Attorney-General for the State of New South Wales v John Fairfax Publications Pty Limited S129/2001 [2001] HCATrans 640 (11 December 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S124 of 2001

B e t w e e n -

JOHN FAIRFAX PUBLICATIONS PTY LIMITED

Appellant

and

ATTORNEY-GENERAL FOR THE STATE OF NEW SOUTH WALES

Respondent

Office of the Registry

Sydney No S129 of 2001

B e t w e e n -

ATTORNEY-GENERAL FOR THE STATE OF NEW SOUTH WALES

Appellant

and

JOHN FAIRFAX PUBLICATIONS PTY LIMITED

Respondent

GLEESON CJ

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 11 DECEMBER 2001, AT 10.18 AM

Copyright in the High Court of Australia

__________________

MR S.D. RARES, SC: May it please the Court, I appear with my learned friend, MR R.P.L. LANCASTER, for the appellant in the first matter and the respondent in the second. (instructed by Freehills)

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friends, MR M.J. LEEMING and MS. B.K. BAKER, for the respondent in the first matter and the appellant in the second matter. (instructed by I.V. Knight, Crown Solicitor for the State of New South Wales)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth: May it please the Court, I appear with my learned friends, MR G.A. HILL and MR R.G. McHUGH, for the Attorney-General of the Commonwealth, intervening in the interests of the Attorney-General for New South Wales in both matters. (instructed by the Australian Government Solicitor)

MR D. GRAHAM, QC, Solicitor-General for the State of Victoria: May it please the Court, I appear with my learned friend, MS P.M. TATE, on behalf of the Attorney-General for the State of Victoria, intervening in the interests of the Attorney-General for the State of New South Wales. (instructed by the Victorian Government Solicitor)

MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia: May it please the Court, I appear with my learned friend, MR F. SUNDERLAND, on behalf of the Attorney-General for Western Australia, intervening in support of the Attorney-General for New South Wales. (instructed by the Crown Solicitor for the State of Western Australia)

MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia: May it please the Court, I appear with my learned friend, MR D.J. MACKINTOSH, for the Attorney-General for South Australia intervening in support of the Attorney-General for New South Wales. (instructed by the Crown Solicitor for the State of South Australia.

GLEESON CJ: Mr Rares, the form of declarations appear at page 79 of the joint appeal book, is that correct?

MR RARES: That is correct, your Honour.

GLEESON CJ: And declaration 1 is wrong, is it?

MR RARES: Is wrong. It should have (8)(a), your Honours.

GLEESON CJ: Now, what should we do about that?

MR RARES: I think we were making an application to the Court of Appeal under the slip rule, but I do not think that - that has been made. Your Honours, can I hand up a sealed copy of those orders.

KIRBY J: Is that available for amendment of an order formalised by the court following a decision of this Court in DJL v Central Authority?

MR RARES: That is not a matter, your Honour, that I have taken on board, but the order does not properly record the judgment of the court and its apparent, when one looks at declaration 2 on page 79, that - - -

KIRBY J: I know all that. We all know that. The question is whether, following what this Court has said concerning the powers of the intermediate courts to amend their own orders, the Court of Appeal could amend it or whether it has been amended by this Court, by setting it aside.

MR RARES: Your Honour, I just have not considered that. I must say I had considered this could be done under the slip rule and I - - -

KIRBY J: What is this slip rule? Who made it? What power did they have to make it once the orders had been formalised following what this Court has said?

MR RARES: DJL, as I recollect, was where a substantive change was being made. The order, as formalised, does not reflect the reasons of the court, the order pronounced in open court by the judges making the order, or the intent of the judges.

GLEESON CJ: The order that was entered on 6 November, as amended to cover the slip to which you refer, in paragraph 1 made a declaration of invalidity of legislation that was not in effect at the time.

MR RARES: That is not right. The legislation was in effect at the time. On 2 August the original sections were in effect. Only on 25 - - -

GLEESON CJ: By the expression at the time, I said and meant "6 November 2000".

MR RARES: I see.

GLEESON CJ: The date in which the order was entered. At the date on which the order was entered the legislation referred to in paragraph 1 was not in effect, is that so?

