Coleman v Power & Ors [2003] HCATrans 407 (7 October 2003)

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Coleman v Power & Ors [2003] HCATrans 407 (7 October 2003)

Last Updated: 8 October 2003

[2003] HCATrans 407

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B98 of 2002

B e t w e e n -

PATRICK JOHN COLEMAN

Appellant

and

BRENDAN JASON POWER

First Respondent

ADAM RICHARD CARNES

Second Respondent

THE HON THE ATTORNEY-GENERAL OF THE STATE OF QUEENSLAND

Third Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 7 OCTOBER 2003, AT 10.21 AM

Copyright in the High Court of Australia

__________________

MR W.P. LOWE: If the Court pleases, I appear for the appellant together with MS A.D.R. GIBBONS. (instructed by Patricia White & Associates)

MR G.J. GIBSON, QC: If it please the Court, I appear for the first and second respondents with MR P.J. DAVIS. (instructed by Queensland Police Service Solicitor)

MR P.A. KEANE, QC, Solicitor-General of the State of Queensland: If the Court pleases, I appear with MR G.R. COOPER for the third respondent. (instructed by Crown Solicitor for the State of Queensland)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth of Australia: If the Court pleases, I appear with my learned friends, MR R.G. McHUGH and MR B.D. O’DONNELL, for the Attorney-General of the Commonwealth, intervening. It has been agreed that I should go last, if your Honours please. (instructed by Australian Government Solicitor)

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR M.J. LEEMING, for the Attorney-General for New South Wales, who intervenes. (instructed by Crown Solicitor for the State of New South Wales)

MR C.J. KOURAKIS, QC, Solicitor-General for the State of South Australia: If the Court pleases, I appear with my learned friend, MR C. JACOBI, for the Attorney-General of South Australia, intervening. (instructed by Crown Solicitor for the State of South Australia)

GLEESON CJ: Yes, Mr Lowe.

MR LOWE: Thank you. I would just commence my argument today from a quote – in fact, it is a reference that was quoted by Mr Justice Kirby from the United States Supreme Court decision of Boos v Barry. It seems - not because of what the court there said about the First Amendment, which obviously has no direct consequence in relation to this appeal - what was said there generally is apt to this appeal. I read this:

[A]s a general matter, we have indicated that in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.

KIRBY J: That is your text for today, is it? Is that the text you have set for your address?

MR LOWE: Well, as it turns out, the offence provision, which will be the subject of debate in this Court, is about an offence provision which regulates insulting words. So it is apt, in that sense, and where the First Amendment is referred to by the United States Supreme Court in that reference, one could just as well be referring to the implied freedom of political speech, freedom in - - -

KIRBY J: Was that in Levy that I quoted that, was it?

MR LOWE: Yes, that is so.

KIRBY J: Yes, but I think I went on to say that the American jurisprudence has developed in a way which is quite different from that of the rest of the world, where we balance other interests with the right of free speech.

MR LOWE: Yes, that is so. The issues raised on this appeal - the first is the nature and scope of the operation of the implied freedom of political communication and discussion. That implication has been found by this Court to arise from the structure of the - - -

GUMMOW J: Wait a minute; the first question is working out which is the right section in the Police Powers Act, is it not? In your reply you refer to section 38 in place of 35. Is that the first time that has come out of the woodwork?

MR LOWE: Yes. I have had some discussions with my colleagues from Queensland. The Police Powers and Responsibilities Act has gone through a significant degree of reworking since 1997 to 2000. There is an arrest provision which relates to section 7(1)(d) of the Vagrants Gaming and Other Offences Act, which is relevant to the powers of arrest by a police officer for that offence.

GLEESON CJ: Mr Lowe, one of the practical problems we have to live with is that by the time cases get to this Court they usually have a few years age on them, so we always have to take some care to get the relevant legislation correct. What is the relevant date; what is the date of the alleged offences?

MR LOWE: 26 March 2000.

GLEESON CJ: And what are the relevant legislative provisions and what reprint of the particular Acts should we be referring to?

MR LOWE: My friends from the first and second respondents have prepared a document which I think will assist the Court no end in relation to the particular offence provisions which were extant as of that date. If I could just hand up to the Court that document.

GLEESON CJ: Thank you. This document uses the expression “until 2000”. The offence occurred on 26 March 2000. What should we take the expression “until 2000” to mean?

MR LOWE: To 1 July 2000.

GLEESON CJ: Until 1 July 2000.

MR LOWE: Section 38 was extant until that date.

GLEESON CJ: The same with sections 546 and 548 of the Criminal Code?

MR LOWE: Yes, on each occasion it is 1 July 2000.

KIRBY J: In a sense, this question comes up further down the track, does it not, that is to say the lawfulness of the arrest? One would think logically you have to first ask the two questions in Lange and if they are not answered in your favour, then we do not get to anything else.

MR LOWE: No, that is so.

KIRBY J: And if they are answered in your favour, then we have to address the question of whether the respondents get relief from the changing feast of Queensland law.

MR LOWE: Indeed, and I think it is the Attorney-General for the Commonwealth who indicated that the Lange test would apply not only to the offence provision but also to the arrest provision.

GLEESON CJ: Now, should we insert the date “1 July 2000” on page 2 after the word “sense”?

MR LOWE: Yes.

GLEESON CJ: Thank you.

MR LOWE: As Justice Starke said in The First Uniform Tax Case, an implication arising from the structure of the Constitution can only be divined by a gradual process of judicial decision. In this case, the gradual process of decision-making - - -

KIRBY J: What is the citation of that observation by his Honour? You can give it to us later if you would - - -

MR LOWE: I have it readily at hand. In fact, your Honours, it may be a convenient point to hand up the decision of South Australia v The Commonwealth [1942] HCA 14; (1941) 65 CLR 373. I have a copy.

GUMMOW J: Is this The First Uniform Tax Case?

MR LOWE: Yes.

McHUGH J: It is not 1941 either, is it?

MR LOWE: It carries 1941.

McHUGH J: Is it?

MR LOWE: Yes, I hand up a copy - - -

KIRBY J: Justice McHugh’s photographic memory has ill served him for the first time since I sat here.

McHUGH J: I doubt it.

GLEESON CJ: I think Justice McHugh is right: it was decided in 1942.

GUMMOW J: Why do we need to plough through The First Uniform Tax Case?

MR LOWE: There are only two references I wish to take your Honours to in relation to the reference - - -

KIRBY J: Actually, the reference you just read from Justice Starke is helpful, at least to me, because it teaches the point that when you are embarking upon an implied privilege or restraint of the Constitution, you must not get irritated that you are going to get borderline cases where you have to draw lines, that that is part and parcel of the nature of the beast.

MR LOWE: Indeed.

KIRBY J: That is what Justice Starke’s insight teaches us and therefore, since the so-called free speech series of cases culminating in Lange, we just have to do this job and not get annoyed or upset that it seems to be invoked in a case that does not on the face of things have a lot of merit, just insults, but which is the painful working out of the application of the constitutional implication from time to time in particular cases. It is just the nature of the job.

GUMMOW J: What is the page in Justice Starke’s judgment?

MR LOWE: Page 447 at about point 4.

KIRBY J: If you think of it, the same process is going on in the Melbourne Corporation Case and the recent decision in Austin is an illustration of that process.

MR LOWE: If your Honour pleases. I now wish, since you have that case before you, to take you to page 408 of Chief Justice Latham’s decision, at about point 9. This will be relevant for this appeal:

Common expressions, such as: “The courts have declared a statute invalid” sometimes lead to misunderstanding. A pretended law made in excess of power is not and never has been a law at all. Anybody in the country is entitled to disregard it. Naturally he will feel safer if he has a decision of a court in his favour – but such a decision is not an element which produces invalidity in any law. The law is not valid until a court pronounces against it – and thereafter invalid. If it is beyond power it is invalid ab initio.

GUMMOW J: Well, that has to be read with the authorities referred to by New South Wales, has it not, if we get to that point?

MR LOWE: If we get to that point, yes, your Honour. Now, the gradual process of decision-making in this case takes into account the decisions of this Court in Theophanous, Nationwide News, ACTV, Lange and Levy. The circumstances - - -

GUMMOW J: In particular, it would have to be read with Re Macks; Ex parte Saint, would it not?

MR LOWE: Yes, your Honour. I hear what you are saying. The circumstances of this case: a State law purports to regulate, at least in one aspect of the offence provision, conduct of individuals in public places by controlling utterances, being insulting language. It is a blanket provision, and there are no exceptions, qualifications or provisos that apply to that offence provision. The offence provision does not have, as may be found in other pieces of legislation, “without reasonable excuse” as a proviso, or “without lawful excuse” as a proviso.

Indeed, I think, in terms of the authorities relied on by the Attorney-General for New South Wales, there is a relevant case where it was found that the offence provision was valid because there was a proviso about “without reasonable excuse” or “lawful excuse”. That is Ming Pao Newspapers Ltd v Attorney-General of Hong Kong. I will return to that in due course.

In this case there is an ancillary question: are police officers public officials for the purpose of the implied freedom? To put it in an alternative way, are police officers purporting to exercise powers of arrest without warrant subject to the implied freedom? Your Honours will be aware that the subject matter that commenced in Townsville Local Court is an issue of allegation of a corruption by police officers in Townsville. Corruption in its many forms is a problem of all modern governments at all levels: local, State, federal. It is not a problem which traditionally has been tackled by constitutional means. In this case the impugned communication is one involving a complaint about corruption within certain ranks of the Queensland Police Service.

KIRBY J: Could you help me with this. You do mention it in your reply. Where stands the authority of the Court on the issue of the extent to which the implication found in Lange and other cases exists to protect State Constitutions and State courts and State officers such as State police? It seems as though the authority is not entirely clear and has not really been finally settled.

MR LOWE: There is no bright line on this issue, though - - -

KIRBY J: The Commonwealth’s submissions say that you always have to get back to the protection of the federal electoral process. But a question that arises in my mind is whether or not the implication that protects the federal electoral process also protects the electoral process of the States, the State Parliaments being referred to in the federal Constitution as integral parts of the democratic nation. What is the state of the authority of the Court on that question? It does not seem to be very clear.

MR LOWE: No, it is not clear. One of the purposes perhaps of this appeal is to clarify to what extent the implied freedom will apply in a State context where there has been an allegation of corruption. The federal Attorney for the Commonwealth has submitted that because of the integrated nature of policing in Australia, that may well give rise to the application of the first limb of Lange.

KIRBY J: That is on the basis of his major premise, which is that you always have to bring it back to relevance to federal elections of the democratic process of the Federal Parliament chosen by the people. The question to get the first premise right is whether or not that is the correct starting point or whether it is equally valid to say that the Constitution protects the representative democracy of the State Parliaments. Does McGinty stand against that?

MR LOWE: Yes. If I could just take your Honour, in response to your query, to the case of Theophanous [1994] HCA 46; 182 CLR 104 at 166. I am quoting from a judgment of Justice Deane from the top:

The conclusion that the constitutional implication of freedom of political communication and discussion confines the content of State laws and legislative powers under the Constitution does not rest merely on the textual considerations mentioned above. It is also supported by common sense and persuasive authority. Common sense, in that it would border on the absurd if State laws continued, or enacted pursuant to legislative powers continued, by the Constitution could restrict political communication and discussion to an extent or in a way which undermined the freedom of political communication which was implicit in the doctrine of representative government which was embodied in the Constitution as a whole.

The issue of corruption in modern government is not merely one that affects a domestic legislature like Queensland. If it does, it may well invoke a federal issue. At halfway his Honour says this:

It follows that the Constitution’s implication of freedom of political communication and discussion is applicable to confine both the content of State legislative powers and the content of State laws whether statutory or inherited.

Your Honours may well be aware from the reply that the issue of breach of the peace was raised and it seems to be an essential thrust of many of the respondents’ and interveners’ arguments that section 7(1)(d) has an important object of controlling breaches of the peace. Now, perhaps an issue of breach of the peace does not burden South Australia as much as other States and Territories which have that provision - - -

KIRBY J: But does that not come up on the limb of the Lange test?

MR LOWE: Yes.

KIRBY J: My question at the moment is directed – I think we have to be conceptual about this case and divide it essentially into the three questions: first limb, second limb, reasonable excuse.

MR LOWE: And margin of appreciation.

KIRBY J: Well, I will allow that for the moment, but we are on the first limb at the moment, are we not?

MR LOWE: Yes, that is so.

KIRBY J: Therefore, what you were last saying was really relevant to the second limb, and I think we had better get the first limb straight in our minds first, that is to say whether or not this implication on the authority of the Court and consistent with what was said in Lange, which, in some senses, re-expressed on a slightly different foundation what had been said in the earlier cases, attaches to protect people in respect of State laws, that puts a limit on what State Parliaments can do, as distinct from the Federal Parliament, which is most obviously affected by the representative democracy notion.

MR LOWE: Yes, but this offence provision burdens not only State matters, but because of the breadth and nature of the offence provision - - -

KIRBY J: I know you say that, and the Commonwealth appears to support it, but, as I read it, the first and second respondents do not accept that and, therefore – and in any case, we would have our own duty to make sure that that is correct. Just because parties submit it or concede it does not mean, as far as I am concerned, that I am bound by it in a constitutional case.

MR LOWE: Yes, indeed, but it is the characterisation of the law that is significant in this case. There being no proviso, qualification or exception to the offence provision, it does apply on a blanket level. In relation to the reply that I put on, there is an example of, if the Prime Minister was giving a speech in Townsville Mall and was heckled by agitators or protestors, would the offence provision control that heckling? In my respectful submission, it would, and that gives rise to the application of the first limb of Lange.

It is not restricted to the sort of speech on State matters, State issues. It has the ramification to apply in election time and outside election time to matters which may be germane to the formulation of federal policy, federal law, whether it applies in Queensland or outside of Queensland.

KIRBY J: Can I explain my difficulty and then I will fall silent. The Lange exposition reformulated the principle along lines that Justice McHugh had been suggesting in earlier cases, that is to say it broke loose from earlier dicta which suggested that the Constitution gave a right to free expression. Instead it said that the constitutional principle put a restraint upon the enactment of federal laws that were incompatible with the notion of a representative democracy elected by the people.

Now, if that is the current doctrine, as it seems to be in the unanimous opinion in Lange and applied in later cases, the question is, does a similar restraint emanate from the federal Constitution, that being the only one that is argued in this case, to put a limit on the States? Arguments in favour can be the practical type of argument that Justice Deane mentioned. Arguments against would seem to rest on the principle that the federal Constitution as such does not contain a provision that says that State Parliaments will be elected by the people of the State. It has some provisions concerning the Senate and, as Justice Deane hints, it would seem absurd to have an authoritarian anti-democratic Parliament in a State in a polity which demands a representative democracy in the Federal Parliament.

So the question is whether the new foundation for the implied restraint in Lange is relevant to the State Parliaments because of their place in the Constitution, because of the integrated nature of the Commonwealth and whether any other textual foundation exists for a similar restraint on State laws by State Parliaments which authorises this Court to extend the Lange restraint into the laws enacted by a State Parliament. Now, that is the problem I have.

In McGinty the question of the extent to which the federal Constitution protects the representative democracy of the States was debated and what I am seeking from you is help on whether what was said in McGinty is, as it were, a restriction on the extension by the court of the restraint that has been found unanimously in Lange to the State Parliaments. That is the problem I have.

MR LOWE: I do not know whether I can answer your Honour now, but I will endeavour to answer your query as soon as I can.

KIRBY J: You have a second argument and that is to say let it be for the Federal Parliament. Such is the issue of corruption that it is a national issue as well as a State issue and therefore that means that State Parliaments cannot put restrictions because such restrictions impede the free expression necessary for the representative democracy of the Federal Parliament. So, I understand you have that second stage, but it seems to me logical that we should first get clear something on which there has been a lot of general dicta but has not yet had to be finally determined, as it seems to me, arguably, it may have to be determined in this case.

MR LOWE: Yes. One of the issues that is raised by your Honour, in my respectful submission, is the nature of representative democracy in Queensland, it being a unicameral legislature, it does not have a superior court of review like other States and Territories, so it stands alone in that respect.

GLEESON CJ: Like New Zealand.

MR LOWE: Like New Zealand. But the issue of corruption between the executive arm of government and a unicameral legislature is a more difficult phenomenon, one to agitate or protest about, than – I hear what your Honour the Chief Justice is - - -

GLEESON CJ: No, I think this is a very entertaining submission, but the point you are coming to, as I understand it, is one concerning the operation of section 7(1)(d) in the light of the Commonwealth Constitution.

MR LOWE: Yes.

GLEESON CJ: Is your point limited to the “abusive, or insulting” aspect of the provision?

MR LOWE: He was only charged with insulting, and that is only the issue for determination in this Court.

GLEESON CJ: So we are only concerned with “insulting”?

MR LOWE: Yes. There may be good policy grounds why threatening and abusive words may be controlled, but when you have insulting language that is controlled – and again I get back to the example of heckling of the Prime Minister or whoever in Townsville Mall. In my submissions I deal with the nature of political debate in this polity. It can be rancorous and mixed emotions - - -

GLEESON CJ: All you need to say is that it can be insulting.

MR LOWE: Yes, it can be insulting. The broader issue raised by this appeal is not the characterisation of the utterance but the characterisation of the relevant law. The first limb of Lange, as Justice Kirby indicated, does the law effectively burden the implied freedom of political communication and discussion at the State level? I attempt to deal with the issue of the first limb of Lange in my submissions in paragraphs 9.2 to 9.16. The provision creates a legal restriction on communication and imposes a potential penalty of criminal record, financial penalty or fetter upon the personal liberty by the imposition of imprisonment or conditional release on recognizance. Let us not forget that the power of arrest will deprive an individual of their liberty for using insulting words for as long as it takes to get bail.

GLEESON CJ: Could I ask you a question about the interpretation of paragraph (d). Does the offence of using insulting words to a person require that the insult be an insult to the person to whom the words are used?

MR LOWE: No, it does not. I attempt to deal with that in my submissions about the nature and scope of the offence provision and - - -

GLEESON CJ: If that is right, that has some significance on the breach of the peace argument, does it not?

MR LOWE: Yes, it does, but first, as the offence provisions of “obstruct a police officer” and “assault a police officer” – these are the ancillary offences for which the appellant was convicted. They have, as a precondition, that there has been a – I think the words are “obstruction of a police officer in the execution of their duty”, or otherwise it is in the “performance” of their duty. Now, in order to get to an obstruction or assault which is based on that precondition of execution of their duty, one has to have a breach of the peace and something that gives rise to liability, in the sense of arrest without warrant.

The common law about breach of the peace is that there has to be an actual or imminent apprehension of breach of the peace. That was the common law take on breaches of the peace, and nothing is different in terms of the Code, which has its own particular and specific provisions for breaches of the peace. The issue here for this appeal is whether an utterance which can be characterised as an utterance relating to political speech, which is governed by the implied power of political communication and discussion – whether that affects a police officer’s power to arrest for breach of the peace.

