom of political communication in relation to the government of its Commonwealth, it precludes an exercise of power that would impair the freedom of political discussion in the States. However, on balance, the view that your Honour has earlier come to is that that is not a relevant impairing, that a restriction is not inappropriate or ill adapted to securing the legitimate purpose of regulating broadcasting and elections, but your Honour goes on to apply what we might call for this purpose the alternate implication or the alternate doctrine that also limits power and so finds the relevant provision invalid by reason of its failure to comply with or its interference with the functioning of the State.

The two doctrines sit easily alongside each other. In fact, they are entirely consistent and, in fact, the logic of the explanation of why there is a relevant interference in State power, notwithstanding that the law in your Honour's view did not infringe what I will call the earlier implication, is perfectly consistent. There is no difference in the way in which the logic of application is constructed. May I take your Honours briefly to the judgment of your Honour Justice McHugh at page 241 to see the way in which your Honour equally dealt with the matter.

I should explain that your Honour Justice McHugh's view differed from his Honour the Chief Justice in the sense that Justice McHugh's analysis limited the implication of freedom of communication only to the Commonwealth, whereas your Honour the Chief Justice would have extended it to the States had you been of the view that it was a relevant interference with political communication. Your Honour Justice McHugh was of the view that it was a relevant interference but limited only to the Commonwealth, but then applied the Melbourne Corporation doctrine. It is only necessary to read one paragraph at the foot of page 241:

In my opinion, the provisions of section 95D(3) and (4) are invalid in so far as they operate to prohibit the advertising of political matter in an election to a State Parliament or to a local government authority of a State. They are invalid because their immediate object is to control the States and their people in the exercise of their constitutional functions.

Then there is some considerable discussion going on about the way in which the Melbourne Corporation doctrine operates so as to protect the States.

Your Honours, these implications, be it the implication which affects the construction of Chapter III in relation to the judicial power, the implication that deals with the federal nature of the Constitution and limits the way in which otherwise plenary powers can be conferred so as to impair the functioning of a State or the implication which protects the exercise of the voting process, the electoral process, the political process as a whole, they are not different in substance and the analysis of them and the drawing of an implication in one case of freedom of speech is not an implication upon an implication in the way in which it has been contended for or in the way in which it has been criticised by your Honours.

The application of any such notion inevitably involves an examination of the way in which a particular law applies and then the testing of that law by reference to the existence of a notion which by its very nature is not capable of an all-inclusive definition. It has been put by your Honour Justice Dawson, in particular, what are the components of representative government? There is any number of varieties and we can never know what they are. Equally, it could be put by way of response, we would respectfully submit, what are the components of an independent - the maintenance of the structure of the States and the proper functioning of the States. One only knows whether a particular matter interferes with the States and their structure and functioning in terms of the Melbourne Corporation doctrine when a law arises which has some effect which impinges on the States.

One might not have been able to articulate in advance had there never been a law which sought to restrict television advertising in the States. One may never have been able to think up and draw up the criteria for what it is that are all the criteria, all the components of the doctrine of the continued function of the States, notwithstanding the plenary exercise of Commonwealth power. Equally, it may not be possible in advance, it may be a little easier, but not necessarily possible in advance to articulate in an all inclusive way the total components of all of the elements that go to make up an independent judiciary because one cannot necessarily anticipate all of the ways in which steps may be taken which impinge on the operation of judicial power.

One might not have thought about certain kinds of functions being given to judges which are inconsistent, perhaps, with the exercise of judicial power, or one may not have thought about the operation of determinations by the Human Rights Commission and a process of registration which was held not to be consistent with the independence of judicial power in Brandy. These matters are not capable necessarily of an a priori in advance total definition of the total components that go to make up the notion, or the doctrine as it is sometimes called, the conception as it may be called, these words do not necessarily have any magic meaning to them. They are basic to the way in which the Constitution is construed and the way in which they operate will depend upon the circumstance that arises and the question or what it is that seeks to impinge on them.

So, the question of what are the components of representative government, as it has been put, is inherently embodied in sections 7 and 24 and the other sections that your Honours have referred to, cannot necessarily all be articulated in advance. But when there is a restriction imposed explicitly on, say, criticism of members of the Industrial Relations Commission, in a comprehensive way that does not even allow for legitimate criticism of improper conduct, then the Court can say, that is the point at which we have to test whether or not something which is at the foundation of the constitutional structure, such as in this case, the process of communication about the structures of government embodied in the notion of representative government, is offended, or is crossed, that line is crossed.

So there is no process that has been undertaken here in the development of these two cases or in Theophanous and Stephens, as we would submit, that partakes of this that, (a), is any different, we would respectfully submit, to the way in which the notions have been developed in what I will call the other implications, using that in its most general sense; or in having erected some kind of implication on the implication. That has not occurred. All that has happened is that the circumstances have arisen when questions have to be answered about the operation of those doctrines or, putting it another way, the construction of the relevant sections that ensure full and free elections.