MR RARES: As to (7), yes. As to (8), no; (8)(a) was not amended. As to (7), your Honour is correct. As to (8)(a), (8)(a) was not amended, so it was in effect at all material times.

GLEESON CJ: Right. What is the effect of entering on 6 November an order that declares invalid a legislative provision that is no longer in force?

MR RARES: The order that was entered records the court's order that, in fact, was made on 2 August when the legislation was in force.

GLEESON CJ: But it does so because nobody drew the attention of the Court of Appeal to the fact that legislation was enacted between the date of the making of the order and the date of the entry of the order amending the legislation on whose invalidity the Court of Appeal had pronounced.

MR RARES: There is no question about that. That is certainly correct.

GLEESON CJ: In fact, as I understand the facts, nobody drew your client's attention to it.

MR RARES: That is correct, your Honour.

KIRBY J: So it was not mentioned during the argument of the substantive matter. That was back in December, was it not?

MR RARES: That was back in December and the amendments appear to reflect certain views that were expressed in the interchange between Bench and Bar during the argument that the - - -

KIRBY J: It seems astonishing that the Attorney-General did not know of this and bring it to the notice of the court and of your client and have the matter relisted for argument of the significance of these supervening amendments because the royal assent was given in June. The decision was not made until August and then it was brought into effect in September, so the sequence of events is the order is - it was formalised in November.

MR RARES: Yes.

KIRBY J: It leaves things in a very unfortunate state.

MR RARES: It does. Your Honours, the legislation in its original form appears to be reasonably faithfully reflected in the Criminal Appeal Act 1970 whence it has been drawn and obviously it still has some substantive guidance as to the validity of those sections, although they were not directly in issue in the proceedings below.

GUMMOW J: But they were not in issue at all.

MR RARES: Those sections, no. That is correct.

GLEESON CJ: You are not seeking an advisory opinion from us on the validity of a section of the Criminal Appeal Act?

MR RARES: No advisory opinions are being sought, your Honour.

GLEESON CJ: Now, Mr Rares, the only proceedings that are on foot are proceedings that challenge the validity of legislation that has, in certain respects, been amended. There are no proceedings on foot that call in question the validity of the amended subsection (7).

MR RARES: That is correct, your Honour.

GLEESON CJ: And the amendments that have been made to subsection (8), which affect directly subsection (8)(b), have never been considered by the Court of Appeal.

MR RARES: They have not been, but in the current form and in the past form (8)(b) materially affects us and we are, because no application was made to disclose our name during the course of the proceedings before the Court of Appeal and before they came to an end on 2 August - - -

HAYNE J: Well, did they come to an end on 2 August? It was open to your client and to the Attorney, was it not, to take the matter back to the Court of Appeal until the court's decision had entered into record, which did not happen until November?

MR RARES: Yes, that, as a matter of jurisdiction and power, is correct, yes.

HAYNE J: And, in particular, given the amendments that were made to the legislation which was the subject of this apparently interlocutory application for declaration of invalidity, it would have been open to either side, first, to draw attention to the amendment in the Court of Appeal and, second, to seek reopening of the matter for argument about the validity of the amended provisions which then applied, on one view of matters, to the litigation between the parties.

MR RARES: Obviously, that must be so, your Honour, I have to accept that. However - - -

KIRBY J: It is somewhat unfortunate if the Court of Appeal can consider the matter afresh, to have an opinion of the Court of Appeal formalised in an order after the amendments came into force, speaking to the community and to the parties, which is really without any fault on the part of the judges themselves, because these things are done administratively, really speaking to the law which has been, on one view of it, amended. I leave aside the question you raised as to whether there was anything to which the amendment could attach, but assuming that that problem can be overcome, it means that you have an authority of the Court of Appeal which, through no fault of the judges, speaks to the law which has been changed by supervening legislation.

MR RARES: That is so, but it is still an authority as to the law that applied at the time the proceedings in the Court of Appeal were heard and when they were determined, albeit prior to their passing into record on 6 November. The question is was the decision correct at the time it was given and it was plainly - - -

KIRBY J: Now, do you seek to hang on to the declarations or any of them that are in the formalised order of the Court of Appeal on page 79 of the appeal book?

MR RARES: Yes, we do.

KIRBY J: Notwithstanding the supervening amendments?