The second limb of Lange is split into two elements, as the Attorney-General for the Commonwealth has submitted, and we accept that those elements are correctly identified by the federal Attorney. Is the object of the State law compatible with the constitutionally-prescribed system of representative and responsible government and the procedure in section 128? The second element is, is the State law reasonably appropriate and adapted to achieving its object? This raises the question of the applicability of the doctrine of margin of appreciation – the margins doctrine, as it is called overseas – the application of that doctrine to domestic legislatures in a federation.

McHUGH J: But why should this Court entertain that doctrine? It was a doctrine developed by the European Court of Human Rights because it has to apply the European Covenant to many, many countries with different cultures, different legal backgrounds. Why should we import that doctrine into this country?

MR LOWE: I do not accept that this Court should. In fact, it is a foreign doctrine - - -

KIRBY J: That does not necessarily mean it is wrong.

MR LOWE: No, it does not.

KIRBY J: But I agree with Justice McHugh, it was devised for a different purpose.

MR LOWE: Indeed.

KIRBY J: We are here trying to say whether a law is within power. I think the difficulty of the margin of appreciation formula is that it rather gives more credence to the legislature and the Executive Government than the Constitution permits. We are entrusted with the Constitution, and margin of appreciation rather connotes that the Executive Government and the legislature are entitled to do what they can, and if it is within their margin of appreciation, well, that is it, we cannot interfere. That is not really the rule of law.

MR LOWE: Yes, and I wish to be heard about why it is that the margins doctrine is inapplicable in a federation such as Australia.

GUMMOW J: Well, do you agree with the submissions of New South Wales, which likewise - - -

MR LOWE: I read their submissions to indicate that they were arguing the toss about the margins doctrine as being applicable and relevant to the application of the relevant test.

GLEESON CJ: When you say applicable, you are talking about the Commonwealth Constitution, are you not?

MR LOWE: No, the margins doctrine applying to State legislature, State legislation such as section 7(1)(d).

GUMMOW J: Where does the margin doctrine come from?

MR LOWE: The European Convention.

GUMMOW J: No, in the Australian context. It has to come out of the federal Constitution.

MR LOWE: As an implication?

GUMMOW J: As part of the implication, does it not?

KIRBY J: Have any of the justices embraced this idea of margin of appreciation in this context?

MR LOWE: Yes. It think the relevant collection of references to different judges discussing the margins doctrine is found at page 7 of the Attorney-General for the Commonwealth’s submissions, in particular at footnote 22.

KIRBY J: It may have been a reaction on a particular occasion to that horrible expression “appropriate and adapted”, which comes from Marbury v Madison, I think, which is just an attempt by judges to say what is a sufficient and constitutional connection with power. Other judges have sometimes embraced the idea of proportionality as the formula. Maybe this is the context in which margin of appreciation was used, but it has problems, as Justice McHugh pointed out.

GUMMOW J: You misstate what New South Wales is saying.

MR LOWE: Certainly, I am happy to stand corrected.

GUMMOW J: What they nail their flag to is something different, which appears from 2.8, 2.9 and 2.10 of their submissions, in particular the last few lines of the quotation from Pannick’s book on page 4:

national courts . . . some circumstances in which the legislature and the executive are better placed to perform those functions.

And Lord Justice Laws in the Transport Case, “deference”, et cetera, and they are repugnant to Australian constitutional law, those ideas, it seems to me.

MR LOWE: What I was referring to, Justice Gummow, is found at paragraphs 2.5 to 2.6.

GUMMOW J: I know, but not even New South Wales can come at that.

MR LOWE: It is an each-way bet.

GUMMOW J: They prefer to slide in at 2.8 and 2.9, which shows how far English constitutional law is yet to go, in my mind.

MR LOWE: As footnote 22 to the federal Attorney for the Commonwealth’s submissions indicate, the issue of the margins doctrine has been principally developed by Justice Brennan in a number of cases and - - -

GUMMOW J: Justice Brennan linked it back to Europe.

MR LOWE: Yes, indeed, he did, and there are dangers associated with taking from foreign contexts a doctrine which may be completely explicable and reasonable in that context but in a different context you have to have some care with its application in a federation.

KIRBY J: I just looked at what was attributed to me in Levy and I said there “(assuming that such [a doctrine] exists)” because I must say I am always sceptical about its importation into Australian constitutional law.

MR LOWE: That is so.

McHUGH J: But the rationale of the margin of appreciation doctrine is that the Convention does not need to be applied uniformly to all the parties to the Convention. Now, that is the opposite of the federal Constitution which has to be applied uniformly to all the States.

MR LOWE: That was one of the issues that I was going to submit to the Court, that uniformity is extremely important in the implied freedom of liberal communication and discussion, as it is for all implications. We do not have the diversity that is found in Europe where the European Convention is applied and there is a real issue of whether the margins doctrine applies for a purely domestic matter within a domestic regime.

McHUGH J: It goes beyond that because the implied freedom arises from representative government of the Commonwealth and therefore you cannot have any distinction between your freedom of communication in one State or another in respect of that matter. You cannot have one rule for Western Australia and another one for Queensland when you are discussing matters related to the representative government of the Commonwealth.

MR LOWE: Yes, essentially it is applied by the European Court as part of its supervisory jurisdiction and that is not an equivalent situation to the matter that is now before the Court. In the case of R v DPP; Ex parte Kebilene, which is again one of the authorities quoted by the Attorney-General for New South Wales, at page 380G:

This doctrine is an integral part of the supervisory jurisdiction which is exercised over state conduct by the international court. By conceding a margin of appreciation to each national system, the court has recognised that the Convention, as a living system, does not need to be applied uniformly by all states but may vary in its application according to local needs and conditions. This technique is not available to the national courts when they are considering Convention issues arising within their own countries.

KIRBY J: As Justice McHugh points out, that just runs headlong into the doctrine of our Constitution which is for one nation, speaking the same language with the same shared institutions, same traditions. It is just a different ballpark, as they would say nowadays.

MR LOWE: Yes. My ultimate submission is that the margins doctrine is inapplicable and inconsistent with the federation. There is also another relevant quote at page 381C. Again, quoting about the application of the margins doctrine:

It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified.

The Constitution does not require a balancing process. Lange indicates that there will be a first limb and second limb applied, but the implication itself is unqualified.

I attempt to address this in my submission at 6.6. This is about the strength of the implication. If communication or discussion falls within the ambit of the implied freedom, the strength of the implied freedom applies to it. It is submitted that while the scope of the operation of the implied freedom may be narrow, in a sense the freedom of political communication covers less territory than freedom of communication, which itself covers less territory again than does freedom of self-expression. The strength of the implied freedom is its ability to overcome opposing interests. I say in brackets, or values or other implications arising under the Constitution within its scope.

The relationship between the scope and strength of the implied freedom is that they occur in inverse proportion to each other. The broader the scope of the implied freedom, the more likely it is to be weaker, largely because widening the scope increases the likelihood of conflict with other interests, some of which may be equally or more important. It follows therefore that an implied freedom that is narrow in scope is more easily taken to be very strong within that narrow scope of operation. If this Court finds that the utterances fall within the implied freedom, then it will defeat the legislation. It would either have to be severed or struck down in whole or part, such is the nature of the implied freedom. This Court has found it is extremely narrow political communication and discussion.

CALLINAN J: Can the implication be expressed so simply? Should it be subject to a qualification that the freedom is a freedom to communicate politically or communicate on political matters, not recklessly or not unreasonably? I have in mind what this Court held would constitute a defence to defamatory proceedings at page 574 of Lange.

MR LOWE: Yes.

CALLINAN J: Why should not the implication be read subject to that qualification having regard to what the Court said with respect to a defence to defamation - - -

MR LOWE: I hear what your Honour Justice Callinan says. The issue for an offence provision may not be so easily applied in a criminal context. There could well be an offence provision which - - -

CALLINAN J: You have to identify first, have you not, what the implication is? People need to know what they may or may not do lawfully. We can read the express language in the Constitution and we can see what is permitted or not permitted as a matter of clear expression. Why should not anybody seeking to rely upon the constitutional implication of free speech be obliged to express the implication in at least equally clear language? It is all very well to talk about freedom of communication in political and governmental matters, but what is meant by that?

MR LOWE: In this case, it can only be raised or exercised, as I have submitted, in a nature of - - -

CALLINAN J: Yes, but why should, with all due respect, one be able to refer in broad and imprecise terms to an implication, whereas, if one is going to rely upon the actual written words of the Constitution, one is confined to the clear and express meaning? Why should there be greater latitude because it is an implication? For myself, I would like to know what the precise implication is that is to be found in the Constitution. I would be indebted to anybody at the Bar table who can assist me in that in due course.

MR LOWE: The first thing that I wish to say in response to Justice Callinan is this. The offence provision is a broad, sweeping offence provision; it catches many sorts of utterances. The implied freedom can and will be exercised now and in the past, in Mr Coleman’s case, and in the future, where a person is charged with using insulting language, if that is the offence provision. The problems that your Honour has identified is because of the broad nature offence provision. It catches all these utterances and there are no qualifications - - -

CALLINAN J: Even the most unreasonable and reckless of utterances.

MR LOWE: Well, if one has a very unreasonable utterance, untruthful utterance, that may well be caught by the civil law, but whether it is caught - - -

GLEESON CJ: The problem is, is it not, that freedom to behave reasonably is not much of a freedom?

MR LOWE: Yes, and in this polity many people are very - - -

GLEESON CJ: If you are only free to behave reasonably - - -

MR LOWE: You are free to behave in whatever - - -

GLEESON CJ: If you are only free to behave reasonably, you do not enjoy much liberty.

MR LOWE: That is right. If it curtails the way that you had to deal with people, if all you can do in a public forum is to put up your hand and say, “I disagree”, that is not much of a freedom.

GLEESON CJ: But the problem to which Justice Callinan addresses attention involves a need, does it not, to be as precise as you can be about the implication? In Melbourne Corporation there was an implication about which courts have never been able to be very precise, but they have to do the best they can. What is the best you can do by way of formulating the implication that is in the Constitution? Not in other books or in other writings, not in judgments, but in the Constitution what is the implied provision? What is the most precise thing you can say about the implication that arises from the structure or from the content of the Constitution?

MR LOWE: The very difficulties that the Chief Justice has identified have been dealt with, in one sense, and the broad terrain of which we are now traversing, which is freedom of speech, freedom of conduct to agitate, raise an issue, a concern, in the domestic legislature - - -

GLEESON CJ: But it is freedom in the sense of conduct that cannot lawfully be proscribed by State legislation. That is what we are here concerned with, freedom in that sense.

MR LOWE: There are public morality statutes which will govern the use of language - - -

GLEESON CJ: But we are talking about a limitation on the legislative capacity of the States in this context, are we not?

MR LOWE: We certainly are.

GLEESON CJ: So that is the kind of freedom – freedom in the sense that you can do whatever the law does not stop you doing. So you are saying the Constitution contains an implication that it is beyond the capacity of the Parliament of Queensland to stop you insulting people in a public place.

MR LOWE: That is the essential nub of the issue. I wish to take your Honours to the case - - -

GLEESON CJ: What is it in the Commonwealth Constitution that produces the result that the Parliament of Queensland cannot pass a law against insulting people in public places?

MR LOWE: In answer to that, it is because the offence provision will apply both if there is a State election, which does not concern this Court, and if it is a federal election, then it will directly concern this Court. I think I indicated in my reply a demonstration can occur spontaneously.

McHUGH J: But a statement about the corruption of the police force, including State police officers, is a matter related to the political freedom of communication, is it not? Section 44(ii) of the Constitution assumes that nobody shall be in Federal Parliament if that person has been convicted of particular offences. It assumes that those who commit offences will be arrested and charged, and the persons to do that are the police force. So if State police do not enforce laws because of corruption, then section 44(ii) of the Constitution will not operate as the Constitution intends it to.

MR LOWE: Yes, I embrace that.

GLEESON CJ: It is the next step. I am not challenging your argument but I want you to identify in the Constitution where it is you say therefore the Constitution contains an implication that it is beyond the legislative capacity of the Parliament of Queensland to make it an offence to accuse the police of not enforcing the laws against corruption of politicians.

MR LOWE: To answer the Chief Justice, I think it was Justice Brennan in the earlier cases of freedom of communication which was discussed, Nationwide News or the like, talked about public affairs, that anything relating to public affairs could give rise to the implication of freedom.

CALLINAN J: “Public affairs” sounds a bit like “public figures” to me.

MR LOWE: It is very broad and the cases have gone on from public affairs.

McHUGH J: You should not run away from that. Justice Callinan is challenging you, but what is a law with respect to trade and commerce? Is it a law with respect to regulating the operation of slaughterhouses, a law with respect to trade and commerce because the cattle are going to be exported overseas? This Court held it was in Noarlunga. You would want to know a bit about constitutional law to read that out of the express words of the Constitution. The Court has to make judgments about all these matters, particularly because of the words “with respect to”.

CALLINAN J: It is easier though if you have a text. If you have an implication, people have a right to know how far the implication extends. People have to know what the law is.

KIRBY J: But we did not have a text in the judges’ salaries case of Austin and yet the Court drew the inference out of the Constitution.

CALLINAN J: With a great deal of precision, if I might respectfully say so. I was not sitting on that case but it is all set out there very precisely.

MR LOWE: Precision in this area is extremely difficult because of the diverse nature of the conduct involved and the speech involved. I think Justice McHugh may have said something in Levy’s Case about conduct and - - -

McHUGH J: But you start with a prima facie rule, do you not, that if the law places a burden on freedom of communication about political and governmental matters, then prima facie it is invalid? But its validity may be upheld if the law seeks to achieve some other legitimate object compatible with the Constitution and the means of doing so are reasonably appropriate and adapted to achieving that end.

KIRBY J: That is our text; that is Lange.

MR LOWE: Yes.

McHUGH J: So you start with the concession, I think, from most of your opponents – perhaps all of them – that this is a law that burdens the constitutional freedom and then it is in effect up to them to justify that burden by showing that the law is really aimed at some legitimate object, in this case keeping the peace.

MR LOWE: Yes, that is so.

McHUGH J: As I understand it, the answer of the majority in the Court of Appeal was that it just goes too far.

GLEESON CJ: No, not this one. The Court of Appeal upheld this provision you are attacking. The majority of the Court of Appeal upheld this provision.

MR LOWE: Yes, and it is the minority that held it to be invalid.

CALLINAN J: Mr Lowe, the Chief Justice pointed out to you that the freedom to do only what was reasonable may not be a very large freedom at all, but there may be a distinction between unreasonable conduct and, if you like, reckless or grossly reckless conduct. It may be that absolutely reckless conduct, in speaking, in speech, may do nothing to further freedom of political communication. Indeed, it may be a burden upon it, on one view.

MR LOWE: Or it could be a positive on another view, depending on the diverse range of - - -

CALLINAN J: How does utter recklessness serve any public purpose, to go around recklessly saying things about people, things that are false of which you have no basis at all, which you do not know whether they are true or you know them to be untrue? How does that further political communication? What public interest does that serve?

MR LOWE: To tie it back to a concrete example of corruption, very difficult to prove corruption and the assembled forces of the State found it very difficult to - - -

CALLINAN J: I do not know about that. Well, that contains an assumption that corruption is very difficult to prove. Cases are going through the courts every day about corruption.

KIRBY J: There are institutions that have been established now, including in Queensland.

MR LOWE: Yes, the Criminal Justice Commission.

KIRBY J: If you look at it from the point of view of how the law operates in Australia, your client was handing out a document saying a particular policeman was corrupt.

MR LOWE: Not just one, but yes, the arresting police officer.

KIRBY J: He was hinting that there was general corruption. Now, the problem with that from the social point of view is it is very difficult for that particular policeman to respond, defend his reputation, defend his family’s name in the suburbs - the town, and there are institutions that are provided to investigate.

CALLINAN J: And not one of which, I might mention, is referred to in Lange. Criminal justice commissions, ombudsmen, senate inquiries – you do not find any reference to any of those in Lange.

MR LOWE: Again, that might be a fetter on your freedom if you restrict a person to communicate only with government authorities, particularly if you have some nagging suspicion about conspiracy or whatever between the government of the day and the police. That, itself, in my respectful submission, is a fetter on your reasonable conduct.

KIRBY J: Just assume for a moment, just for a fleeting second, that this accusation is absolutely false. The trouble with it is that if it goes unrepaired and is protected by the Constitution then the people who are assailed in this way and their families have to live with that burden if some of the mud sticks.

CALLINAN J: Particularly if you do not have tens of thousands of dollars to spend on a defamation action which may or may not, in the end, be fruitful anyway. You may get a judgment which is an absolutely hollow judgment.

MR LOWE: But that does not justify - - -

CALLINAN J: It is not as if there is some ready alternative available to citizens carrying out official duties.

MR LOWE: That is the difficulty with the court system that Justice Callinan has indicated, and it is a real one: hollow judgments, no judgments - - -

CALLINAN J: We are looking at public affairs. This whole debate was supposed to take place in the context of public affairs, assumptions about public affairs and government matters and political matters. If we are going to look at the spectrum, we should look at the whole spectrum, one of which is the relative inutility on many occasions of defamation act.

MR LOWE: If you take a contrary example, if the mud should stick because it is true and somebody is arrested, incarcerated, then you have the contrary, which is political speech has been stifled.

GLEESON CJ: Where does it leave us in this case if we were to come to the view that there are some forms of regulation of insulting behaviour that a State legislature can engage in in a manner that is not incompatible with the implication found in Lange, but that this particular form of regulation goes beyond that? Where does that leave us in this case? Let us suppose we thought that there are some forms of insulting behaviour or some circumstances of use of insulting words that could be proscribed without offence to the Lange implication, but that this provision is wider than that; what is the consequence?

MR LOWE: Well, might I just answer the Chief Justice this way. My preferred position is that the offence provision is too wide, there are ways and means of reformulating the offence provision which would not give rise to problems such as the implied freedom of political communication and discussion, without reasonable excuse or without reasonable cause. In fact, this offence provision when, back in 1858 - and I think in the majority judgment Justice of Appeal Thomas indicated that the precursor actually was - the offence provision was to the effect with intent to cause a breach of the peace or its imminent apprehension thereof. So there was in the original provision an additional element that had to be proved which, if you proved it, then it would not give rise to this problem that the Chief Justice has just indicated.

GLEESON CJ: Well, is it consistent with your argument to say that there is a capacity in State Parliaments to regulate insulting behaviour in public places in a manner that is not inconsistent with the Lange principle, but this represents legislative overkill?

MR LOWE: Yes. Well, it can only be cured by the legislature because this Court can only determine whether, in fact, the offence provision is invalid because it falls foul of the implied freedom of political communication. The preferred position of the appellant would be that this legislation is referred back – or the insulting words severed because it is too broad, it is referred back to Parliament to be cured by legislative drafting, and there are ways and means of overcoming these problems.

GLEESON CJ: Suppose you persuaded us to that point, where does that leave you in relation to the offences concerning the arrest powers of the police?

MR LOWE: That is a difficult area of the law. I have read the respondents’ submissions, each of them attacking the appellant’s position on this point. It gets back to what Chief Justice Latham said in either 1941 or 1942, depending on the page of the CLR you are reading. It is void ab initio. It was never within the capacity of State Parliament to pass a law which affected a person’s right to utter these words.