It remains true that one - and it seems to be perhaps the concerns that have arisen - it remains true that there is a question as to then the way in which any implication or any doctrine that is inherent in the Constitution or the words as fully construed, the way in which that impinges on the operation of laws either duly passed by Commonwealth and State Parliaments and, of course, the difficult and complex questions about whether it applies to the common law. Can there be a rule of the common law totally inconsistent with, or leading to, results which are totally inconsistent with that which is inherent in the Constitution. That is really the way in which ultimately the matter arose in Theophanous. Of course, it perhaps has never arisen before in that context so one gets the unusual development of the notion in the defamation area.

In this context it may be relevant for me to seek to respond to a question that your Honour Justice Gummow put to my learned friend, Mr Spigelman, this morning which was, what might be a scenario in which a common law principle other than in defamation law might be inconsistent with the Constitution.

I think your Honour made reference to having difficulty in seeing how that could ever operate. But, one could posit a situation in a deregulated world of commerce, including deregulation which took away what some business people no doubt would say are the unnecessary restrictions imposed by the Trade Practices Act, and in a deregulated and privatised world of commerce, one could imagine a world in which the airlines, the railways, the shipping lines, and perhaps the toll roads are all owned by private entrepreneurs who, in a world in which there is no regulatory authority such as the now- called the Australian Consumer Competition Commission, does not operate any more; where the privatised owners of all of the means of transportation reach what they see as a sensible agreement, perhaps along the lines of what used to be a legislated agreement in relation to airlines, where they share up the markets and provide that they will provide for, "I will only carry passengers from Sydney to Melbourne, and you will carry the passengers from Melbourne to Brisbane" and so on, and if someone else wants to come in on it they can only be an intrastate carrier. "We will make sure that we are the only ones who can transport people".

Alternatively, you could envisage such an agreement to have barriers at the border to stop interstate intercourse between private entrepreneurs who controlled the means of passage in Australia, and a dispute between them. One party says, "We do want to carry passengers where we agreed not to, and we now seek to declare that the agreement was bad", and it is necessary to consider the development of the public policy of restraint of trade, independently of trade practices legislation, and necessary to consider whether these parties in this imaginary world have reached an agreement which, itself, offends section 92.

One has to perhaps hypothesise to a fair degree, but that is the kind of example one can conceive of where, in developing a common law relating to the enforcement of such contracts, the operation of the constitutional provision would, one would imagine, be highly relevant and directly apply to the common law applicable to enforceability of such a contract.

I give that illustration only because it should not be assumed that the Constitution, while obviously enough for the most part it speaks about restraints on legislative power, it does not follow that that is necessarily so in all cases, and it may well be there are only few express guarantees of individual liberties, but the few that are there may turn out to be very significant indeed, given certain circumstances.

BRENNAN CJ: Surely somebody who drafted such an agreement as you postulated that infringed any freedom would ensure that it was not a freedom at the frontier that was infringed.

MR CASTAN: Perhaps they would, but the question that was posited was: do they really have to concern themselves with the Constitution at all? After all, they are just private individuals making a common law contract on the hypothesis in the absence of regulatory legislation. The ordinary common law of contract applies. Why should they concern themselves with the provisions of section 92 which, as it has been put, that only addresses itself to legislatures. I only use the example to illustrate that there may be some scenarios, and the defamation law has posed it very starkly. But there are scenarios where the Constitution may operate where, as a number of members of the Bench have put it, inevitably the common law must give way to the Constitution and that may arise in some private common law context, contexts in which the issue does arise as to the enforcement of private rights between two non-governmental parties.

KIRBY J: Can I go back to your point about the orthodoxy of the implications. Ultimately, however, it must be anchored back in the text of the Constitution.

MR CASTAN: Yes, your Honour.

KIRBY J: A problem that has to be reflected upon is the fact that the anchor points for the States are relatively few. In that sense you have to anchor the implication upon relatively few indications in the Constitution. It is one thing for Chapter III to draw implications about the judicial separation. It is another thing to draw from the whole structure of the Constitution implications about the federal nature of the polity. But, when you are getting into the States, their Parliaments and what can be done in relation to electing them, it is really getting quite a distance from the text, and I think that is a matter that you have to grapple with really.

MR CASTAN: The way we would respond to that is to say, your Honour, that what we have in ACTV and Nationwide are clear majorities, six Judges, I think, on the relevant principle, in relation to the notion that the Commonwealth Constitution applies in relation to communication - I am sorry, no, it is five. The relevant freedom of discussion of political matters, political discourse, applies at State level as well as federal level. There is an authoritative decision of this Court of five members of the Court. That we take as a starting point.