MR RARES: Yes, your Honour, and the force of those is, of course, their bearing indirectly on the provisions of the Criminal Appeal Act which are materially identical because if the Court of Appeal was correct about that, then it must follow, albeit not as a matter of declaration by any court, that the same operative provisions in sections 5A(2)(g) and (h) of the Criminal Appeal Act are beyond the legislative power of the State of New South Wales.

KIRBY J: Speaking for myself, I think that is your weakest argument because that is not before us. It is not involved in these proceedings and, so far as I recollect, has not been the subject of use for a decade or more. Certainly it is extremely rare and, therefore, that is a very weak argument. The question is whether or not these declarations, sensibly, formalised after the amendment, ought not to be set aside by us in order that the Court of Appeal can reconsider the matter in the light of the amendment. Is that not a courtesy to the Court of Appeal, given the supervening legislation which was never drawn to the notice of the judges?

MR RARES: That would, of course, require an amendment to our process as well in the Court of Appeal to - - -

HAYNE J: That brings up the point: what is the practical utility of determining whether, at the time the declarations were pronounced, they were right or wrong? What practical utility is there in that exercise?

MR RARES: Well, there was a decision by the Court of Appeal taken after an in camera hearing in Attorney-General v X, which was part of this matter in a constitutional sense, which has answered questions as to the law of contempt in New South Wales pursuant to section 101A. Now, the question is: was that a properly constituted hearing? This point was taken in those proceedings and the court, as Ms Norman's affidavit of 7 December this year demonstrates, raised the issue as to whether this point ought to be taken in separate proceedings so that that could be heard in open court.

HAYNE J: Well, those sound interesting points for academic debate. My question is: what is the practical utility? What can parties do or not do that is affected now if we were to embark on the question whether, at the time the declarations were made, they were rightly made or wrongly made?

MR RARES: Well, in my client's appeal, my client is bound by a perpetual injunction by this legislation not to say what the judgments in both matters say in the court below, namely it was the party who was the alleged contemnor and we commit a contempt of court if we say that openly in publishing reports of those proceedings.

GUMMOW J: That will not be necessarily so, will it, if the matter goes back to the Court of Appeal, because it can then apply itself to the significance of the amendments to suit subsection (7) and so on. You seem to want to disable yourself by saying that you cannot do this. It may be that on a construction of the Act for which I would imagine you would contend you can, having regard to the amendments.

HAYNE J: Or there might be a little consent coming from Fairfax to the publication of its name and identity, et cetera.

KIRBY J: But I think you say that you cannot give consent because the proceedings are over, is that correct?

MR RARES: That is the argument we are putting, but I think Justices Hayne and Gummow were postulating returning it to the Court of Appeal so that it can be - - -

GUMMOW J: Would you seriously be putting that in the Court of Appeal if this matter went back there? You would need very clear instructions, I would have thought.

MR RARES: What we would be putting, your Honour, is that to allow a party to litigation to have the benefit of being able to enforce or require a perpetual injunction to be given without any possibility of judicial review of that party's conduct, is antithetic to Chapter III.

GUMMOW J: That is not an answer to what I asked you.

MR RARES: Your Honour is asking me would we be putting that we should not be allowed. What we would be saying is that the provision is unconstitutional.

GUMMOW J: No, that is not what I asked you either. I will not repeat it.

MR RARES: Except that we would say we can be named, and that is certainly the case, but we say that the imposition of that provision cannot be valid.

GUMMOW J: Are you saying the amendments are invalid?

MR RARES: Yes.

GUMMOW J: I see.

MR RARES: Because they suffer the same bias - - -

GLEESON CJ: Now, there are no proceedings on foot that call in question the validity of the amendments, are there?

MR RARES: Your Honour, at this point, no. I have to say this that we, in light of the Senior Registrar's letter on 5 December, intimated to the other parties and interveners and the other Attorneys-General that would be required to be given notice under section 78B, that we would want to take proceedings, by writ and statement of claim in this Court, to have those sections and 5A(2)(g) and (h) declared invalid.

GLEESON CJ: Now, if you took those proceedings, could they be remitted to the Court of Appeal?