GLEESON CJ: Let us suppose that is right. Where does that leave policemen who are charged with the responsibility of enforcing the law and who may not be expected to be in a position of making Lange judgments on a case-by-case basis?

MR LOWE: No, they will not be. In fact, one of the submissions was to the effect that this could put police officers in a very difficult situation, but the number of times that an utterance could be characterised as falling within the ambit of the implied freedom must be a rare commodity, at the best of times. It happens in other countries in the world – Canada has a charter of rights, New Zealand has its own bill of rights, America has its constitution – offence provisions are found to be invalid in those jurisdictions. It does not cause the police to be unworkable.

GLEESON CJ: I am just seeking your comments on the construction of the legislation that you handed up to us earlier. Section 38 of the Vagrants, Gaming and Other Offences Act talks about arresting someone:

who is suspected, on reasonable grounds, of having offended –

Now, you have a statute that says you cannot use insulting words in a public place, somebody uses what are manifestly insulting words and a policeman, not being familiar with Lange, exercises a power of arrest. Where does that leave the policeman?

MR LOWE: If this Court accepts that section 38 is applicable, then it is not a reasonable suspicion or reasonable grounds of apprehension giving rise to the arrest. It is because the person has been found offending against section 7.

GLEESON CJ: So that the provisions of section 38 relating to suspicion “on reasonable grounds, of having offended” do not apply in the case of a person - - -

MR LOWE: Arrested under section 7. That is not the end of the story; it is Queensland legislation, after all. I am indebted to the first and second respondents, one, for preparing this document, but also for indicating at page 3 that the Police Powers and Responsibilities Act in 1997 was passed, which had sections 8 and 9, and they are also relevant about the extent to which 38 governs the power of arrest.

GLEESON CJ: And section 546 of the Criminal Code?

MR LOWE: That is just a general power. So what we have: section 38, which is a specific power of arrest for section 7, which is not preconditioned on having a reasonable suspicion. It is, if you are found offending, in the opinion of the arresting police officer, that - - -

KIRBY J: But Justice Gaudron made a point on the special leave application. She said the premise on which section 38(1) works is that a person is found offending. If in fact the Constitution prevents the offence from biting in the particular case, then the premise that gives rise to the operation of section 38, and for that matter 546, is not enlivened.

MR LOWE: Yes, that is right. One has to have an offence before you have the power to arrest and again, going back to the offence provisions, whether in arresting a person you are exercising any duties at all. Both the offence provisions of assault police, plus obstruction, have that additional element to be proved, which is the police officer must be either performing duties or exercising duties.

GLEESON CJ: I am not suggesting you are wrong but I want to understand the line of reasoning. Is it this? If your first argument is right, then there is no offence of using insulting words in a public place?

MR LOWE: Yes, and no breach of the peace either.

GLEESON CJ: If there is no offence of using insulting words in a public place, then it is impossible for a police officer to believe on reasonable grounds that the offence of using insulting words in a public place has been committed.

MR LOWE: That would be section 546.

GLEESON CJ: Is that the argument?

MR LOWE: It is, but it is also the principle of statutory construction. Section 38 is a rare arrest provision which has two bases for arrest: one, a person is found offending – and that gives rise to the power of arrest, which is a very broad power of arrest indeed – and then you have - - -

GUMMOW J: What do you say about what Justice Kirby was putting to you about the meaning of the phrase “found offending” in 38(1) when read with 7(1) and read with Lange and what the Chief Justice was putting to you?

MR LOWE: No offence has been committed, hence there is no need to consider the application of 38; it is just an unlawful arrest.

KIRBY J: But my understanding is that the rebutter that is then presented against you is under the Police Powers and Responsibilities Act 1997, section 35(1), which says:

It is lawful for a police officer, without warrant, to arrest a person the police officer reasonably suspects has committed or is committing an offence –

The suggestion, as I understand it, is that that does not require that there be an offence but simply a reasonable suspicion of the commission of an offence. Given that a police officer is not into the position of having an immediate consultation with counsel about whether Lange applies, section 35 then locks in to give a defence to the police officer if the police officer reasonably suspects that there is committing an offence.

MR LOWE: Providing you satisfy (a) to(k) or any one of those placita. That may be a very difficult question to answer for the police officer in this case:

(a) to prevent the continuation or repetition of an offence - - -

GLEESON CJ: I am not saying it is wrong, but the only answer you can give to that must be this, must it not, that “offence” means a real offence?

MR LOWE: Yes, one that is not constitutionally - - -

GLEESON CJ: If there is no such thing as an offence of using insulting words in a public place, then that is not something that falls within the meaning of the expression “an offence” in section 35.

MR LOWE: That is right.

KIRBY J: That was Justice Gaudron’s point on the special leave.

MR LOWE: Yes. It affects all of the legislation.

KIRBY J: Mr Keane was not then able to help the Court but no doubt will do so today.

MR LOWE: Yes. Just returning to section 38, because it may become of some significance when the first and second respondents address your Honours, that they will be relying on sections 8 and 9 of the Police Powers and Responsibilities Act to say section 38, as I understand the argument, is of no consequence because it has been overtaken by this legislation.

GLEESON CJ: Been overtaken by what legislation?

MR LOWE: Well, as I understand the argument that will be formulated, if your Honour the Chief Justice is looking at section 8 and your Honours are looking at section 8, the Vagrants Act does not appear in schedule 1. That is found underneath section 9. Section 8(2):

does not prevent a police officer from exercising a power or performing a responsibility under this Act –

Now, that Act is the Police Powers and Responsibilities Act and any power of arrest is found at the last page, section 35. Then they go to section 9, which is “Inconsistency”:

To the extent of any inconsistency, this Act prevails –

My simple submission to that is in relation to section 38 there can be no inconsistency. It is clear on its face that a person can be arrested when they are found offending. The arrest - - -

GLEESON CJ: The question is this, is it not, how, if at all, does section 35 apply to an error of law by a police officer? Let us suppose, for example - - -

MR LOWE: Section 35 does save the arrest, providing you fall within any of the subparagraphs (a) to (k).

GLEESON CJ: Let me give you an example.

MR LOWE: Yes.

GLEESON CJ: Suppose that tonight the Queensland Parliament enacts legislation repealing a certain provision of the Vagrants Gaming and Other Offences Act and it receives the requisite assent, but nobody tells the police officer out at Gympie that that legislation has been enacted and the next day the police officer goes along and arrests somebody for committing that offence that is no longer an offence at law. How, if at all, does section 35 apply to that?

MR LOWE: It does not apply. It is a protective provision. If somebody was arrested because the police officer believed that there was a law in force, it is an invalid arrest. That is the end of that.

GLEESON CJ: So you do not inquire into the reasonableness of the police officer’s mistake of law?

MR LOWE: No, you do not and, in this context, because of its rarity, it is an invalid constitutional – the offence provision is found to be unconstitutional. It is a rare situation, it is not common place and if it is unlawful because it is valid ab initio, it should never have been passed, there was no power to arrest and that enlivens the issue of whether, because of what happened, the appellant obstructed the police officer and/or assaulted him.

GLEESON CJ: Well, your argument is that the concept of reasonably suspecting that an offence has been committed assumes that there is an offence of the kind in question and the reasonableness goes to the grounds of suspicion on the part of the policeman that the facts necessary to constitute the offence exist.

MR LOWE: Yes, and I think the first and second respondents rely on the case of Veivers from Queensland to support the proposition. But the case of Veivers is about a valid offence provision. There was no issue there. That is a factual issue – difficulty of proving an element of the offence which is a factual issue enlivening whether the prosecution can ever prove its case. Now, reading Veivers where there has been an acquittal and another arrest, this offence provision was not found to be one beyond power ultra vires or constitutionally invalid because of the implied freedom. It was because the police officer believed on reasonable grounds that the trespass was to an enclosed yard. Now, that is a factual error.

GUMMOW J: Was this a reserved judgment?

MR LOWE: I cannot assist, your Honour.

McHUGH J: But Veivers is the wrong line of territory, is it not? Is not the right line of territory cases like Hazelton v Potter and Duncan v Theodore which say that if there is no law, then the relevant officer gets no protection? Are you familiar with those cases?

MR LOWE: I am not familiar with those particular cases, but the proposition - - -

McHUGH J: Well, Hazelton v Potter is 5 CLR and Theodore is in 23.

KIRBY J: Without mentioning them, I think that was the line of territory Justice Gaudron was raising in the special leave application.

MR LOWE: Yes. I am aware of the proposition and, with respect, I would embrace that as the correct statement of the law. There are a few issues associated out of this line of argument. I wish to take the Court to Boddington [1998] UKHL 13; [1999] 2 AC 143 at 173F where Lord Steyn says:

In Eshugbayi Eleko v Government of Nigeria . . . a habeas corpus case, Lord Atkin observed, at p. 670, that “no member of the executive can interfere with the liberty or property of a British subject except on condition that he can support the legality of his action before a court of justice.” There is no reason why a defendant in a criminal trial should be in a worse position. And that seems to me to reflect the true spirit of the common law.

Whilst his Honour may be commenting on a common law, it is no less applicable to a Code State like Queensland, that particular proposition.

McHUGH J: You should really have a look at cases like Duncan v Theodore and Hazelton v Potter. We are not in the area of common law or a unitary system of government. If the Constitution says a law is invalid, one would think that executive officers cannot be going along and arresting people for breaches of non-existent laws.

MR LOWE: Exactly.

GLEESON CJ: That must be right, must it not? If you had a law of Queensland that imposed a duty of excise on the sale of tobacco and the law contained a provision that anybody who engaged in a transaction that attracted the duty was required to put in a return and that it was a punishable offence not to put in a return and that you would go to prison for it, and it was all invalid because it was a duty of excise, then police could not go around arresting people for breaking the law, could they?

MR LOWE: Yes, that is right.

McHUGH J: I remember in James v The Commonwealth [1939] HCA 9; (1939) 62 CLR 339 James recovered damages for the seizure of his fruit.

MR LOWE: Yes, that is a relevant case, your Honour. There is no doubt about that. Again, the line of authority that your Honour has been agitating, I think, is in the civil arena, but is no less applicable to the criminal law arena.

GUMMOW J: No. All these regulatory schemes struck down under section 92 created offences. That is why people got upset.

MR LOWE: Well, yes, they are more like the customs - - -

GUMMOW J: They were being prosecuted.

MR LOWE: - - - quasi-civil – quasi-criminal - - -

GUMMOW J: No, I do not think that is right at all.

McHUGH J: Hughes v Vale was not just about money. They were offences.

GLEESON CJ: Well, does that bring us to the completion of your argument?

MR LOWE: Yes, it does, your Honour, unless you wish to hear from me further on that particular issue.

GLEESON CJ: Thank you. Yes, Mr Solicitor for Queensland.

MR KEANE: If the Court please, as between the respondents, it is proposed that the third respondent address the Court in relation to the validity of section 7(1)(d) of the Act and then our learned friend, Mr Gibson, will address the Court in relation to the issues of the arrest powers of the police.

GLEESON CJ: Did you choose that between you?

MR KEANE: Sometimes, your Honour, rank has its privileges. If we can take the Court first to the provisions of section 7(1)(d) of the Act, which are usefully set out in the judgment of the President, at page 161 of the appeal book. If we can draw your Honours’ attention to the provisions of section 7(1)(d), which are set out in paragraph [8] of her Honour’s judgment. If we can take up the question your Honour the Chief Justice raised with our learned friend, the couple of things we would say about the construction of section 7(1)(d), which speaks of using “threatening, abusive or insulting words to any person”, your Honours will note, first of all, that, of the various subparagraphs, it is the only one which concerns itself with conduct “to a person”.

In relation to your Honour the Chief Justice’s question as to whether it is apt to include insulting words that are not insulting of the person to whom they are used, our submission would be that reading the statute as a penal statute, that is to say reading it narrowly, and bearing in mind the constitutional question, we would submit that the insulting words are words insulting to the person to whom they are used.

HAYNE J: This formula is not unique, is it, Mr Solicitor? You can find a provision like this in the 1891 Police Offences (Amendment) Act in Victoria minus the reference “to any person”, but you find this collocation of “threatening, abusive, or insulting words” without reference to “breach of the peace”.

MR KEANE: Your Honour, it may be that one finds it in such contexts.

HAYNE J: Are we to make anything of the fact that this seems to be a statutory form that I suspect but do not know can be traced to a common root? It can be traced throughout some – maybe all for all I know – of the States of the Commonwealth. What do we do about that?

MR KEANE: Your Honour, our submission is - - -

HAYNE J: Have we looked to see whether that is right?

MR KEANE: Our submission is that one looks at it and asks in terms of the second limb of Lange whether it is apt to achieve a legitimate end compatible with the Constitution. Our submission is that it is apt to achieve two relevant legitimate ends. One is that it is apt to prevent breaches of the peace.

HAYNE J: That is a bit odd when, for example, in Victoria for many years it sat next to a provision talking about insulting words that would cause a breach of the peace or intended to cause a breach of peace.

MR KEANE: Your Honour, one can understand why it might be thought that to add the element of intent, which requires one to prove the intent with which words apt to cause the result were used, might be thought to be unnecessary in certain cases where one should look at the objective quality of the words rather than the intent with which they are used, because breaches of the peace caused unintentionally by words apt to produce it by words that are provocative in their natural sense but not intended to be so caused as much of a problem as words that are intended to be so.

Your Honour, the other thing we would wish to say about it, having brought attention to the fact that it is the only one of these provisions which is concerned with the use of words to a person as opposed to simply seeing things in public places or behaving offensively, is that it is concerned with conduct directed towards a person. That is relevant so far as the likelihood of provocation to a breach of the peace is concerned, but it is also relevant to another end, another objective, compatible with the Constitution, which is the prevention of denigration or intimidation of others. So that others get to have their say too.

HAYNE J: Why is that limited then to “public place”?

MR KEANE: I suppose having regard to the breadth of the definition of “public place”, it does encompass those areas where people are likely to be congregating together in numbers and perhaps engaging in assembly or discussion or debate and perhaps it is thought to be drawing a sensible line not to include private homes, for example. We notice that it is suggested in our learned friend’s submissions that by regulation the definition of “public place” can be expanded and it is suggested it might be expanded to private homes. We say as to that that is, with respect, fanciful and one is fantasising one’s way into difficulties.

McHUGH J: But it can be near to any public place.

MR KEANE: Your Honour, in relation to public places, it is where people assemble, it is where one does not want to have breaches of the peace that can cause physical harm and it is also places where other people may wish to have their say.

McHUGH J: But supposing somebody is in a hotel abutting a public place and insults his wife in a hotel room, that would be an offence under this section, would it not?

MR KEANE: Quite possibly and, might we say, a very long way from anything which might remotely be thought to impinge on the prospects of fair elections and fair referenda, which is what takes us to the Lange test. Your Honour Justice Callinan raised the question of the content of the implication which the Lange test protects. It seems to us, with respect, that what is prescribed by the implication from sections 7, 24, 64 and 128, and perhaps now section 44(ii), having regard to your Honour Justice McHugh’s suggestion, a law is incompatible with free communications relating to federal elections or referenda. In relation to the difficulty which your Honour Justice Kirby raised with our learned friend at the outset, it seems to us, with respect, in terms of the first limb of the Lange test, the first question is, does the law effectively burden freedom of communication about such matters? Well, we have to accept - - -

CALLINAN J: Can you just state that again for me, Mr Keane, please: laws incompatible with freedom of communication - - -

MR KEANE: Laws incompatible with freedom of communication relating to federal elections or referenda.

CALLINAN J: Thank you.

KIRBY J: Now, remind me what the facts of the Lange Case were. Mr Lange was the former New Zealand Prime Minister. How did words written of him concern a federal election?

MR KEANE: That is a good question, your Honour, but the question arose though because, in the context of laws regulating the availability of qualified privilege, in respect of defamation actions - - -

HAYNE J: But the plea was held to be bad.

MR KEANE: - - - yes – were so broad that they might adversely affect that freedom, even though the particular communication with which they were concerned had nothing to do with it. So that the first limb says, is the law wide enough on its face to impede all communications, because all communications include as a subset political communications. Now, that is why, with respect, the first limb is very easy to satisfy and, in our respectful submission, it is why the second limb should not be treated as being overly difficult to satisfy, because the second limb is the saving provision, bearing in mind that what one is always concerned with, as has been said, is – the ultimate question is whether the law is compatible with the elections and referenda which the Constitution requires.

So one then goes to the second limb, bearing that objective in mind, and the second limb is, if the law effectively burdens that freedom, is the law appropriate and adapted to serve a legitimate end, the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by section 128 for submitting a proposed amendment to the Constitution to the informed decision of the people.

KIRBY J: If I can just explain my problem with that. It allows you to glide over the first limb and say any old thing that is said is going to have some inhibition but, as I understand it, the first limb is intended to be a true test. What I do not have clearly in my mind is, is it confined to the expression that is relevant to a federal election because if it is, at least that is a criterion and it will, as it were, limit a little the content of free speech that is relevant to that object, whereas if you say the Constitution also includes State Parliaments, State Parliaments have a federal role of electing senators in certain circumstances and for that and other reasons in the general design of the Constitution they are also intended to be part of representative democracy. Therefore you do not have to show that it is relevant to a federal election but it is enough that it could be relevant to discussion of issues of corruption which undoubtedly have been, as we all would know, issues of significance in State elections in Queensland and elsewhere.

MR KEANE: Your Honour, I do not know that we can assist your Honour beyond saying that the statement of the test, or the first limb of the test, is one which is focused upon the law, not upon the character of the utterance that is struck at. We apprehend that it is as broad as it is because - - -

KIRBY J: The sort of considerations Justice Deane mentioned - - -

MR KEANE: Yes, quite.

KIRBY J: - - - that discussion is integrated and you cannot dissect it.

MR KEANE: And we would then say one goes to the second limb, and when the first limb is so easy to satisfy, as we say, one should not be overly strict about the second, but then if one fails, if the Parliament’s measure fails at the second limb, then questions of severance arise and when questions of severance arise it may be possible, it may not – but it may be possible to read down the law so that it applies to the particular utterance because the particular utterance is not concerned with federal elections or referenda.

GLEESON CJ: Now, go back to Justice McHugh’s example about the wife who insults her husband in a hotel abutting a public place in a conversation that has absolutely nothing to do with elections of any kind, does Lange produce the consequence that because the provision is wide enough to embrace an insult offered in relation to a matter that concerns federal elections or referenda, the law against insulting words is struck down and the wife can take the benefit of that?

MR KEANE: The husband can take the benefit of it in that he has not committed an offence.

GLEESON CJ: Yes, well I just turned the example around to lighten it a little bit.

MR KEANE: I thought your Honour was being more than usually devious.

GLEESON CJ: No, I was being politically correct.

MR KEANE: Your Honour, there are a number of difficulties, and if we might just say something about each of them. The first is that we have accepted the Lange statement. The concern that Justice Kirby is raising may raise some question about the stability of the statement of principle, but we are not urging that it is an unworkable test or that it is unstable and should be rejected.

KIRBY J: There have been observations within the Court about the extension of the principle to State and even local government, I think.