The next step is the step that your Honour has put to me which is: do you get to the point where that freedom which includes discussions of matters relating to government at State level, includes a limitation on the power of the State Parliaments themselves to interfere with that freedom of discussion that otherwise is found to exist or is it only the Commonwealth Parliament which is inhibited from interfering with discussion at the State level? It is pointed up by ACTV where the section did purport to limit television advertising in State elections. That was held to have gone too far on that basis by five members of the Court.

So that when one then goes to see what is there from which to base the implication that that political discussion at State level which is protected is also protected from the exercise of State legislative power, in our respectful submission, we say that Theophanous so holds and it seems clear that impinging on State defamation statutes as well as State common law, in our respectful submission, it seems clear.

We say that it should not be reopened, and if reopened, should not be overruled. That the doctrine - or perhaps using "doctrine" in this context has become perhaps the wrong word to use given the way in which there has been a focus on language. But that the freedom that has already been postulated in ACTV at the State level and that has been protected at the State level by the way in which the majority of the Court dealt with the matter in Theophanous in dealing with State defamation statutes was correctly so decided and should not be eroded.

It is founded, in our respectful submission - there are a very large number of the provisions of the Constitution, in our respectful submission, that can be referred to as the foundation for it. They have been set out in various permutations and combinations. The submissions for the Commonwealth put them at some considerable length and seek to break them up into certain categories of one kind or another. We do not resile from those categories but we say one does not necessarily need to get them into those rather specialised categories. We have set out a list at page 5 of the comprehensive summary which we recently filed with the Court in an endeavour to bring together all the various written submissions that have flooded into the Court from parties generally and, I regret to say, from us as well.

At page 5, towards the top of the page, we set out a lengthy set of provisions, and to illustrate by way of response to your Honour Justice Kirby the way in which we put it your Honour will see we have included the whole of Chapter III. We have done that because - - -

BRENNAN CJ: Where is this?

MR CASTAN: I am sorry, your Honour. It is a document headed "Levy v The State of Victoria" and there is a comprehensive summary of contentions on all issues on behalf of the plaintiff Levy, and it is headed "26 February 1997".

BRENNAN CJ: Yes.

MR CASTAN: It is page 5, towards the top of the page. Your Honours will see a very long list of sections, and some of those have been adverted to. I drew your Honours' attention to the footnote, I think it was, in the passage in the judgment of your Honour the Chief Justice in ACTV, at the point at which your Honour moved from one implication to the other. Here, this is a longer list of the matters we rely on. There has been some discussion about sections such as section 15. One can see these provisions, admittedly it might be said now, no longer - - -

DAWSON J: What has section 51(xxiv) got to do with it? It is:

The Service and execution throughout the Commonwealth of the civil and criminal process - - -

MR CASTAN: Yes, your Honour. I am content to go through all of these.

DAWSON J: I am not asking you to do that, but I was just wondering what that had to do with it.

MR CASTAN: What we are really putting here, when one comes to answer this question - to the question that was posed to me by Justice Kirby - is, do we look at the Constitution and each of its provision, and do we look at each one and see whether each one, read separately, has words from which one can see that there is something that would ensure that States must be limited in their power in relation to the conduct of elections? Or do we look at the Constitution as an organic document? Do we look at it as creating structures, and look at the whole of those structures? Do we construe those words standing alone, and look at each provision, segmented, isolated? Or do we look at it informed by - as your Honour Justice McHugh put it - the 1897 convention and the notions that were developed in the passages I read earlier, and looking at the totality of the structure? The States do not have an existence that, so to speak, hangs in the sky. They are there because the Constitution has constituted them as States.

BRENNAN CJ: Where does that take you? The States are there.

MR CASTAN: Yes, and once one posits - - -

BRENNAN CJ: Yes, and you have the Constitution as a whole. The Constitution should be read as a whole and the States are there, an organic whole, as I am reminded, and the States are there. Now, where do we go to from here?

MR CASTAN: Yes. I was responding specifically to the question about these provisions because I think it was put to me that 51(xxiv) seemed to have nothing - I think it was what was being suggested by his Honour was that 51(xxiv) had nothing to do with - - -

DAWSON J: No, I was not. I could not immediately perceive what it had to do with it.

MR CASTAN: Yes. Well, I was endeavouring to respond to that, and the answer to your Honour the Chief Justice's question is that when one comes to answer the question, from what does one draw the limitation on State legislative power that exists in the federal Constitution, we say one looks at the totality of all these provisions and then sees whether or not the States are intended to operate in a particular way and, in our respectful submission, they are intended by this Constitution to operate in the same way and subject to the same freedom, as it has been expressed, or limitation on power, to put it more precisely, that was articulated in the passage that I earlier read in relation to the Commonwealth. That is all we seek to do by drawing attention to all these provisions. I see that it is after - - -

BRENNAN CJ: Yes. We will adjourn until 10.15 tomorrow morning.

AT 4.17 PM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 7 MARCH 1997