MR RARES: I have not considered that, your Honour. They being the original jurisdiction, I would think that section 44 - - -

KIRBY J: Mr Rares, whilst that is being checked can I just ask you: the sensible course, that seems to attract me at least, is that this supervening legislation having occurred, not having been called to the notice of the Court of Appeal, not having been considered by their Honours, naturally, and the order of their Honours speaking from a date after the supervening legislation took effect, the sensible arrangement would seem to be that this Court should set aside the orders of the Court of Appeal, formalised by the document at 79, and send the matter back where there would not have to be complete re-argument, one would think, but there would have to be some re-argument addressed to that issue. Then final orders could be made and then if you are still discontented you could come here and seek special leave on those orders.

Now, are you agreeable to that course? Is that something that you can agree to, or is it something that you resist? If you resist it, why?

MR RARES: I will have to take some instructions about that, but one thing I should say to your Honour is Justice Priestley is retiring - - -

KIRBY J: I realise that.

MR RARES: So that it may not be quite a case of not being able to re-argue it fully, because there would be a new Bench.

KIRBY J: Yes, but the Court of Appeal's decision is very full, and spoke of the law as their Honours understood it, and presents the debate and presents the issues as it stood at 2 August when their Honours handed down their reasons. The only problem is that there then intervened an amendment which was not called to their notice and which, therefore, naturally they did not pay attention to. We are being asked, in a sense, to consider the matter on a false premise because the law has changed in the interim. Now, is not the sensible course, in order to permit the matter to be dealt with, for us to set aside their Honours' orders, for the matter to be argued on the law as it stands, and then for the matter to come here again if it is still a live issue?

MR RARES: Well, can I take some instructions about that topic, your Honour, because I obviously have not had instructions to the - - -

KIRBY J: I just ask you for my own part because if you resist it, then I think we are entitled to know why you resist it, on what basis, and then we can make a decision about the matter.

MR RARES: Can I just have a moment?

GLEESON CJ: Yes.

MR RARES: Your Honours, if your Honours were of the view that this matter ought to go back to the Court of Appeal, we would agree to that course.

GLEESON CJ: Well, Mr Rares, the amendment that was made to subsection (7) was of major significance. The challenge to the legislation was partly on the basis that the legislature required the court to sit in camera and the amendment gives the court a discretion as to whether it will sit in camera.

MR RARES: Yes. Well, your Honours, we accept that, on that basis, the matter ought to go back to the Court of Appeal.

GLEESON CJ: We will hear what the Solicitor for New South Wales has to say. Mr Solicitor.

MR SEXTON: If the Court pleases. Your Honours will appreciate that we wanted to challenge the findings of the Court of Appeal in relation to the freedom of communication under the Constitution and that two of the three provisions that were the subject of the declaration remain unchanged.

GLEESON CJ: I am not so sure that counting numbers gets very far, Mr Solicitor, having regard to the nature and extent of the amendments - - -

MR SEXTON: No. I appreciate, your Honour, that - I cannot pretend that the legislative - - -

GUMMOW J: You were trying to fix it up, I imagine.

HAYNE J: Justice Gummow is very beneficent towards the court of New South Wales.

MR SEXTON: Can I say candidly, your Honour, that I was not consulted in relation to the legislation, and if I had been, the question of its timing between the hearing and the decision coming down would not have been my preference and obviously the timing of the legislation has raised various problems in this case. I cannot pretend otherwise, your Honours. Our preference is to challenge the Court of Appeal's decision on the basis of freedom of communication but, in a sense, we are in the Court's hands as to how it handles the problem that has been caused by the supervening legislation.

KIRBY J: You might still be back here because Mr Rares has various arguments, including whether there was something to amend, whether there were provisions other than on the printer's ink to which the amendment could attach. So, the issue does not go away. I mean, just basic courtesy and proper procedure to the Court of Appeal and to this Court would suggest that their Honours should have the opportunity to consider what, if any, significance the supervening legislation has and to be completely candid, somewhere in your office, somewhere in the Attorney-General's office, arrangements should have been put in place to notice the significance of this and to bring it to the attention of the Court of Appeal and of Fairfax.

MR SEXTON: That must be so, your Honour. Your Honour raised the question before and your Honour will see from the legislation, if your Honour has seen it, that it went through in a form of a consolidation.