MR KEANE: Your Honour, we submit that the test in Lange is a useful guide and, subject to your Honour’s queries about the first limb, a stable statement of principle assisting one to answer the ultimate question, which is, is the State law compatible with free elections and referenda at the federal level? Not a question, we might say with the greatest respect, that one would expect very often to answer against the validity of State law. But to come back to your Honour’s question, one could see that one might have approached the question of formulating a guide to get to the answer, “Is the law compatible with free elections and referenda at the State level?” by simply saying, “Free communications – under this Act you can communicate all you like, but just do not indulge in insulting behaviour of other people”. That would have been a simple answer. You would not even get to the first limb.

But accepting the first limb, your Honour, we would then say that in respect of the second limb the relevant legitimate ends to which this legislation is directed, preventions of breach of the peace, before the wife may react and, secondly, for the protection of the interests of people who should not have to be the subject of threatening behaviour. This is not about a discussion one reads in the paper where the judgment of the arbitration commission is lambasted. This is a case where the statute is directed to conduct directed to people in public places where that may have consequences for others, but also, to take the point your Honour was making earlier, about a freedom to act only reasonably is not much freedom, my freedom to swing my arm ends where my neighbour’s nose begins. The relevant legitimate interest being protected by a provision such as 7(1)(d) is not confined simply for preventing breaches of the peace or stopping them or nipping them in the bud; it is also directed to the interests of people who would otherwise be subjected to insulting, threatening or abusive behaviour.

We say that this law is adapted to that end and we say that it is reasonably adapted to that end, in which event it satisfies the second limb. If it does not – and finally I am coming to answer your Honour’s question – then in the example your Honour has put to us one can say that that utterance, having nothing to do with political communication of any kind, it might be possible in that case to say, applying section 7 of the Acts Interpretation Act (Qld) which is set out in the judgments and which is the equivalent of section 15A of the Commonwealth Act, it might be possible to read down the statute so that it does not apply to insulting words that are insulting words incompatible with free elections and referenda at the federal level.

GLEESON CJ: And how would you apply that in the present case?

MR KEANE: Well, in the present case, the words that were used were not such as were apt to impede free elections or free discourse about elections or referenda at the federal level.

GLEESON CJ: Any law about any kind of speech is capable of applying to federal elections presumably.

MR KEANE: Quite.

GLEESON CJ: If you take paragraph (c), which prohibits obscene language, you can use obscene language relating to federal elections. I can easily think of some examples. How do you apply the Lange test to paragraph (c) in its prohibition of the use of obscene language in public places?

MR KEANE: Well, applying the Lange test, your Honour, one would say, first limb, answer, yes, it can burden, but, second limb, it is a law reasonably adapted to a legitimate end, that is to say the prevention of subjecting one’s fellow citizens to obscenities which the Parliament judges they might prefer not to be subjected to, and it is reasonably adapted to that end and is not incompatible with free elections because one can discourse all one likes about free elections without being obscene about it.

McHUGH J: Yes, but you are cleverly arguing that the burden is on free elections, but the assumption of the Constitution is that there is a marketplace of freedom of communication between citizens and that that marketplace or that market must not be burdened at all.

MR KEANE: Quite, your Honour, we accept that. But accepting that, with respect, the burden goes both ways. If you have the bully and the insult and the threatener in the marketplace saying, “Listen to me” – and various expletives – “You little so and so” and “I do not care what you say”, the bully’s command of the field is apt to exclude others. So that we are really talking about keeping the marketplace free, with respect, and that the measures that have been adopted to achieve that end might be said to be rough and ready is simply a reflection of the rough and readiness of the marketplace.

McHUGH J: Yes, but the problem you have to face up to is the Nationwide News v Wills problem, that there are no defences here. If it is insulting, it is an offence.

MR KEANE: That is the other thing I did wish to say, to take your Honours to that, because it is said by our learned friends, in paragraph 10.7(a), that this case is on all fours with Nationwide News v Wills [1992] HCA 46; 177 CLR 1. We had wanted to take your Honours to that. May we? The relevant passage we wanted to take your Honours to begins at page 65. At page 65 your Honours will see the various provisions of section 299(1) set out. The subsection that was relevant was 299(1)(d), which was the offence of:

A person shall not . . .

(d) by writing or speech use words calculated . . .

(ii) to bring a member of the Commission or the Commission into disrepute.

It is that sort of provision we were referring to earlier, being a provision about someone else. Could we ask your Honours to note the difference between that provision and (a), which speaks about:

wilfully insult or disturb a member of the Commission in the exercise of powers –

or (c):

use insulting language towards a member –

We draw your Honours’ attention to that because of an argument that was advanced in the case that 299(1)(d)(ii) should be read down by reading it with (a), (b) and (c). Your Honours will see this adverted to in the joint judgment of Justices Deane and Toohey at 66 in the passage that begins at about point 5 on the page where their Honours say:

There is some superficial force in the argument that the words of s 299(1)(d)(ii) should be further confined by being construed as referring only to a written or oral attack made on the Commission or a member in relation to an exercise or performance of official powers or functions. The offences created by pars (a), (b) and (c) of s 299(1) are all related to the protection of the actual functioning of the Commission and, once the reference to a member of the Commission is construed as a reference to a person in his or her capacity as such, the words “influence improperly a member of the Commission” in par (d)(i) can readily be construed as referring to improper influence in relation to the actual or potential exercise of official powers. Upon close examination, however, the argument for confining par (d)(ii) by analogy with the other provisions of s 299(1) is unpersuasive. Unlike the prohibitions contained in those other provisions, par (d)(ii)’s unqualified prohibition of the use of words calculated to bring the Commission or a member of the Commission into disrepute cannot, as a matter of mere language, be read as concerned only with an exercise or performance of the Commission’s powers or functions.

The point we are making, your Honours, is that it was the premise of this argument that 299(1)(a), (b) and (c), particularly (a) and (c), were valid. The vice of (d)(ii) was that it was, without any of the qualifications your Honour Justice McHugh has mentioned, a provision that made it an offence to refer in a disparaging way to the work of the Commission. It was a provision that made it an offence to talk about someone. It was distinctly not a provision directed to prevent people acting towards people. It was not directed to conduct directed towards someone else. That sort of conduct has the particular vice, not just that it might provoke a reaction, but that it might cause the other person harm.

KIRBY J: But that is not very likely in a case like this, is it, of a police officer who has the power of the State readily available? At least there is a little suggestion in the appellant’s submissions that really this is a self-interested use of power by the police to stop criticism of the police. In all issues of corruption it all begins with somebody who makes the allegation and at the time it is regarded as very insulting and possibly in many cases is wrong, but that is how change is effected in a democratic society.

MR KEANE: Your Honour, can I respond by saying three things. The first is what your Honour says is absolutely correct and because what your Honour says is absolutely correct and because it is a compelling view, there are now independent commissions against corruption throughout the country. What your Honour says is perfectly correct but our laws have to be understood in the context that Parliaments do occasionally respond to the need for legislation. The second thing we would wish to say - - -

KIRBY J: But there was a time when Parliament did not, and I realise that we now do have institutions, but perhaps the suggestion here is that the institutions are not responding adequately, that the appellant has not had a sufficient response to his complaints.

MR KEANE: Well, there is certainly no suggestion that he sought to exercise rights of inquiry with the CJC.

KIRBY J: We just do not know.

MR KEANE: We do not know, your Honour, but the point is we do not know. The facilities are there. We do not know whether he has got satisfaction. But whether he has or whether he has not, the second thing we wanted to say, with the greatest respect, your Honour is once again focusing on the utterance and not the law. In terms of the application of the Lange test, one is concerned with the law. The question is, does this law, in a way that is reasonably and appropriately adapted to do so, pursue an end compatible with free elections? That is the question.

McHUGH J: Yes, but there is a balancing factor in it. It comes out very clearly in Chief Justice Mason’s judgment in Nationwide v Wills and I followed the same approach in that case, where his Honour the Chief Justice said at page 34 he was prepared to accept that the reputation of the Industrial Commission needed a greater degree of protection than other courts. He said:

However, it is in any event outweighed by the strength of the public interest in public scrutiny and freedom to criticize.

MR KEANE: Your Honour, I could be corrected. I thought the Chief Justice in that case reached the conclusion which he did, and that the reasoning that your Honour has just put to us was part of his Honour’s reasoning to the conclusion that the law in question was not sufficiently connected with the power and that it was rather invalid because it was not relevantly - - -

McHUGH J: Well, one of the differences between Nationwide and the present case is that one of the issues that had to be resolved was whether or not this could be justified under the incidental power to make laws with respect to conciliation and arbitration. But you still have to balance the right to communicate with the means of achieving this compatible object.

MR KEANE: Your Honour, with respect, one thing that is clear – and perhaps I have not been as precise as I should be – we are not talking about a right to communicate. One thing is clear from McGinty and from all the other authorities, it is a limitation on the power of Parliaments to make laws inhibiting a freedom - - -

McHUGH J: That is true.

MR KEANE: - - - inhibiting a liberty. We are not talking about a right to communicate. We are talking about laws and we are asking whether or not it is open to a Parliament to make a law saying that citizens shall not insult other citizens or use insulting words to them in public places and, in relation to that, we are concerned because sometimes that may occur in the course of political debate.

McHUGH J: Yes, but look at this very case – well, let us leave this case aside. A pure political case where somebody says something about a politician that is insulting. Now, applying this law, that is an offence.

MR KEANE: No, your Honour. With respect, that is not right. Once again, we need to be precise. An offence which said it is an offence to say something insulting about someone is precisely the kind of law that was struck down in Nationwide News. This is not that law. This is a law that says it is an offence to use in a public place insulting words to a person.

McHUGH J: Yes, but it - - -

MR KEANE: It is not to comment about their performance at the cricket.

McHUGH J: No, but it so operates in a public place that it inhibits political speech.

MR KEANE: And balances political speech in favour of the person who might otherwise be intimidated and driven from the field or provoked and by taking up arms end speech altogether.

McHUGH J: That is the way you want to look at it, but the Constitution gives priority to the freedom of communication. These rules found in provisions such as section 7(1)(d), they inhibit freedom of speech because people are deterred from voicing criticism even though they believe what they are saying is true because they may be arrested and therefore there is an inhibition on freedom of communication. There are other means by which you can achieve your object without a blanket prohibition on insulting language.

MR KEANE: Your Honour, can we say a couple of things in response. Firstly, we note that in your Honour’s judgment in Levy 189 CLR, I think it was, your Honour at page 623 at about point 4, I think it is, makes a number of points, the burden of which is that speech may be emotional, it may be long, it may be hyperbolic, but in all these manifestations it is protected. We do note, with respect, that your Honour has not there referred in any way to give any support to the notion that it can be insulting, threatening or abusive. We submit, with respect, that is for the very good reason that my freedom to swing my arm does end where my neighbour’s nose begins.

The second thing we would say, with the greatest respect, is that the Court should resist the temptation to accept that those who engage in debate of a vigorous kind are not able to make the points they want to make and to make them fairly and fully and compellingly without insulting or abusing or threatening their fellow citizens.

McHUGH J: This is the establishment view.

KIRBY J: It is a rather condescending view of people’s rights.

MR KEANE: Your Honour, the contrary view is an extremely patronising view of the ability of people to put their point.

McHUGH J: Why? Why cannot people in political debate insult each other? It might be said it is almost the stuff of political debate.

MR KEANE: Your Honour, it may well be but no one has ever said the rules of debate interfere with the operation of the Constitution. Our position is simply this, that one can debate as much as one likes, one can have as vigorous a political debate as one likes, but the fact that one is engaging in such a debate does not mean that the Parliament cannot make a law which says, “Don’t engage in disorderly behaviour; don’t abuse, don’t insult your fellow citizens in doing it”.

HAYNE J: But the bite is in the insult, is it not, Mr Solicitor?

MR KEANE: Well, it is the focus of the case quite.

HAYNE J: But it is the bite. The Minister is a head-kicking, branch-stacking fool, might at least, in some circumstances, be thought to be insulting.

MR KEANE: And, your Honour, that would not be an offence under this provision, if someone were to say, in the paper, the Minister is a so-and-so and so forth. It would be if he walked up to him in the Townsville Mall and said, “You, you branch-stacking, head-kicking little so-and-so”. That would be an offence and, in our respectful submission, that is a concern with which section 7, 24, 64 and 128 of the Commonwealth Constitution and section 44(ii) have absolutely no interest.

CALLINAN J: Mr Solicitor, you have assumed that – I think everybody has – the Lange test is stated at pages 567 and 568 of the report.

MR KEANE: Yes, your Honour.

CALLINAN J: I just wonder whether there is a qualification which emerges from what has been said towards the end of page 576, that what is protected is not only what falls within what is said at pages 567 and 568, but only what falls within it and which is capable of affecting or throwing light on government or political matters in Australia – and I am using the language of the unanimous judgment there – that it is not merely a test of burdening to attract the protection; it has to be something that may or is capable of affecting or throwing light on government or political matters. That, in a sense, is one ratio of the case because the issue was - - -

MR KEANE: That is certainly treating the ratio in terms of confining it as to what it actually decided, yes.

CALLINAN J: In Queensland’s trading relations with New South Wales and in constitutional relations with New South Wales, it geographically located next door – obviously satisfies the same criteria as New Zealand, why should there not be that qualification?

MR KEANE: Your Honour, we would rather put it this way - - -

CALLINAN J: I know you would, and I understand why you would.

MR KEANE: The way we are putting it is to say that one sees Lange and the formulation in Lange as a guide to incompatibility between the State law and the Constitution, because that is the ultimate question. Rather than simply picking up the Constitution in the State law and looking at them and saying, “Is there a conflict?”, one is sensitised to these other issues by the Lange test, but one applies it.

CALLINAN J: But what I have put to you is not inconsistent with that.

MR KEANE: No, your Honour. I am accepting that it is not inconsistent and, indeed, what I hope I am saying to your Honour is, with respect, that what your Honour puts to us we see as being another way of saying you apply the test knowing that the reason you are applying it is to see whether there is incompatibility with the Constitution. It is for that reason that we say that, with respect, it is not surprising that the second limb of the Lange test is readily satisfied by a law such as this.

McHUGH J: But why? Maybe I misunderstood what you said a little earlier, but do you contend that if at a public meeting an elector shouted out to a candidate, “You are not fit to stand for this electorate; you got your preselection by corruption and branch-stacking”, that that would be an offence and not protected by the constitutional freedom?

MR KEANE: Your Honour, we would submit that that statement is a statement about elections to the Federal Parliament.

KIRBY J: You would say that is heartland stuff?

MR KEANE: Yes.

KIRBY J: It would pass the first test, which you say is easy, and it would also in that particular context pass the second test and you would read down the criminal statute to say it just does not reach so far.

MR KEANE: In that sort of case it is easy to do the reading down.

McHUGH J: Why can somebody not say in a public place, “You are a corrupt policeman”?

MR KEANE: Your Honour, if in a public place he says it to a policeman, then the policeman is being insulted and there has been an offence, in our respectful submission.

GLEESON CJ: You say it is easy to do the reading down in the example that you were just discussing, but suppose in the example that Justice McHugh gave you the elector who makes the statement knows that it is false, how does the reading down apply then?

MR KEANE: So far as this offence provision is concerned, the reading down applies as well. The question would be whether the person who is insulted is also defamed and the person who is defamed by the false statement may have other rights depending on Bass v Roberts.

McHUGH J: Long ago Mill pointed out that even a false statement can contribute to public debate because by bringing it into the arena it is exposed for what it is and makes the truth clearer.

MR KEANE: And no doubt that is why, with the greatest respect, your Honour was correct in Levy, in the passage at 623 that we referred to, to make those points that your Honour made. Whether or not the false statement has consequences is a question for the law of defamation. Whether it has criminal consequences by reason of a measure enacted by the Parliament, depends upon whether the Parliament can say, as it said here, you can make statements if you like about people but do not make them to them in a public place if it is apt to provoke them or intimidate them.

GLEESON CJ: In your submission, does Lange produce the consequence that a statement made by an elector to a candidate for a federal election in a public place in Queensland which says “You are unfit to hold public office” is a statement that does not fall within the prohibition contained in paragraph (d) or does Lange produce the consequence that the prohibition on insulting words contained in paragraph (d) goes entirely?

MR KEANE: Your Honour, our submission is that the law does operate, the law is a valid law – that is our first submission – because the law is reasonably adapted to achieve a legitimate end, that is to say you can discuss a point as opposed to behaving badly and this is a law about disorderly behaviour. If we are wrong in that, then that is because the law cannot be read down to have a valid operation in that context, whereas if it had been about a State election, the law could operate because the qualification that has to be implied to read it down, which is insulting words except words – I am sorry I have got mixed up. To read it down you would have to say that it is inapplicable to insulting words which are words used in communication relating to federal elections or referenda.

GLEESON CJ: That is right, and where does that leave saying in a public place in Queensland to a policeman, “You are a slimy, corrupt so-and-so”?

MR KEANE: In our respectful submission, if one applies that reading-down process, the law applies. Read down the law still applies because that communication has nothing to do with federal elections.

KIRBY J: That is why I still pause over the first criterion.

MR KEANE: I come to it at the end, your Honour - - -

KIRBY J: I do find it difficult to understand, if the criterion is federal elections, as the Solicitor for the Commonwealth says and as some of the dicta say, if that is all it is, I do find it a little difficult to see how a statement about an alleged corruption of a Townsville police officer is relevant to a federal election.

MR KEANE: Your Honour, with respect, we agree with that absolutely. Our approach to it is different, because we are accepting the discipline of the statement of principle in Lange. We come to it at the end, as an exercise in reading down, if necessary, to preserve the validity of the statute.

KIRBY J: Yes, but you have accepted step one. You say it falls on step two, but even if it does not fall on step two, you read it down. But I am still back at step one.

MR KEANE: I appreciate that, your Honour. What we say about that is that we are not making a submission that step one - - -

KIRBY J: But you are willing to let it go, and I can understand why, strategically, you do that - - -

MR KEANE: It is also the fact that there are - - -

KIRBY J: - - - but we ought to be principled.

MR KEANE: Quite.

KIRBY J: In matters of constitutional law, we ought to have a clear principle, as clear as we can make it. I am still struggling with how far the constitutional principle in Lange goes to a State law, concerning State words, in a State context, about a State officer. Now, if there is something in the federal Constitution that extends so far, apart from federal elections, fine, but if it has to be linked to a federal election, it is pretty hard to see how it gets past first base.

MR KEANE: Of course, your Honour can say that. We are in a position where there is an unanimous judgment of this Court six years ago stating the test.

KIRBY J: It was not addressing this particular issue, a State law.

MR KEANE: Well, that is true, but what it does do is make it - - -

KIRBY J: We are addressing it now and we ought to address it in a principled fashion.

MR KEANE: What the Lange test does do is, in our respectful submission, make it clear that it is rooted in the need to identify incompatibility between section 7, 24, 64 and 128 of the Constitution and a law.

To the extent that there are possibly different ways of approaching it other than by per medium of the Lange test, then it is open of course to your Honours to pursue those other ways.

GUMMOW J: The last sentence of the middle paragraph of 561 seems not to be sufficiently appreciated, I think. “Whatever the scope”, that sentence there, last sentence in the middle paragraph of 561. It is not just about election periods – and the reference to Granada too.

McHUGH J: That was my big retreat in Lange. In the earlier cases I confined the implication to election periods and in that last sentence, as Justice Gummow points out, it was made plain that the implication cannot be confined to election periods. One of the reasons was because of the conduct of the executive branch of the - - -

MR KEANE: Quite, your Honour. Certainly it cannot be confined to speech occurring in election periods, but the reason for the implication can find no other basis than those provisions of the Constitution that are identified as the basis for it in the passage that everyone has cited from Lange at page 567:

When a law of a State or federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communications imposed by ss 7, 24, 64 or 128 of the Constitution –

These are the provisions that provide for the freedom.

GLEESON CJ: Just to pursue the point made by Justice Gummow, if you go back to the first complete sentence on page 560 and if you then look at the second sentence in the last paragraph on page 561, that suggests, does it not, that it is not limited to matters about federal elections?

GUMMOW J: Yes, and the first sentence of the next paragraph “In addition . . . ss . . . 62, 64 and 83”.

MR KEANE: But, your Honours, that is because of the first sentence at the top of 561:

If the freedom is to effectively serve the purpose of ss 7 and 24 and related sections, it cannot be confined to the election period. Most of the matters necessary to enable “the people” to make an informed choice will occur during the period between the holding of one, and the calling of the next, election. If the freedom to receive and disseminate information were confined to election periods, the electors would be deprived of the greater part of the information necessary to make an effective choice at the election.

So that these provisions create a freedom that operates beyond the election period, but the purpose of the freedom is to enable the electors to make an informed choice. No doubt it is true that to enable them to do that they have to be free to hear comment and criticism of governments between elections.

GUMMOW J: It is not just that, as we explained in Egan v Willis. One of the ideas of representative government is not that those elected communicate with those who elect them just at election time. Politicians are persistently subjected to agitations and representations by and on behalf of their electors throughout the whole life of Parliament. There is a right to petition, if you want to go back in history. All of that is bound up in this notion of representative and responsible government.

MR KEANE: Quite.

GUMMOW J: They do not just come along once every three years.

MR KEANE: No, your Honour, and we accept that.

GUMMOW J: They are out and about the whole time.

MR KEANE: Quite, and their conduct during that period bears upon the choice that electors will make, so - - -

GUMMOW J: Of course.

MR KEANE: We accept that - - -

CALLINAN J: It is limited to what is necessary - - -

MR KEANE: Quite.

CALLINAN J: - - - not to what may enlarge the discussion or make the discussion more interesting. The express language of the joint judgment at 561 is of limitation.

MR KEANE: Yes, we accept that, with respect, and adopt it. It is the basis on which the Court has affirmed the existence of this limitation on the powers of the Parliaments.

McHUGH J: This is not a case about this person saying something to this police officer. He would not have a constitutional defence if his case was not that he was communicating to other people. He was in the Townsville Mall handing out leaflets. So he was exercising his freedom of political communication and alleging police officers were corrupt.

MR KEANE: And doing it by saying that - - -

McHUGH J: And, incidentally, insults somebody.

MR KEANE: Well, with respect, no, your Honour. With respect, the handing out of the leaflets that said that was the subject of a charge under section 7A. That was the charge that the Court of Appeal held was not a valid law. The conduct in respect of which the conviction was upheld on appeal was 7(1)(d), which is the insulting language he used to the police officer saying, “He is corrupt, Constable so-and-so”. That is the difference, your Honour. It is the difference between - - -

McHUGH J: But when he says here, et cetera, et cetera, he is talking to the bystanders.

MR KEANE: And, your Honour, the question is, is a rule that regulates what you can say by saying you shall not say insulting things to people, is that a rule incompatible with the free debate necessary for free elections?

McHUGH J: Supposing he had said, “You are a corrupt policeman and the only reason you are in office is because this government is corrupt and will not do anything about corrupt police officers”. Now, would that be protected by the Constitution or would it - - -

MR KEANE: No.

McHUGH J: It would not be?

MR KEANE: No, with respect.

McHUGH J: It is a very narrow freedom then.

MR KEANE: Well, just like my freedom to swing my arm, your Honour.

McHUGH J: But the Constitution might give you the freedom to swing your arm.

MR KEANE: The Constitution puts an inhibition on Parliaments. The question is whether the Parliament is inhibited from regulating conduct. The answer to that is, no, it is not. It is not prohibited from regulating conduct which is as apt to be disruptive of political communication as it is to further it.

McHUGH J: Provided it is appropriate and adapted. You have a blanket rule – insulting, that is the end of it. No defences, no qualifications whatever.

MR KEANE: Because, your Honour, of a judgment that is made that it is as apt to enable everybody to have their say by preventing breaches of the peace. That, in our respectful submission, makes it reasonably adapted to achieve the legitimate end which is consistent with free elections. On one view of it, this kind of provision actually assists, because it ensures that people are not driven from the field and it does tend to prevent people from reacting in a physical way, which is not good for free elections.

KIRBY J: This is a pretty fundamental issue of our constitutional theory. The American Constitution, in the words of the Declaration of Independence, or is it the Constitution, talks of “life, liberty and the pursuit of happiness”, whereas ours talks of “peace, order and good government”.

MR KEANE: A more modest ambition, your Honour.

GLEESON CJ: Is that a convenient time?

MR KEANE: It is, your Honour.

GLEESON CJ: We will adjourn until 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

GLEESON CJ: Yes, Mr Solicitor.

MR KEANE: If the Court pleases, unless the Court has anything further for us, those are our submissions.

HAYNE J: Mr Solicitor, can I take up the invitation. There is a great deal of history behind this section. I think at some point we have to be taken to it and we have to be taken to the cases in this Court, elsewhere that have considered this section and analogues. Until we can construe this section, its intersection with constitutional principle is at best uncertain. Brownlie’s Law of public order and national security, a 1981 English text, 2^nd edition, would trace this provision or something like it back only so far as the 1936 Public Order Act of England. If you go back behind that through the Law Commission Report No 123, which I am not making up – that is its number – on criminal law, offences relating to public order, you find that a provision with reference to breach of the peace is to be found in the Metropolitan Police Act 1839.

Such little time as I gave to the matter over the adjournment revealed that it has been considered by this Court, I think, or provisions analogous to it have been considered by this Court, in [1907] HCA 66; 5 CLR 405 and the Imperial Vagrancy Act, again one of the progenitors of this provision. There is a judgment of Acting Chief Justice Cussen in Victoria in Anderson v Kynaston [1924] ArgusLawRp 26; [1924] VLR 214 which generated a degree of controversy recorded in the Australian Law Journal, 14 ALJ 384, an article I think by Mr Hutley, provoking in turn a letter at page 435 of that journal. There is reference in the Full Court of New South Wales in Ex parte Breen [1918] NSWStRp 8; 18 SR (NSW) 1, all of which bears on the proper construction of this provision and the need to give consideration to each of its elements in understanding what is meant, for example, by “insulting”, whether the insult must be directed at someone who is present or not – that is Ex parte Breen – whether insult concerned the role of 30,000 British women behind the firing line in 1917.

The Chief Justice of the Full Court in New South Wales held that the words used, namely that “there were thirty thousand British women behind the firing line doing servile work and acting as concubines to the British officers” were not insulting words because none of the women or officers were present to hear the words. Now, at some point we are going to have to grapple with that and I would be grateful if counsel would give attention (a) to the history of this provision; (b) to what that history teaches, if anything, about its proper construction.

GUMMOW J: Then there is the South African demonstration at Wimbledon of Brutus v Cozens [1972] UKHL 6; [1973] AC 854.

McHUGH J: And could I add, the word “insulting”, I think, is first found in the Vagrancy Act 1824 for the first time in the United Kingdom and there are some important decisions in New Zealand which are relevant on your submissions because they seem to draw a distinction between disorderly behaviour and insulting behaviour, Mr Keane, and I would refer you to Kinney v Police [1971] NZLR 924 and an earlier case, Melser v Police [1967] NZLR 437.

MR KEANE: Thank you, your Honours. Your Honours, would it be convenient if we were to provide your Honours with a note?

GLEESON CJ: Yes, thank you.

MR KEANE: Within 14 days?

GLEESON CJ: If that is suitable. One other question I would have is this: according to the material that Justice Hayne has mentioned, section 7 of the Race Relations Act 1965 (UK) provides that “Any person who in any public place . . . uses threatening, abusive or insulting words” commits an offence. I would be interested to know whether there are any decisions of English courts on the effect of that provision and how it stands up against the European law with which English law may now have to comply.

MR KEANE: If your Honours please.

GLEESON CJ: There is one other question I would like to ask you on a different point, Mr Solicitor. I am still not entirely sure whether, on the case against you, it is said that Lange means that we should read section 7(1)(d) of the Vagrants Gaming and Other Offences Act as though the reference to “insulting words” was simply not there or whether the case against you is that Lange means that we should read the reference to “insulting words” in that provision as qualified in some respect and, if so, in exactly what respect.

MR KEANE: Your Honour, our understanding of our learned friend’s submissions was that the particular vice of the provision is the reference to “insulting words” and the proper approach to severance is to simply remove the words “or insulting”.

GLEESON CJ: Because if there were an alternative argument to the effect that the provision should be read as though there were some qualification involved in the reference to “insulting words”, as, for example, insulting words not relating to government or political matters, that could be of some importance in relation to the argument that you have generously assigned to counsel for the other respondents, because it may be one thing to say a policeman cannot reasonably suspect an offence if there is simply no offence of using “insulting words”, but there might be a slightly different result if the relevant offence is now to be read as using insulting words except words in relation to government or political behaviour.

MR KEANE: Yes, because of the relative ease with which one would expect one would demonstrate a reasonable suspicion of that occurring.

McHUGH J: Mr Solicitor, when you are looking at the third limb in Lange, you might give consideration to the fact that under the Public Order Act 1936 in England, which uses the term “threatening, abusive or insulting words or behaviour”, there is the qualification “with intent to provoke a breach of the peace”.

MR KEANE: Yes. Justice Hayne raised that with us earlier, your Honour.

KIRBY J: That was in the Queensland legislation originally, was it not?

MR KEANE: Yes, it was, and it was removed.

KIRBY J: And then it was slipped out and the appellant makes a point on that.

MR KEANE: They do, and our response to that is to say, that which is apt to provoke is apt to provoke, whether or not it is intended. So the mischief at which it is aimed is still a mischief in respect of which there is a legitimate end, consistent with free - - -

McHUGH J: I understand that, but it may be one thing to penalise insulting words when they are expressed with intent to provoke a breach of the peace and another matter simply to penalise words that have that effect, irrespective of your intention.

MR KEANE: Your Honour, we will look at that in that context.

GLEESON CJ: Thank you, Mr Solicitor.

MR KEANE: May it please the Court.

GLEESON CJ: Yes, Mr Gibson.

MR GIBSON: Thank you, your Honours. Our submissions address the appellant’s contention that if section 7(1)(d) is invalid – and I take your Honour the Chief Justice’s point that there may be some lack of precision in the formulation of that submission – I will come to that in a moment. As we understood it, I must say, on the written submissions, the appellant’s contention is that section 7(1)(d) is invalid in its entirety. Be that as it may, the contention is that if it be invalid, then any arrest for an offence constituted by a breach of that provision is necessarily unlawful.

We take issue with that submission and in essence it is our submission that the lawfulness of the arrest depends on the satisfaction of the requirements of section 35 of the Police Powers and Responsibilities Act 1997, to which I shall in the future refer as the Police Powers Act. Those requirements were found, as a matter of fact, to have been satisfied and, in our submission, in consequence, the lawfulness of the arrests follows, as does the correctness of the convictions for the offences of the serious assaults of the police and obstructing the police in the execution of their duty.

Could I turn immediately then to the wording of section 35. Your Honours may have it in different places, but it is in the bundle that our learned friend, Mr Lowe, handed up at the commencement this morning, on the last page.

KIRBY J: You are dealing with the third or fourth issue. You are only going to deal with that last - - -

MR GIBSON: Indeed, your Honour, yes. That is the submissions which we make assume the invalidity of section 7(1)(d).

KIRBY J: Would you just remind me, it is not strictly relevant because of the fact that we are looking at the 1997 Act, but what change did the 2000 Act introduce into this section?

MR GIBSON: The 2000 Act effected an amendment in that section 35 was renumbered as section 198, but there was no material change in the wording of that provision.

KIRBY J: Well, that does not matter.

MR GIBSON: For completeness might I point out that section 198, for what it may be worth – in fact, I do not think it is worth anything – is in the appellant’s primary submissions as part of the attachment to that and the amendment also – I think, with respect, that is the only point. The amendments that are referred to in this hand up this morning - - -

KIRBY J: I was only asking because Justice Gaudron was putting her point about offending and offence and then it was pointed out that she was working from the 2000 statute and the counsel then did not have the 1997 Act, but there is no point of difference in that respect.

MR GIBSON: No, and, in fact, I, as the transcript of the special leave application will show, pointed out to her Honour that section 198 was the same as section 35 and that it was found in the special leave application book. So the discussion then, as I recall it, your Honour, proceeded on that footing. But to return to the point here, in our submission, the language of section 35(1) is to be accorded its ordinary meaning and the opening words of the provision establishes or provides that:

It is lawful for a police officer, without warrant, to arrest a person –

and the critical words are –

the police officer reasonably suspects has committed or is committing an offence –

and then it goes on to provide –

if it is reasonably necessary for 1 or more of the following reasons –

(a) to prevent the continuation or repetition of an offence or the commission of another offence;

Now, the fundamental requirement which must be satisfied insofar as it is relevant to the facts and issues in this case is whether the police officer held the reasonable suspicion.

GLEESON CJ: But that must be a suspicion about a matter of fact, must it not? Whether or not somebody has committed an offence might turn on an issue of fact or it might turn on an issue of law. You can have a reasonable suspicion about a matter of fact, but you cannot have a reasonable suspicion about a proposition of law, can you?

MR GIBSON: In our submission, one can. Just as the civil law recognises a mistake of fact and a mistake of law, so too in this context here there is no reason for reading down, we would submit, the language of that part of the section to which we would refer.

GUMMOW J: But.....because it substitutes the opinion of a police officer for the prescription of the statute.

MR GIBSON: To that extent, your Honour, what it does is to preserve, as it were, the police officer’s authority to effect an arrest.

GUMMOW J: Exactly.

MR GIBSON: It does not expose the citizen, the person arrested, to criminal liability for the offence for which he or she is arrested. That is a matter for determination in the courts. The correctness or otherwise – or perhaps I should put it this way - - -

GUMMOW J: It obliges the citizen to submit.

MR GIBSON: It does, indeed. To that extent, with respect, it serves a worthwhile purpose because it removes, or, rather, restricts, the range or the field for which there might otherwise be legitimate argument between citizen and police officer as to the police officer’s powers of arrest. This provision is not confined, either expressly, or, in our submission, by implication, to - - -

GUMMOW J: That is your construction.

MR GIBSON: It is, indeed, of course. It is our submission - - -

GUMMOW J: All right. Just a minute. If that is your construction, you seem to be putting yourself into a constitutional problem.

MR GIBSON: I would certainly hope not, your Honour. It is our submission that the wording of this provision involves or imposes no constraint of the sort to which reference has just been made. That is the basis upon which the officer reasonably suspects that an offence has been or is being committed may be an apprehension or a misapprehension of fact or of law. The relevant finding - - -

GUMMOW J: What is it that governs the reasonableness of the suspicion? Is it a matter of law? And, in particular, as to the application of the Constitution.

MR GIBSON: The matters that will govern the reasonableness will be the underlying substratum of fact or facts upon which the inference of reasonableness is based.

McHUGH J: It is one thing for a constable to take an erroneous view of the law and take the view that a set of facts are within the law, even though on the correct construction of the law those facts are not within it. That is a very common situation in which defences relying on statutory exemptions have been upheld. It is another matter altogether to say that a constable’s view that the facts come within a non-existent law give him or her the same protection.

MR GIBSON: Your Honour is quite right. It is another matter but, in our submission, the limitation which the legislature has seen fit to impose is that of reasonableness. If the police officer in question holds a misapprehension, be it as to fact or law, and that is found to be unreasonable, then the protection afforded by section 35 disappears.

McHUGH J: Yes, but you are ignoring the Constitution in the background. In your argument the State of South Australia or the Commonwealth would have been saved from an action by Mr James if they had had a section which said that you cannot bring an action against a Commonwealth or State officer for seizing fruit that they wrongly believed was the subject of a marketing scheme.

GUMMOW J: Nor would the tobacco company have been able to recover its excise, the case we had a few weeks ago.

MR GIBSON: I am unaware of that. Your Honours, the important distinction is between on the one hand the exposure to criminal liability of the citizen for the offence for which he or she is arrested, which is not that with which we are presently concerned, but whether a citizen who assaults a police officer acting under the authority of section 35 and in circumstances in which it is found that he holds a reasonable suspicion that what I might term the primary offence has been committed, whether that citizen is entitled to assault the police officer with impunity.

McHUGH J: It depends whether the police officer has assaulted the citizen in the first place. The constitutional freedom is not worth much if it protects your freedom of speech but it does not protect you against a constable who erroneously arrests you because you were exercising your freedom of speech.

MR GIBSON: I understand your Honour’s point. In our submission, they are two separate issues and the one should be distinguished from the other.

GLEESON CJ: Mr Gibson, just before you go further, there is one matter I should ask you to clear up. There were a number of charges laid against the present appellant and those that were based on section 7A we can forget about; there is no appeal against the decision of the Court of Appeal.

MR GIBSON: No.

GLEESON CJ: But in relation to the remaining charges, at some time convenient to yourself could you just identify for us what the alternative possibilities are in terms of the outcome of this appeal in relation to particular charges, depending on which arguments we accept or reject.

MR GIBSON: Perhaps I should address that immediately.

GLEESON CJ: The appellant was actually convicted of biting the policeman, was he not, at one stage?

MR GIBSON: That was the evidence upon which the offence of assault was established. There was an attempted biting, kicking, struggling and the like and these instances were the subject of the separate offences charged which can be summarised in this way. There was one charge of insulting words, which is in the appeal record at page 1. That is under section 7(1)(d).

The remaining charges insofar as they are relevant consisted of two offences of obstructing police, and the charge sheets are to be found in appeal records pages 3 and 9, a separate charge in respect of each of the two police officers involved, and there were two charges of assaulting police, which are to be found at appeal record 5 and 7. In terms of the brief discussion of the circumstances in the evidence, it is sufficient, I think for present purposes, to draw the Court’s attention to appeal record page 13 in the passage which commences at about line 20 through to 45 and at page 14, line 45 over to page 15, which consists of only 15 lines, page 16 commencing at about line 15 for most of the balance of the page and then page 17, lines 1 to 5.

GLEESON CJ: Well, you are setting up to persuade us that there was nothing unlawful being done by the police. That has nothing to do with the first offence against section 7(1)(d). Do the other four offences, that is, the two offences of obstructing police and the two offences of assaulting police, stand or fall according to whether the conduct of the police was lawful?

MR GIBSON: The answer to that, your Honour, must be yes, because the assault was - - -

GLEESON CJ: You can bite a policeman, can you?