GLEESON CJ: The timing is puzzling because, in my experience, applications of this kind are as rare as hen's teeth. In fact, I do not presently remember, having sat on the Court of Criminal Appeal for almost 10 years, ever having sat on one of these references in relation to an acquittal.

MR SEXTON: Certainly, the legislation was a surprise, if I can put it that way, to some of us, your Honours. In fact, it took a great deal of time before any of us came across it and it is obviously unsatisfactory. I cannot say anything more about that.

GLEESON CJ: Unless you ant to say anything further Mr Solicitor or Mr Rares, we ought to adjourn for a short time to consider the course we will take in this matter.

AT 10.43 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.51 AM:

GLEESON CJ: Mr Rares, you handed up that amended order. It had a date stamp on it. What was the date on which that amendment was made?

MR RARES: 10 December this year.

GLEESON CJ: Yesterday?

MR RARES: Yesterday.

GLEESON CJ: On 2 August 2000 the Court of Appeal of New South Wales made declarations that subsection (7) and subsection (8)(a) of section 101A of the Supreme Court Act (NSW) are invalid and that subsection (9) of section 101A of that Act is invalid in so far as it applies to a publication in contravention of subsection (8)(a). The court made an order for costs.

The Court of Appeal held that by majority that the subsections mentioned were to the extent stated invalid as infringing what was described in Lange v Australian Broadcasting Commission as the requirement of freedom of communication imposed by sections 7, 24, 64 or 128 of the Constitution.

The declarations were made on a summons issued in connection with the hearing of questions submitted to the Court of Appeal by the Attorney-General for New South Wales, pursuant to the Supreme Court Act section 101A, as questions of law said to arise from or in connection with certain contempt proceedings in which John Fairfax Publications Pty Limited ("Fairfax"), the alleged contemnor, had been found not to have committed contempt. The determination of the Court of Appeal of the questions submitted could not in any way affect or invalidate any finding or decision given in the contempt proceedings.

Subsections (7) and (8)(a) of section 101A, the provisions referred to in the first of the declarations made by the Court of Appeal, required that proceedings under section 101A "be held in camera" and that persons "not publish any report" of the submission of questions by the Attorney. Subsection (9) provided that:

Any publication in contravention of subsection (8) is punishable as a contempt of court.

After the Court of Appeal made the declarations, but before the order recording the declarations was entered, section 101A was amended. The effect of the amendments was to allow the Court of Appeal to order on the application of a party or of its own accord that proceedings under section 101A not be in camera and to permit the alleged contemnor to consent to his or her name or identity being disclosed. These amendments may have a substantial effect on the questions as to the constitutional validity of the legislation. No application was made to the Court of Appeal whether to have the court reconsider its declarations, to have the court make an order permitting publication of the proceedings or for Fairfax to consent to its name and identity being disclosed.

On 6 November 2000 an order was entered which recorded as the first of the declarations that each of subsections (7) and (8) of section 101A is invalid. That order did not accord with the reasons published by the Court of Appeal and was amended yesterday. Fairfax and the Attorney-General were granted special leave to appeal and cross-appeal to this Court against the orders and declarations of the Court of Appeal. The orders granting special leave to appeal and cross-appeal were made without this Court's attention having been drawn to the amendments made to section 101A.

To resolve whether the declarations were rightly made at the time they were pronounced would serve no useful purpose. Whether or not the declarations that were made were soundly based at that time, a question upon which we express no view, the subsequent amendments to section 101A made it inappropriate to enter orders in the form of the declarations that had been made. At the time orders were entered, by an administrative process which would ordinarily not involve the attention of the judges of appeal, the declarations dealt with legislation that was no longer in the form that was said to be invalid. Declarations should not then have been made.

The orders made by the Court of Appeal should be set aside and the matter remitted to the Court of Appeal.

In the proceedings by the Attorney-General there will be orders that the appeal is allowed and the orders of the Court of Appeal entered on 6 November 2000 and amended on 10 December 2001 are set aside. Special leave to appeal and cross-appeal is otherwise revoked. There will be no order for costs in this Court.

We will adjourn until 10.15 tomorrow morning.

AT 10.57 AM THE MATTERS WERE CONCLUDED