MR GIBSON: Well, you see, the police officer effected an arrest. He was acting in the belief that an offence had been committed under section 7A and also section 7(1)(d).

GLEESON CJ: But did he come to get bitten because that was a response to his attempted arrest?

MR GIBSON: Yes. This melee that followed was a consequence of the police officer intervening in the appellant’s conduct, with the distribution of the placard and the like or the leaflets, and the appellant seeking to resist being placed in a police vehicle, the purpose of him being placed there was to take him into custody following the arrest.

GLEESON CJ: Thank you.

MR GIBSON: As I have indicated, the wording of section 35, in our respectful submission, disposes of the point. In the appellant’s reply submissions reference has been made to section 38 of the Vagrants Gaming and Other Offences Act. I would like to make two points about that. The first point, the primary point, is that it is section 35 of the Police Powers Act, not section 38 of the Vagrants Gaming Act, which applies. That is apparent, we would submit, from the wording of sections 8 and 9 of the schedule to the Police Powers Act. Those sections are to be found in the second last sheet which was handed up this morning. They operate in this way. Section 8 provides to the effect that the Police Powers Act:

does not affect the powers or responsibilities a police officer has under an Act included in schedule 1.

The Vagrants Gaming and Other Offences Act is not listed in schedule 1. Section 9 of the Police Powers Act provides to the effect that:

Section 9 of the Police Powers Act provides to the effect that:

This sections applies to a provision of another Act that confers a power or imposes a responsibility on a police officer.

(2) To the extent of any inconsistency, this Act prevails over the provision, whether enacted before or after this Act –

In consequence it is to section 35 to which regard should be had, not to section 38. But even if we be wrong in that, can I put this on an alternative basis, that as appears from the first sheet of the hand-up this morning, although section 38 in terms refers to “any person found offending against any of the following provisions”, it goes on in terms to provide “any person who is suspected, on reasonable grounds, of having offended” and then section 546 of the Criminal Code, by subparagraph (a) uses language which is materially, at least, to the same effect as is the language of section 35 of the Police Powers Act.

GLEESON CJ: Hang on, my copy of this legislation talks about a person “suspected . . . of having offended against any provision of section 4B or 29”.

MR GIBSON: Yes, your Honour is quite right, but there is no such limitation in the wording of section 546. Subparagraph (a) is in materially identical terms to section 35 of the Police Powers Act and it was to those two provisions, that is section 38 and section 546, to which the Full Court of the Supreme Court of Queensland referred in the case of Veivers, to which reference was made this morning.

GLEESON CJ: Yes, you have a problem with section 546, have you not, because the precondition to which its operation is that you have an offence which “is such that the offender may be arrested without warrant”? Now, if paragraph (d) just goes out of section 7(1), you cannot characterise it as an offence such that the offender may be arrested without warrant.

MR GIBSON: That is quite right, your Honour, but nevertheless, in our submission, when one has regard to the purpose of this provision, section 546, of course an approach to construction which is enshrined in the legislation in Queensland, that is in section 14A of the Acts Interpretation Act, in our submission, an interpretation of section 546 which accords with its evident purpose has the consequence that 546 in terms also applies and that the opening words “When an offence is such” must be read in the context of subparagraph (a) and having regard to the considerations to which we earlier referred. But having said that, the correct answer to this whole issue is that section 35 is the applicable provision.

Now, in Veivers it is correct to say that the case was not one which concerned the validity or otherwise, or the existence or otherwise of an offence, but Veivers is a decision of the Full Court which recognises that, for the purpose of the application of the reasonable-suspicion test, if I can use that term, in that case under section 546(a) it was not necessary that the misapprehension in question be one of fact. The court concluded that a misapprehension of law could ground the reasonable suspicion to which the provision refers. That appears sufficiently from page 228G, at the foot of the page, the last paragraph in the judgment of Justice D.M. Campbell, and also in the judgment of Justice W.B. Campbell at page 229, particularly adjacent to D.

Your Honour Justice McHugh in the course of the submissions this morning referred to two cases, one of Hazelton and one of Duncan v Theodore. Could we just refer to those – we understand that your Honours have copies of those – Hazelton v Potter [1907] HCA 63; (1907) 5 CLR 445. It is our submission, in substance, that these two cases are distinguishable as being quite different in relation to the provisions under consideration to those of section 35 in this case.

Hazelton concerned a warrant for the arrest of a person who had been convicted of an offence in the Pacific Islands. There was an Order in Council which permitted a warrant to lie upon the conviction of a person for an offence, the warrant to transport that person to another destination in the South Pacific. In this particular case, the appellant was convicted of an offence in the Solomon Islands and he was sentenced to a term of imprisonment in Fiji. He was, however, conveyed by ship to Sydney, not to Fiji, and he was taken into custody in Sydney by a police officer purporting to exercise the power under a warrant under this provision. In the headnote, the point is noted at page 446, the third paragraph, which I will not read aloud. The warrant being legally - - -

McHUGH J: Is not the principle of the case stated in the Chief Justice’s judgment at page 460?

MR GIBSON: It is, your Honour. We will come to that, but before we proceed to that, if I may, the point with which we are now concerned is noted in the headnote, two further paragraphs down, where reference is made to Article 139, which for present purposes it is sufficient to summarise that it provided to the effect that any legal proceeding:

shall not be commenced “in any of Her Majesty’s Courts” for anything done or omitted in pursuance of execution or intended execution of the Order in Council –

It was held that the defendant was not entitled to the benefit of that provision. Your Honour Justice McHugh is quite right that at page 460, in the judgment of the Chief Justice, reference is made to an earlier case, in the first paragraph, from which his Honour concludes, in the second paragraph, that there being:

no law in force in New South Wales which authorized the High Commissioner’s Court to address a warrant to a keeper of a prison in that State or which authorized a keeper of a prison to detain, of his own authority, a person in course of removal to Suva. The mistake of the respondent was neither as to a matter of fact nor as to the construction of a law of New South Wales, but as to the existence of such a law.

GLEESON CJ: There is an interesting distinction. He draws a distinction between a mistake in the construction of a statute and a mistake as to whether there is a particular law.

MR GIBSON: Indeed, that is true.

GLEESON CJ: In its application to section 7(1)(d), does Lange produce a consequence that falls within the first of those two alternatives or the second? You see, we only get to this argument of yours upon the hypothesis that Lange has had some work to do in relation to section 7(1)(d). What is the work it has to do within the distinction drawn by Chief Justice Griffith?

MR GIBSON: The submission made against us is that section 7(1)(d) fails the second test in Lange because it is not appropriate or adapted as that phrase appears in the judgment in Lange.

GLEESON CJ: Let that be assumed. We only get to this argument of yours on the assumption that that is correct.

MR GIBSON: Indeed.

GLEESON CJ: What kind of a mistake then has the policeman made? Has he made a mistake about the construction of a statute or has he made the mistake about the existence of the law?

MR GIBSON: We would submit that he has made a mistake as to the construction of a statute rather than as to the existence of the law, though it has to be acknowledged that if the effect of invalidity is that section 7(1)(d) is invalid in its totality rather than, for example, that only so much of section 7(1)(d) relates to insulting conduct, then the section is not totally invalid.

GLEESON CJ: There are at least three possibilities. One is that the section is totally invalid. The second is that the section is invalid to the extent to which it refers to “insulting words”. The third is that the section is invalid to the extent to which it applies to insulting words relating to political or governmental communications. What is the nature of the policeman’s assumed mistake?

MR GIBSON: We would submit, as indeed the identification of the three categories tends to points out, that it is a mistake as to the construction of the statute and in consequence as to the application or the reach of the statute. In our submission, however, the more fundamental point in terms of Hazelton’s Case is that the protective provision, for want of a better term, that afforded by Article 139, was plainly materially different in its terms to the wording of section 35 of the Police Powers Act. The wording of Article 139 practically compelled the conclusion that if there was no provision in existence, then the officer could not have been doing anything in pursuance or execution of that provision. One is presented with the logical dilemma as to how can one be acting in pursuance or execution of a provision which has no legal existence?

To similar effect, in our submission, is the judgment in the second case to which your Honour Justice McHugh referred, which was Duncan v Theodore [1917] HCA 38; (1917) 23 CLR 510. This particular case concerned conduct engaged in by officers - - -

GUMMOW J: Did that case go to the Privy Council?

McHUGH J: It did go to the Privy Council, but I cannot remember whether it was on this point or not. It certainly went to a Privy Council.

MR GIBSON: I am sorry, I cannot - - -

GUMMOW J: [1919] UKPCHCA 3; 26 CLR 276.

McHUGH J: Lord Birkenhead gave the judgment, I think, if I remember rightly.

MR GIBSON: Thank you, your Honour. Well, I am unaware of that, so I must confine my comments to the report in the High Court. The case arose out of conduct engaged in pursuant to a proclamation made under some sugar acquisition legislation. The proclamation was found to be invalid - - -

HAYNE J: And it was on that point that the Privy Council reversed it.

MR GIBSON: In which event the relevant issue in the High Court did not fall for consideration.

HAYNE J: Just so.

MR GIBSON: Thank you, your Honour. Relevantly for present purposes the headnote at page 511 at about point 6 of the page refers to section 7 which was the protective provision. It was in terms that:

No action . . . shall lie . . . against His Majesty or the Treasurer, or any officer or person acting in the execution of the Proclamation hereby ratified –

et cetera. Consistently with Hazelton and, indeed, with reference to the judgment in Hazelton, their Honours in the Court concluded that section 7 afforded no protection for conduct engaged in, in what could be described as the purported execution of the proclamation. That appears at page 527 in the judgment of Justice Barton, about three-quarters of the way down the page reference is made to Hazelton v Potter and the relevant conclusion reached at page 528. To similar effect was the joint judgment of Justices Isaacs and Powers at page 537.

So we refer to those cases because, of course, they were adverted to this morning but, in our submission, also because of the assistance we submit they provide in emphasising that the reach of protective provisions, of whatever sort, must depend upon the language used.

The final case to which I might make brief reference is a recent judgment of the New South Wales Court of Appeal. Again, we understand that your Honours have copies of the judgment in Ruddock v Taylor [2003] NSWCA 262; the judgment is yet unreported. Briefly, the circumstances of this case were as follows. It arose out of the provisions of Commonwealth migration legislation - - -

GUMMOW J: It is sequels to matters we have in this Court.

MR GIBSON: That is true, your Honour. In Ruddock the Minister exercised a power to declare the respondent a non-citizen under the Act. A power of detention is conferred on officers if they reasonably consider a person to be a non-citizen. The respondent’s status, that is that he was not a non-citizen under the Act, was determined by a court order. The respondent, it appeared, acted in ignorance of that court order and the appellant was detained. The decision to detain was based on a misapprehension as to the validity of the Minister’s declaration of the appellant as a non-citizen.

Although not critical to the judgment, that is to the decision reached, his Honour Justice Meagher referred to the proper interpretation and application of the words “reasonably suspects” where they appear in the legislation. This discussion commences at paragraph 75 of the reasons, which may appear in your Honours’ copies at page 17. His Honour, with whom Justice Ipp agreed, noted that a mistake of fact could be the cause of an officer reasonably suspecting something. Reference was then made to the judgment of Justice Dixon in a further case Little v Commonwealth – this is at paragraph 76. His Honour then carries on at paragraph 77 referring to both Veivers v Roberts and another decision of this Court in Webster v Lampard, his Honour noting that in Webster:

the majority of the High Court regarded it as settled law that such protective provisions covered mistakes of law as well as mistakes of fact.

His Honour took that to be consistent with the judgment in Veivers. Reference was made to a Court of Appeal judgment.

To address the issues in stages, the following conclusions emerge. Firstly, a reasonable suspicion need not be grounded on a misapprehension of fact. It is sufficient if it is grounded on a mistake of law. In our submission, the language of section 35 is appropriate to accommodate a mistake which goes so far as to the validity, or indeed the existence, of the provision the contravention of which is the cause of the arrest.

Could I briefly address some submissions of the appellant. We have referred to these in our written submissions, particularly at paragraph 19 onwards. The first point is the appellant’s reliance on the case of Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143. That appears from the appellant’s submissions at paragraphs 11.3 and 11.4 and particularly the reliance the appellant places on the statement of Lord Irvine, Lord Chancellor, at page 160B, where his Lordship commented:

If subordinate legislation is ultra vires on any basis, it is unlawful and of no effect in law. It follows that no citizen should be convicted and punished on the basis of it.

Our learned friends use that sentence, particularly the concluding words, as the platform for the submission that there can be no convictions as in this case for quite separate offences, in this case assault and obstructing police, the submission being that in the circumstances of this case those offences have as their basis the invalid section 7(1)(d).

In our submission that is simply not, firstly, a fair application of his Lordship’s observations. As we point out in our written submissions, the fact situation there under consideration bears no comparison whatsoever to the fact situation under consideration here. The issue raised in this case was not raised in that case and, with respect, the appellant’s submission
takes those words out of context and seeks to apply them to a context which was not in the contemplation of his Lordship.

The second submission we should briefly advert to is the appellant’s submission at paragraph 12.2 of the written submission, which, in turn, is based on observations of Justice Brennan, whilst in the Federal Court, in Webster and Daff v McIntosh. In that case his Honour said at page 458 that:

There is a legal immunity from arrest and from the threat of arrest unless and until the conditions governing the exercise of the arresting power are fulfilled. The extent of this immunity, no less than the extent of the power of arrest, is fixed by the laws prescribing these conditions;

that is, the conditions governing the exercise of the arresting power. The submission, with respect, takes the appellant’s case no further at all, for the reasons we have given. The condition in question or the laws prescribing the conditions in this case are to be found in the wording of section 35. Of course, if your Honours are against us on the interpretation for which we contend, that is the end of the matter, but if your Honours are for us, there is nothing in Webster to indicate to the contrary.

The appellant then concludes in its submissions at paragraph 12.6 that the operation of section 35 is contingent on the commission of an offence. That was the basis of the submission made this morning to the effect that if there is no offence, there can be no reasonable suspicion. For the reasons we have given, in our respectful submission, that conclusion does not follow and, notwithstanding all that has been said about this, admittedly as much, if not more, by me than anyone else so far, the issue resolves itself into a question of the interpretation of the wording of section 35 and, in our submission, it is, on reflection, an uncontroversial conclusion for which we contend.

There is only one final matter that I would wish to draw to the Court’s attention, that is we have noticed an error in our written outline. At paragraph 11 we had sought to extract part of section 35. We note that the first word in the second line of 35(1), as it appears here, is “adult”, that is a mistake; correctly, it should be “person”. It is correct in the bundle that was provided this morning. Unless there are any other matters, your Honours, those are our submissions on that issue.

GLEESON CJ: Thank you, Mr Gibson. Yes, Mr Solicitor for New South Wales.

MR SEXTON: If the Court pleases, subject to two short matters, we are content to rely on our written submissions. The first of those two matters is the question of margin of appreciation, to which there was some reference earlier today. In the context of the Australian Constitution, it was our proposition, in our written submissions, that this means no more than that when a court is considering whether a law is reasonably appropriate and adapted to achieving a legitimate object – to use the words used by this Court in Lange – the law need not be the sole or the best means of achieving that end, but perhaps may be one of a number of ways, particularly when it comes to balancing competing interests. A court might think that other means were better, but that the particular means that were used by the legislature were at least adequate. So that, rather than suggesting the importation of some European doctrine into the interpretation of the Australian Constitution, that was the context in which our written submissions were addressing that issue.

The second matter, your Honours, really arises out of a question that has been raised on a number of occasions today by the Chief Justice, which is, what is the result if the Court were to conclude that some, perhaps most, insulting words could be prohibited without a contravention of the principle put forward in Lange, but that this provision was, however, too broad in that it was capable of burdening the freedom of communication by its impact on some insulting words that could constitute political discussion?

This is a question that is really left unanswered by the decision in Lange, but on the assumption that the Court came to that conclusion, in our submission, the result would be – perhaps I should say, in this case, that there has been a concession that the language used constituted political discussion. It is not a concession, in our submission, that necessarily had to be made, but - - -

KIRBY J: Is it persisted with in this Court? There was something in the appellant’s submissions that rather suggested it may not be. I am now in a state of confusion.

MR SEXTON: We assumed that it was still made, your Honour. We would say, for our part, that there was not political discussion here, but we have operated on the basis that that concession still operates.

GLEESON CJ: That is a little difficult to reconcile with the Solicitor-General for Queensland’s insistence that the kind of political communication governed by Lange relates to the conduct of federal elections. It is difficult to see that what was said here had anything to do with federal elections.

KIRBY J: I think he went on to say that it fell into that basket because of the wide view that had been taken by the Court of the interrelationship of the discussion of issues of federal and State concern, and that corruption, at least arguably, is a matter of general political concern and not just limited to one particular part of the Commonwealth.

MR SEXTON: We would concede, your Honour, that there could be a sufficient connection between a discussion of a State issue, if I can term it that, with questions of federal - - -

KIRBY J: It came up a little bit in Lenah Game Meats, did it not, as to whether animal welfare was a matter of State as well as federal concern?

MR SEXTON: We would not concede that it was so in Lenah, your Honour, but there could be cases of where that interrelationship was sufficient, but we would not say that it was so here.

GLEESON CJ: Well, if you look at the charge on page 1, what was said was:

“This is Const Brenden Power a corrupt police officer” –

and that was said to Constable Brendan Power. It does not contain any suggestion that his corruption is being covered up by others or that there ought to be an inquiry into it or that there ought to be a law against it. It is just a statement, on its face, about Constable Brendan Power personally. He might be a corrupt police officer whose corruption was totally unknown to his superiors or to anybody else in the police force consistently with that statement.

MR SEXTON: Your Honour, that is why we say that, in the absence of what we assume to be the concession that constituted political discussion, we would have thought the approach to this case would have been that he would have had no defence to the charge.

GLEESON CJ: Suppose he said, “This is Constable Brendan Power, a police officer who assaults prisoners”. What would not be political discussion?

KIRBY J: That is a point Justice Thomas made, I think.

MR SEXTON: To turn it round, your Honour, we would say that in fact the boundaries are reasonably closely confined because of the way in which it was put in Lange.

GLEESON CJ: How, in your submission, would Lange be applied to the prohibition against obscene language?

MR SEXTON: In the same way as here, your Honour, that if one struck, one would think, a reasonably rare case where something that was obscene was also constituted political discussion, then there would be a defence to the charge, but absent that situation, then there would be no defence and that the law would not be generally invalid but it would, in the instances where there was a coincidence between obscenity and political discussion, simply be read down in accordance with the requirements of the Constitution.

KIRBY J: By the way, in the light of that last discussion – and I perhaps should have asked Mr Gibson this – in the Court of Appeal reasons they refer to the constable, the subject of the pamphlet, as “Constable P”. Now, having regard to the names of the parties, I do not know whether there is any point in that. We have not been asked to do anything about that. For my own part, I have some sympathy for repeating the allegation against the constable which has not been proved, but do you know, are we supposed to refer to him as “Constable P” or - - -

MR SEXTON: I do not know, your Honour.

KIRBY J: It is not your concern, it is really Mr Gibson’s. Maybe he can tell us at the end of the case whether - - -

GLEESON CJ: He is Mr Gibson’s client and it was Mr Gibson who referred us to appeal book page 1.

KIRBY J: But they did take that course and it was not just the President. It was, I think, all judges of the Court of Appeal. Anyway, I meant to ask Mr Gibson that before he sat down. You do not know anything about this. You are not concerned about it.

MR SEXTON: No.

GLEESON CJ: So your submission is that in its application to section 7(1)(d), Lange does not produce the result that you read the Act as though paragraph (d) was not there; Lange produces the result that you read the Act as though paragraph (d) did not apply to the use of insulting words in political communication?

MR SEXTON: Yes, that is so, your Honour.

GLEESON CJ: Whatever exactly that expression might mean.

MR SEXTON: Yes. That of course then becomes a matter for drawing of lines, and of course it may pose some practical problems, particularly for police officers.

GLEESON CJ: It may also have some significance for the argument put by Mr Gibson about reasonable suspicion.

MR SEXTON: Yes, it does.

GLEESON CJ: Especially if the distinction drawn by Chief Justice Griffith, in the case he referred us to, is significant.

MR SEXTON: The alternative, your Honour, seems to us to be – and the obscenity example is one good example. Imagine, for example, a law about film censorship based principally on obscenity. There may be, for example, films which are making some kind of political statement which could fall within both categories – perhaps not very many. But we would say that the result would not be that the law would be generally invalid.

GLEESON CJ: It is not hard to imagine. All you have to do is add a couple of adjectives in front of the words “corrupt police officer” and you have obscenity as well as insult.

MR SEXTON: Yes, or you might be able to hit the three categories. Your Honours, just one final matter. When I say about the drawing of lines, that is because we say the way in which the principle in Lange would be initially confined in its application would be by the limits of political and governmental discussion, about which there can be and no doubt will be some debate and disagreement at later stages in this Court, but that is not seemingly raised in this particular case because of the concession that apparently has been made. But we make that general submission about the way in which the principle would operate in this case, as in others. Unless there are any other matters, your Honours, those are what we would add to our submissions.

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

MR KEANE: Your Honour, by reason of the two matters that have been raised, I thought before our learned friends go on we should make our position clear. As to the references to “Constable P”, there is no legislative requirement that that occur. It was a course that the court took of its own motion, perhaps for reasons of the kind your Honour Justice Kirby suggested, but there is no legislative requirement for anonymity in this context.

As to the question of concession, the concession that we made in the Court of Appeal is recorded in paragraph [6] of the President’s judgment at page 161. Those are the concessions that were made and we do not withdraw them.

KIRBY J: You do not resile from them?

MR KEANE: No, but as to them we say “So what?” in the politest possible way.

GLEESON CJ: Thank you. Yes, Mr Solicitor for South Australia.

MR KOURAKIS: Your Honours, I address first the question of just what communications do fall within the first limb of Lange as to matters which cannot be unduly burdened. In my submission, it can be accepted that the implied freedom protects communications on federal government and political matters from legislation by the State or Commonwealth which is unduly burdensome. In my submission, the implied freedom from either Commonwealth or State legislation does not extend to communications on government and political matters which relate to State issues only and have now no real connection to any Commonwealth matter. That may, and perhaps often will, give rise to difficult factual questions but if it is accepted that the - - -

GUMMOW J: You are seeking to cut across the concession made by the party. How can you do that?

MR KOURAKIS: In my submission, it does not - - -

GUMMOW J: You are just here as an intervener.

MR KOURAKIS: Yes.

GUMMOW J: Mr Keane is a party.

MR KOURAKIS: The concession in paragraph [6] is simply to the effect that this - - -

GUMMOW J: It affects the liberty of the subject.

MR KOURAKIS: Yes, but, your Honour, as I understand the concession recorded in paragraph [6], this was a government and political communication. It says nothing about whether it was State or federal and it makes no concession - - -

GUMMOW J: I know that, but do you or do you not accept what Mr Keane puts? You want to put the case on another basis. That is what interveners do not normally turn up to do.

MR KOURAKIS: I accept that, your Honour, but I do not understand that I am putting it on any different basis. I do not understand - - -

GUMMOW J: You are trying to create a matter with new parameters, which is not ordinarily the role of interveners.

MR KOURAKIS: Your Honours, it is the case that the question of limiting section 7(1)(d) and “insulting words” in that section to communications other than those which are on a political or government matter - - -

GUMMOW J: Do you or do you not put a case differently to that which is involved in accepting the concession that Mr Keane just read out to us?

MR KOURAKIS: Your Honour, I am not putting a case that is different. Can I just take your Honours to the decision of this Court in Levy [1997] HCA 31; (1997) 189 CLR 579 and, in particular, to his Honour the then Chief Justice Brennan and your Honour Justice McHugh, where the question of whether the implied freedom extends to protecting communications on State matters. Can I take your Honours firstly into the reasons of Chief Justice Brennan at 595. Your Honours will see at the foot of the page the heading - - -

GLEESON CJ: I am sorry, what page is that?

MR KOURAKIS: Page 595.

GLEESON CJ: Thank you.

MR KOURAKIS: Your Honours will see at the foot of that page the heading “The discussion of State issues of government and politics” and his Honour the Chief Justice observes that he was in a minority in Stephens as to the extent of the privilege in a defamation case and whether it extended to State matters, but then goes on to consider and refer to the judgment of the Court in Lange.

In the paragraph which continues on the first half of page 596 his Honour leaves open the question of whether the implied freedom extends to communications which are about purely State matters and, in my submission, draws a distinction between the extended common law defence in Lange, which might well not draw the distinction, and the constitutional implication and how it might invalidate some legislation and not others. That is, there might well be a distinction between the way the common law defence develops, conformably with the Constitution, and the strict limitations on the necessary implication from the Constitution.

Your Honours, can I then go to page 623, in the reasons of your Honour Justice McHugh. In the last paragraph, second sentence, your Honour records:

In appropriate situations, the implication will invalidate laws that effectively burden communications by denying the members of the Australian community the opportunity to communicate with each other on political and government matters relating to the Commonwealth.

And at page 626, your Honour, in the second paragraph, the last half of the page, considers what connection there may have been, if any, between the State regulation under consideration there and a Commonwealth matter.

GLEESON CJ: How do you draw a distinction between a political communication about a Commonwealth matter and a political communication about a State matter where somebody is calling an individual policeman corrupt?

MR KOURAKIS: In my submission, that, with respect, is a relatively easy case which goes to a purely State matter. Indeed, it hardly touches on representative government. It relates more to a question of responsible government and in that sense relates to the responsibility of the police officer as a State police officer and his accountability - - -

GUMMOW J: How does that fit in with the National Crime Authority legislation?

MR KOURAKIS: Sorry, your Honour.

GUMMOW J: There has been National Crime Authority legislation for some time now involving considerable amount of co-operation in very sensitive matters between federal and State police.

MR KOURAKIS: Yes, and if your Honour pleases, that is an - - -

GUMMOW J: It is heartening to think this is one aspect of co-operative federalism which works.

MR KOURAKIS: Yes, and it may certainly be if the allegation of corruption had some connection with those co-operative arrangements.

GUMMOW J: Do they not share information databanks?

MR KOURAKIS: They may well, but, if your Honour pleases, in my submission, those sorts of connections – and I accept they can be made – are nonetheless too remote. If one wants to reduce it to ultimately the question of what might be the subject matter of a referendum, then the range of matters which are Commonwealth political matters is possibly endless, but, in my submission, given the source of the implication, one has to search - - -

GUMMOW J: Well, the operation of the National Crime Authority in operating a federal system which embraces within it the activities of corrupt State policemen might be something very much of federal concern.

MR KOURAKIS: If your Honour pleases, in some circumstances it might be but - - -

GUMMOW J: And we are living in a real world. These things have happened.

MR KOURAKIS: Your Honour, I have come in on this question a little early. In a sense it does not immediately arise in the first limb of Lange in that plainly, on its face, section 7 applies to all communications in any event whether they are on State or Commonwealth matters. In the end, though, this question may become important in terms of the reading down of the words in section 7 and it may be, if one accepts - - -

GUMMOW J: Have there not been references of State power to the Commonwealth supporting security legislation?

MR KOURAKIS: Yes, there have.

GLEESON CJ: What is your submission about the operation of Lange in relation to the completely general words? Is it as Justice McMurdo held in the Queensland Court of Appeal that 7(1)(d) is entirely invalid?

MR KOURAKIS: In my submission, not. In my submission, the word “words” can be read down to exclude communications on political and government matters. It might be read down to that extent. It might be more limited and read down to communications on Federal Government and political matters, and that is the debate that I have just had in terms of the drawing of connections.

GLEESON CJ: What, in your submission, does Lange have to say about the provision in the preceding paragraph against “obscene language”?

MR KOURAKIS: There is, firstly, a different question as to whether it is reasonably appropriate and adapted and it might be more easy to justify such a prohibition against obscene language than one against insulting language. It has that effect, but assuming it is held that even that provision is not reasonably appropriate and adapted, then again it can be read down in a way which excludes obscene language, which is nonetheless a communication on a political and government matter. If your Honour pleases, in my submission, if that is the appropriate reading down of the provision, then it is that the police officer’s mistake – and go to that issue which has arisen also – is simply a mistake about whether or not certain facts fall within the provision as properly construed.

GLEESON CJ: Do you read down - it is the word “words” that you read down, is it?

MR KOURAKIS: Yes.

GLEESON CJ: All right, then in section 7(1)(d), does Lange have the same application in relation to threatening words as it does to insulting words?

MR KOURAKIS: Your Honour, it might not.

GLEESON CJ: Well, how can you read down the word “words”, because it is the same word that applies to “threatening” and “insulting”?

MR KOURAKIS: Yes. Your Honour, one would have to read this section, and what is read into it, distributively, in that sense, which is no more than that which section 9 of the Queensland Acts Interpretation Act allows, and in fact requires, and that, your Honours, can conveniently be found at page 180 of the appeal book in paragraph [73] of the judgment and, in my submission, section 9(1) allows for a distributive reading down in the way which I will contend, even if Lange would have a different result as to “threatening” than it would as to “insulting”.

Your Honours, whilst at that provision, can I just ask your Honours to note subsection (3), which appears on page 181, but only to say that, in my submission, I need not rely on a provision of that width, which is wider than the analogous provision in the Commonwealth Act. Your Honours, I accept that one cannot read down section 7(1)(d) so as to graft on to it defences such as reasonable excuse or some sort of justification or fair comment. That, I accept, would involve a choice as to reading down, which is legislative in character rather than judicial, and that is what was held in Nationwide News to be impermissible. The reading down that I suggest as to the scope of the word “words” is similar to the type of reading down of the words “every receipt” in D’Emden v Pedder and the word “person” in Wilson. In my submission, for that reason, it is more certain.

I accept, your Honours, that it will still result in some practical difficulty in terms of the enforcement and administration of the law, but if section 9 creates the presumption as to the intention of the legislature, which it does, then it should be given effect to, albeit obviously with some eye to any practical difficulty.

But, your Honours, in the end, reading in those words requires a police officer, presumably after some training, simply to make similar judgments to the judgments which all the population is expected to make for the purposes of the law of defamation when making statements on political and government matters and, over time, no doubt decisions will make that issue clearer for all, including police officers.

So, in my submission, in the end it is practical enough, certainly, in my submission, a more practical result than invalidating legislation which now, for close to a century, has been thought appropriate in terms of maintaining standards of public order. Your Honours, can I just hand up the equivalent sections from New South Wales, Victoria and South Australia to the section under consideration.

GLEESON CJ: This is current legislation, is it?

MR KOURAKIS: Current legislation; it is not historical and I have not attempted that exercise.

GLEESON CJ: Thank you.

MR KOURAKIS: Your Honours will see that the South Australian legislation is wide; no limitation to an intention to cause a breach of the peace or offensive or insulting language which is calculated to cause a breach of the peace and, accordingly, would raise similar problems to those in 7(1)(d).

GLEESON CJ: This is the modern equivalent of what used to be called offensive behaviour.

MR KOURAKIS: Yes.

GLEESON CJ: Some policeman always used to get into the witness-box and swear that he was offended at somebody saying a bad word.

MR KOURAKIS: Yes. Your Honours will see in section 4 the New South Wales provision in fact has a reasonable – sorry, section 4A which is the third page in, as to the New South Wales offensive language section, that in subsection (2) it creates a defence, the onus on the defendant to establish a reasonable excuse. Any difficulty in applying the legislation in the way I contend for, reading out words which are communications on political or government matters, would be no difficulty in application in applying that. Queensland had a Criminal Defamation Act of 1889 with a host of defences which, in my submission, would be more difficult in terms of practical application than the reading down for which I contend.

KIRBY J: On one view, if you get through all those gateways and you apply the second limb of the Lange test and you say that the provision as it presently stands is constitutionally imperfect, then perhaps the result of that would be to force the Parliaments of Australia to enact a law along the lines of section 4 providing a defence of the kind that New South Wales has provided.

MR KOURAKIS: Yes, and that may be the result. Your Honours, on that question can I just reinforce and support a submission made by my learned friend the Solicitor-General of New South Wales as to the test being whether the approach taken by a legislature is reasonably appropriate and adapted. The question is not whether this Court thinks that another measure would have been more appropriately adapted to the question. That point is made, in my submission, succinctly in paragraph [60] of the judgment below where a paragraph of Chief Justice Doyle in Rann v Olsen is adopted. Your Honours can see that at page 178 of the appeal book.

GLEESON CJ: Mr Solicitor, in South Australia there is a definition of “offensive” which picks up this expression, “threatening, abusive, or insulting”. Is there any such definition of “offensive” in the New South Wales legislation?

MR KOURAKIS: I cannot help you with that, your Honour, I do not know.

GLEESON CJ: That definition of “offensive” tends to tie in with what Justice Hayne was putting earlier about this being a sort of compound expression that has a long history.

MR KOURAKIS: Yes.

HAYNE J: And invites attention to when we trip off the tongue about “reasonably adapted”, to what end? Is the purpose one of public order? Is the purpose one of keeping the citizenry free from insult? The law of defamation, I would have thought, had something to say about that. What is the criminal law doing in this area? If it is keeping the peace, then, regardless of whether the section refers to “keeping the peace”, perhaps the expression “insulting” has to be understood as having an effect that is likely to provoke physical retaliation. You can argue this by reference to formulae or you can get out and grapple with what the Act means.

MR KOURAKIS: Your Honour, I accept that and it might well be notwithstanding the legislative amendment which dropped the words “intention to cause a breach of the peace” that such a construction might still be open, perhaps in a slightly different form.

Can I just make this submission, your Honours. Over the luncheon break I was able to look at some of the New South Wales legislation from the turn of the last century and there appears to have been a progression from prohibiting simply riotous behaviour to prohibiting even milder forms of public disorder. That does raise this issue and that is, in my submission, that a particular measure might be more adapted or might be appropriately adapted at one point in our nation’s history and not so in another, and it may well be that what one sees in the legislative history are changing standards as to acceptable public behaviour and the legitimate setting of a higher standard - - -

HAYNE J: Is it public behaviour or public order? The two may differ. Chief Justice Cullen in Ex parte Breen 18 SR (NSW) at pages 5 to 6 said:

I cannot regard the enactment as intending to go further than to provide a penalty for those who violate public order by language calculated to hurt the personal feelings of individuals, whether the words are addressed directly to themselves, or used in their hearing –

et cetera. But much turns on what is to be understood as a violation of public order. Are we concerned with seemliness in the streets, do not frighten the horses, or are we concerned with keeping the peace?

MR KOURAKIS: Your Honour, legislation which, on its proper construction, simply keeps the peace or is more closely tied to a provision which keeps the peace will more readily be found to be appropriate and adapted but - - -

GLEESON CJ: You should not assume too quickly that the only thing that is desired is to stop insults being offered to people who are likely to retaliate. We happen here to be dealing with a policeman who was insulted, but it is not beyond the realms of imagination that legislation like this is intended, amongst other things, to enable schoolgirls to walk home from school without having insults offered to them by passers-by, even though the schoolgirls are not likely to retaliate violently.

MR KOURAKIS: If your Honour pleases, I accept that, and the only concession I made is that one will more readily find that legislation which prohibits conduct which will tend or is calculated to cause a breach of the peace is adopted, but that does not foreclose it. It is open, in my submission, to the community through its legislature to adopt higher
standards of public behaviour. Whether or not a provision which does that is reasonably appropriate and adapted depends on an assessment of the circumstances at the time and the history seems to show the setting of a higher standard over time in offences of this type. If the Court pleases.

GLEESON CJ: Thank you, Mr Solicitor. Mr Solicitor for the Commonwealth.

MR BENNETT: Your Honours, there are three issues which I propose to address briefly, one concerning the first leg, one concerning the second leg and one concerning the issue about arrest. In relation to the first limb, may I just make this submission, that the concession becomes more understandable if your Honours glance at the pamphlet at pages 113 to 114, in the light of which, no doubt, the words may need to be construed.

Your Honours will see the heading on page 113 rather suggests a relationship between a federal issue and the relevant State issue. Your Honours see the two parts of the heading. The same appears in two other places in the document. One is at page 114, at lines 27 to 30, where your Honours see:

TOWNSVILLE COPS – A GOOD ARGUMENT FOR A BILL OF RIGHTS –

and again, there is a reference on the first page, at page 113, at line 23 to:

the feds had to be called in to protect Qld citizens from violence –

So there is, in the documentation in this case, some interweaving of the two. I only say that because we would invite your Honours, in accepting the concession, not to express any concluded view on whether the words themselves, in the absence of the pamphlet, might have been so construed. That is a question which simply does not arise in this case.

KIRBY J: This was the very pamphlet that was being handed out, was it?

MR BENNETT: It was, your Honour, yes.

KIRBY J: I do not understand that heading; it does not seem to make sense.

MR BENNETT: No, your Honour. The explanation may appear at page 101, line 14. If one puts the remark at page 101, line 14: “I’m a law student” together with what appears in the pamphlet there may well have been some attempt to relate the two.

KIRBY J: This was written by a law student.

MR BENNETT: So the evidence suggests, your Honour.

KIRBY J: Goodness gracious.

GLEESON CJ: I think we should be grateful it was not a judge.

MR BENNETT: Yes. Otherwise we simply repeat what we say in our submissions on that issue, that there does have to be a relationship and in many cases, the relationship between the police forces and in law enforcement will be sufficient to establish it.

The second matter concerns the second limb of the test and the rather pointless discussion, we would submit, which has taken place concerning the words “margin of appreciation”. Those words, of course, do come from the European Union and they arose there in a very different context. What we submit, in the conjunction with the others on our side of the Bar table, particularly New South Wales, is that one gets to the same result by a totally different route and we would submit the appropriate test is that referred to in many cases of reasonably capable of being characterised as appropriate and adapted.

KIRBY J: So you have added to that terrible expression “appropriate and adapted” “reasonably capable”.

MR BENNETT: Yes, your Honour.

KIRBY J: Really and truly, it is a very unuseful, ungainly, unilluminating formula for characterisation.

MR BENNETT: Your Honour, it is one which, in this Court, has been applied and adapted in many judgments.

KIRBY J: Quite.

MR BENNETT: May I just hand to your Honours, rather than take your Honours, to a list of references in which not all, in the context of this implied freedom, although many of them are, in which the test which has been applied is just that test.

KIRBY J: Yes.

GUMMOW J: There used to be a test of reasonable regulation coming out of the Banking Case and section 92 cases.

KIRBY J: It comes originally from the United States Supreme Court in the early 19^th century, but it does not make it any the more illuminating.

MR BENNETT: If, your Honour, one goes back - - -

KIRBY J: The problem with it, if I can say so, is talking of what is reasonably appropriate sounds very much like the Court becoming involved in the justice or justification of the law, which I find wrong in principle. That is not the Court’s province; that is the Parliament’s province. I would have thought you would be saying that.

MR BENNETT: Your Honour, the way one gets there, we would submit, is this. One starts with an implied constitutional limitation. One then looks on the other side and one sees an area of legislative competence in which a State or Federal Parliament wishes to achieve a result. Because we are in the second limb, it is a result where the relationship with free speech is one of intersection, rather than coextension. So you have a law dealing with the subject matter of public order or public safety in relation to the shooting of ducks or whatever, and one has on the other hand the freedom of speech. One has to resolve that in some way and work out whether, in the particular circumstances, the one or the other prevails.

In doing so, we would submit, one needs to start with the premise that the legislature, within the area of its competence, should be free to legislate to deal with that subject matter which is different from freedom of political speech in such manner as it chooses. Now, in giving Parliament the means to do that, one does not say, “There is only one thing you can do, and that is to stop at this point”. I rather like the way my learned friend puts it, where he says, “My freedom to swing my arm stops where my neighbour’s nose begins”. In fact, it needs to stop some way before that, for fairly obvious reasons.

In the same way here, one needs to construe the need to legislate in the context that one does not simply confine Parliament to one way of doing something. The way that is done is to ask, is the law reasonably capable of being regarded as appropriate and adapted? That contains within it a margin, which is covered by that unfortunate European phrase, but which nevertheless achieves a similar purpose. In our submission, it is an appropriate way of defining the test.

GLEESON CJ: If the answer to that is “No” in the present case, does that mean that the whole of paragraph (d) goes out, or that part of it referring to “insulting words” goes out, or does it mean that it applies, but only in relation to words that are not part of political or governmental communication?

MR BENNETT: Your Honour, it would be difficult to apply a Pidoto test to this type of implied constitutional limitation. One therefore has to ask the question and, in our submission, one would read it down. That would be the appropriate answer to the question, your Honour.

GLEESON CJ: It would be very unfortunate if the consequence were otherwise. We have legislatures now that protect people against having other people smoke in their presence. It would be very surprising if you could not protect them against threatening abuse or insulting words in public places.

MR BENNETT: Precisely, your Honour. Also, as your Honour suggested in some questions that were asked earlier today, if one has a universe consisting of 100 units and 99 of those units or 99 per cent of the circumstances where the Act applies are totally outside this freedom, it would be quite unreasonable for the whole legislation to be read down because of it, or to be held invalid because of it. It would be more appropriate to say, “Well, we don’t apply it to the 1 per cent”.

KIRBY J: Is there some principle that the Court has stated as to when it, as it were, strikes down and when it simply reads down and when it simply does not apply.

MR BENNETT: Only the Pidoto line of cases, your Honour, but one has also the statutory provisions which have been referred to which facilitate a reading down.

GUMMOW J: We said a bit about it in the Industrial Relation Case, did we not?

MR BENNETT: Yes I think that may be so, your Honour. The final matter I want to deal with is the question of arrest. May I simply make this submission. If your Honours look at the section which has been handed up, might I invite your Honours’ attention to section 35 on the last page. It provides:

It is lawful for a police officer, without warrant, to arrest a person the police officer reasonably suspects has committed or is committing an offence -

We stress the word “an” first of all. It is not a case like the cases where within a statute, a statute held to be invalid or not to apply, there is some limitation in relation to offences in that Act. This is a general provision.

Secondly, the word “offence” in that context contains within it a sorites which has a major premise, a middle premise and a minor premise. The minor premise is that the person has done certain acts. As to that, the officer can mistaken. The middle premise is that those acts fall within the language of an offence. That we know as from Little’s Case, which I will take your Honours to in a moment, that the officer can be mistaken about that. The major premise is that there is a valid Act containing that prohibition.

Why, one asks rhetorically, may the officer not be mistaken about that too? What is wrong with that? Why, as a matter of English, can one not say the police officer reasonably suspects the person has committed an offence where he is mistaken about whether an offence exists? If the officer reasonably believes it is an offence to wear a blue suit and he arrests someone wearing a blue suit, why does that not fall within it, assuming the officer’s belief is reasonable, even if there is no such statute? That, we submit, is the answer to the question.

Little’s Case, your Honours, is not on any list. It is Little v The Commonwealth [1947] HCA 24; 75 CLR 94 and the familiar passage is in the judgment of Justice Dixon, as he then was, at page 108 where his Honour says:

I think that s. 13(1) –

and section 13(1) was a provision which granted a power of arrest without warrant, like this section –

should be read as referring to the doing of acts or the making of omissions which amount to an offence. It means that, if a man is found doing such acts or making such omissions or is suspected of having done or made them or of being about to do or make, then he may be arrested without warrant.

I am sorry, that is not the passage.

HAYNE J: The next sentence is just a tad awkward, is it not, Mr Solicitor?

MR BENNETT: Yes, it is, your Honour. There was a passage in the case which said exactly the opposite in terms.....Yes, he goes on and develops it, your Honour, apparently by way of qualification of that. He says at page 111:

Clearly the purpose of a provision limiting or qualifying rights of action against officers and others acting under a statute would not be fulfilled by an interpretation excluding from its operation cases arising from mistaking the law or failing to comply with the requirements of the law.

That is the passage I had in mind. The other example of course is the remote analogy from David Securities but today we do not draw the distinction in the law of representation between misrepresentation of law and misrepresentation of fact.

GLEESON CJ: Chief Justice Griffith seemed to draw a distinction and treated as critical between a mistake in construction of a statute and a mistake as to whether a law exists.

MR BENNETT: Yes, and if one goes to that case – that is Hazelton v Potter 5 CLR – that is a case where it was a statute which was in force by paramount force in the Solomon Islands and not in force in New South Wales and that statute authorised the movement of someone by ship to Fiji and the ship stopped at Sydney and the question was whether there was a power under that statute of maintaining the arrest while the ship was in Sydney.

KIRBY J: The only difficulty with the theory is that it then breathes a sort of life by a sleight of hand into something which - - -

MR BENNETT: Could I come to that, your Honour?

KIRBY J: Yes.

MR BENNETT: I propose to answer that problem. Now, in Hazelton v Potter the problem was that the Imperial Act in force by paramount force in the Solomon Islands was not in force in New South Wales, so there was no power of arrest in New South Wales. Similarly, it was the same statute which contained the indemnity and, similarly, that statute was not in force in New South Wales. So the analysis which the Chief Justice went into and which Justice Barton went into was totally unnecessary and was pure obiter. The true ratio of the case, we would submit, appears from the judgment of Justice Isaacs, where his Honour made it clear that the whole of the Act was not in force in New South Wales and that was a complete answer.

GUMMOW J: Page 470, the paragraph “I am unable to find”.

MR BENNETT: Yes, your Honour, that is the passage.

GUMMOW J: It is as much as it was a law of Peru.

MR BENNETT: Exactly, your Honour. So the distinction drawn by the Chief Justice, as I say, is pure obiter but, in any event, we would respectfully submit it is erroneous, that there is no distinction. If one is, in this context, talking about a situation where one reasonably suspects that an offence has been committed, then one can reasonably suspect that an offence has been committed whether or not there is such an offence.

It might be different if one has, as in some of these cases, a statute which says, section 1, you shall not do X, penalty five years; section 2, a police officer reasonably suspected an offence has been committed under section 1 may arrest. Clearly, if you have that sequence, if section 1 is invalid, section 2 is not going to operate, but that is just a matter of construction. Where you have a general section, talking about belief in whether an offence has been committed, then, in my respectful submission, one is on the other side of the line.

McHUGH J: But this has to operate in a constitutional context.

MR BENNETT: Now, that is what I am coming to, your Honour. The next - - -

McHUGH J: Can I also say this to you, that Little v The Commonwealth is a very conservative decision. I am not sure that later decisions like Hudson v Venderheld and Australian National Airways and cases like that in this Court have given a much narrower construction to these provisions.

MR BENNETT: Your Honour uses the word “conservative”. I am not quite sure that is a basis for overruling a case on its own. We would respectfully submit that it is simply a question of giving a wide meaning to words in a statute - - -

McHUGH J: There were two separate lines of authority. I read scores of these cases at one stage. In Little’s Case Sir Owen Dixon upheld the right of police officers and other people, but there were other cases, and in England under the Public Liabilities Act, and some of them are collected in the argument in Hudson v Venderheld, which took a more liberal view in favour of the subject.

MR BENNETT: It is going to arise again in Taylor v Ruddock if special leave is granted in that case.

GUMMOW J: I was going to ask you that. Has an application for leave been made?

MR BENNETT: The time has not yet expired for it, your Honour, but I can tell your Honour it is probable that one will be made. No doubt if it is, there will be a notice of contention in relation to the passage that was read to the Court this morning, but I do not know.

Your Honour, the answer to the constitutional argument is this. One always has to be careful of an Antill Ranger-type situation where the constitutional prohibition is defeated by a backdoor. That would be so if a person could be dealt with and punished because someone suspected that an unconstitutional offence had been committed. That does not necessarily apply at the earlier stage of arrest.

It is not necessarily unreasonable for a legislature to say occasionally police officers are mistaken. It is appropriate where a citizen is arrested wrongly for the citizen to submit and then afterwards seek to enforce his or her rights.

McHUGH J: But supposing the Communist Party Dissolution Act had a section equivalent to section 35 in it. Police officers run in, they seize property of various people that are named in warrants. They arrest them. You are going a long way to say that nevertheless they had no right of action.

KIRBY J: Do not worry about the Constitution as long as you reasonably interpret it to get away.

MR BENNETT: No, your Honour.

KIRBY J: It does not seem a very constitutional doctrine.

MR BENNETT: There are many situations where the law has to deal with the problem arising where there is doubt about constitutionality of something. One is the area of law dealing with interlocutory injunctions in this Court in constitutional cases. That is an area where this Court has gone the other way, where it has said there is a presumption of constitutionality and except in the most extreme cases injunctions are not granted on the basis that an Act might be invalid.

Now, I give that as an example because, in a sense, arrest where there is a belief that there is a law which has not yet been held to be unconstitutional is something which can very much be in the same category. It is in the category - - -

McHUGH J: It does not seem to me to be much of an analogy, Mr Solicitor, to talk about injuncting the Executive Government from declaring an Act that has been passed by the legislature and imprisoning somebody, because that is what an arrest is.

MR BENNETT: Your Honour, the analogy was rather a person seeking to enjoin the enforcement of a right given under a law claimed to be unconstitutional. That was the line of cases to which I was referring – Castlemaine Tooheys, I think.

GLEESON CJ: It is a little more complicated than that, Mr Solicitor. Mr Lowe’s client is not suing the policemen in these proceedings for wrongful arrest. What he is doing is justifying biting a policeman.

MR BENNETT: Yes, precisely, your Honour. That is the point I am trying to make, which is that in both types of case the law has to deal with the problem of dealing with the intermediate situation, where one does not yet know what the Court is going to say about the constitutionality of the provision. There would be a very different question of reasonableness if this Court were to hold a section to be invalid and the next day or next week or next month someone was to arrest in reliance on that section. There would be a very real question of reasonableness there.

McHUGH J: But an issue of reasonableness must arise here. It does not follow, if this legislation is struck down, that the appellant can get away with biting people. I mean, if he is assaulted by being wrongly arrested, he may be entitled to use reasonable force to repel the assault on him. Query whether or not biting would answer such an offence.

MR BENNETT: Precisely, your Honour, and that is an illustration of the problem. The problem is dealing with the unconstitutionality before one knows it is unconstitutional. There is no reason, we would submit, why a legislature cannot say, if a policeman reasonably believes that an offence has been committed, even if the section on which the policeman is relying for that view is a section held to be unconstitutional subsequently, the policeman is entitled to arrest and the arrest is lawful.

KIRBY J: I can understand why you would be putting that because this, with private clauses, will be a wonderful bonanza, to walk right out of the requirements of the Constitution. But if you assign to the Constitution a higher law and if you seek to uphold it and ensure that it is given proper deference in our country, then you have to give consequences to that and they will sometimes be rather inconvenient - for example, Ha. What if you had had something in Ha saying if it was reasonable that the States thought in the light of the decisions on excise that they could get away with it, they can get away with it and you cannot recover it. I do not like that.

MR BENNETT: Your Honour, what I am dealing with at the moment, as I understand it, is I am defending the constitutionality of section 35, in particular in its application to situations where the police officer’s reasonable belief is based on the police officer saying something in a statute book and being told that he has to form a view analogous to that to which your Honours will ultimately form as to whether the Act is constitutional or not. In my respectful submission, it is clearly appropriately adapted a fortiori within the wider test that I propose for a State to legislate in general terms that where the reasonable suspicion exists there is a power of arrest and, by implication, that reasonable suspicion includes the situation where the underlying statute turns out to be contrary to the Constitution.

GUMMOW J: Yes, but those propositions are themselves propositions of constitutional law, are they not?

MR BENNETT: Yes, your Honour.

GUMMOW J: And, in the end, Marbury v Madison propositions.

MR BENNETT: Your Honour, Marbury v Madison has never been held to interfere with the interlocutory injunction situation to which I have referred.

GUMMOW J: I understand that, but that is where they have their root.

MR BENNETT: Yes. This is analogous to that, at least in the case before - - -

GUMMOW J: The question is the scope of Marbury v Madison. That is what it is all about.

McHUGH J: But what you have to say is that it is open to the Parliament to say it is a legitimate object to protect executive officers against unconstitutional enactments to pass legislation along these lines.

MR BENNETT: Yes, your Honour.

GUMMOW J: You have to say yes, do you not?

MR BENNETT: I do say yes. Suppose, your Honour, a State were to pass or the Commonwealth were to pass the Unconstitutional Laws Act and that Act were to provide that where a law is passed which is held to be unconstitutional, the effect shall, so far as possible, flow from the date of the Court’s decision and shall apply in relation to all subsequent cases, something along those lines. That would, in my respectful submission, be a totally valid law. It is part of dealing procedurally, if one likes, on an interlocutory basis with the problem of unconstitutionality before it is known to be unconstitutional.

KIRBY J: It sounds like an invasion of the judicial power to me.

McHUGH J: And we rejected prospective overruling.

KIRBY J: Unanimously in Ha.

MR BENNETT: But that was prospective overruling by the Court as opposed to legislative Act achieving the same effect.

KIRBY J: Yes, but the Court’s order has its own consequence and renders invalid that which was done under the unconstitutional Act. The fact that the Parliament says “Well, don’t you worry too much about that; we’ll only date the consequence from a certain date” will not matter a jot under our Constitution. The consequences will follow from the judgment of the Court.

MR BENNETT: The only alternative would be on every application for an interlocutory injunction to this Court in a constitutional case either for the Court to assume the law to be unconstitutional or to determine unconstitutionality on the interlocutory hearing, which is an approach the Court has never taken.

GUMMOW J: No. You are looking at it before the race starts. The present debate is after the race is finished and the court has made its final decision, right?

MR BENNETT: Yes.

GUMMOW J: They have refused an interlocutory injunction. Nevertheless, after a proper hearing, full hearing, it says invalid.

MR BENNETT: Yes.

GUMMOW J: That is what we have to focus on.

MR BENNETT: And the defendant was not restrained prior to that.

KIRBY J: I think you are just being provocative on the first day of our 2^nd century, Mr Solicitor.

MR BENNETT: No, your Honour, far be it for me to be provocative - - -

GUMMOW J: Now, on this question of reading down, the reference I had in mind was the Industrial Relations Act Case 187 CLR 416 at 501 to 503. You will remember that there were some sections of the Commonwealth Act which applied to the States which were read down so as to accommodate the Melbourne Corporation doctrine and that reasoning is reflected in the answer to question 4 at pages 574 to 575.

MR BENNETT: Yes.

GUMMOW J: So that is an example of an implication, which is why I mentioned it. It is an implication restraining power, kind of like what we have here.

MR BENNETT: Yes. The other example I suppose which is more a remote analogy is that of Milicevic v Campbell. I do not have the reference in front of me but your Honours will no doubt recall it. That is the case where one of the issues - - -

McHUGH J: I think it is about 131 or something like that.

MR BENNETT: Yes, about that, your Honour. The issue was legislation - - -

GUMMOW J: It is reverse onus of proof, is it not?

McHUGH J: Yes.

MR BENNETT: Yes, which talked about possession of heroin reasonably suspected of having been imported. Of course if it had not been imported, there was no Commonwealth power, but the section was nevertheless valid. That is, of course, largely the incidental power.

McHUGH J: In Fontana one of those deeming provisions was struck down as invalid. Section 45D(5) was struck down on the basis that Parliament deemed something to be what it was not.

MR BENNETT: There is a difference between deems and reasonably suspected.

GUMMOW J: We looked at these questions again in Nicholas v The Queen you will remember – we looked at Milicevic again.

MR BENNETT: Yes. But, in my respectful submission, there is nothing contrary to the implied freedom in saying that one can have a law which justifies arrest where the police officer reasonably suspects the existence of an offence, notwithstanding that the offence either does not exist or is unconstitutional. The final thing is, of course, the unconstitutional part cannot be higher than mere non-existence. In my example of the blue suit, it is clear that the section would apply to exonerate the policeman.

I will not, in view of the time, make any submissions in relation to the question of the scope of the statutory prohibitions, especially as there are going to be written submissions on that, but I would seek to be included
in the leave to answer any submissions that are put on, on that subject. Otherwise I simply adopt my written submissions.

GLEESON CJ: Thank you, Mr Solicitor. Now, Mr Lowe, you might have heard earlier that we gave leave to some of your opponents to put in further written submissions. Would you prefer to reserve your reply to making a written reply after you have received those submissions?

MR LOWE: Yes, I would, your Honour.

GLEESON CJ: All right. Well let us proceed on that basis.

MR LOWE: Yes. I will be very brief in reply.

GLEESON CJ: I thought you just told us you were going to put your reply in writing.

MR LOWE: Certainly, I will put it in writing, thank you.

GLEESON CJ: I do not want to cut you out from saying anything you want to say.

MR LOWE: Just on the issue of the bites, your Honour, it was an attempted by, it followed a very difficult handcuffing - - -

GUMMOW J: We have read the transcript.

MR LOWE: Yes, and importantly – this is found in the chronology – following his arrest he was refused bail because the appellant would not sign a bail form because one of the conditions that the police wished to put on him is precluding him from going to Townsville Mall.

GLEESON CJ: You can put your submissions in reply on within 14 days after you receive the submissions that have been foreshadowed from your opponents. Subject to those written submissions that are to come, we will reserve our decision in this matter. We will adjourn until 10.15 tomorrow morning.

AT 4.20 PM THE MATTER WAS ADJOURNED