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High Court of Australia Transcripts |
Last Updated: 10 June 2014
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S36 of 2014
B e t w e e n -
SLEIMAN SIMON TAJJOUR
Plaintiff
and
STATE OF NEW SOUTH WALES
Defendant
Office of the Registry
Sydney No S37 of 2014
B e t w e e n -
JUSTIN HAWTHORNE
Plaintiff
and
STATE OF NEW SOUTH WALES
Defendant
Office of the Registry
Sydney No S38 of 2014
B e t w e e n -
CHARLIE MAXWELL FORSTER
Plaintiff
and
STATE OF NEW SOUTH WALES
Defendant
FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL
J
BELL J
GAGELER J
KEANE J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 10 JUNE 2014, AT 10.15 AM
Copyright in the High Court of Australia
____________________
MR G.R. JAMES, QC: May it please the Court, I appear for the plaintiff, Tajjour, with my learned friends, MR P.D. LANGE, MR E.M.M. JAMES and MR A. AHMAD. (instructed by Matouk Joyner Solicitors)
MR G. O’L. REYNOLDS, SC: If the Court pleases, in matter No S37/2014 I appear for the plaintiff with my learned friend, MR D.P. HUME. (instructed by Matouk Joyner Solicitors)
MR W.P. LOWE: If your Honours please, I appear in matter No S38 for Mr Forster, together with MR E.M.M. JAMES. (instructed by McGowan Lawyers)
MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friends, MR J.G. RENWICK, SC and MS K.M. RICHARDSON, for the defendant in each matter and for the Attorney-General for New South Wales who is an intervener in the proceedings. (instructed by Crown Solicitor (NSW))
MR M.G. HINTON, QC, Solicitor-General for the State of South Australia: If the Court pleases, I appear with my learned friend, MS N.M. SCHWARZ, for the Attorney-General for South Australia intervening. (instructed by Crown Solicitor (SA))
MR S.G.E. McLEISH, SC, Solicitor-General for the State of Victoria: If the Court pleases, I appear with my learned friend, MR P.D. HERZFELD, for the Attorney-General for Victoria intervening. (instructed by Victorian Government Solicitor)
MR G.R. DONALDSON, QC, Solicitor-General for the State of Western Australia: If it please the Court, I appear with my learned friend, MS M. GEORGIOU, for the Attorney-General of Western Australia intervening in all matters. (instructed by State Solicitor (WA))
MR P.J. DUNNING, QC, Solicitor-General for the State of Queensland: May it please the Court, I appear with my learned friend, MR G.J.D. DEL VILLAR, for the Attorney-General for the State of Queensland intervening. (instructed by Crown Law (Qld))
MR B.W. WALKER, SC: May it please the Court, I appear with my friend, MS A.M. MITCHELMORE, for the Australian Human Rights Commission seeking leave to be heard as intervener or amicus curiae. (instructed by Australian Human Rights Commission)
FRENCH CJ: You have leave to be heard as amicus, Mr Walker.
MR WALKER: If it please the Court.
FRENCH CJ: Yes, Mr James.
MR JAMES: May it please the Court. The oral argument has been provided - the outline of oral argument to the Court officers. Your Honours will see that in the first paragraph we seek that we might divide the presentation of the submissions with my address confining itself to the issue of political communication, Mr Lange to deal with matters – in particular 2, 3 and 4 of the questions arising on the stated case, that is, freedom of association and the application of international instruments and conventions. Such a division, in our submission, will assist a succinct presentation of the argument in total and is likely to mean that we will not need to occupy the two hours that it had been indicated in our written submissions we might otherwise take.
FRENCH CJ: Yes, you may proceed, Mr James.
MR JAMES: Thank you, your Honour. Your Honours, the written submissions, the reply and the oral submissions and what I now say all make the same point, that is, that section 93X, as it now is of the Crimes Act (NSW), provides for a regime under which – because of the definition section, section 93W – there is, in our submission, a direct stifling, insofar as the section applies, of communication except in the context set out by section 93Y which provides for a defence or defences subject to the defendant satisfying the Court that the consorting was reasonable in the context of those defences. Not included amongst the defences is anything that might comprehend political communication of any kind whatsoever.
CRENNAN J: Would that preclude that defence being run?
MR JAMES: It is not a statutory defence. A reading down or an implication into the legislation might allow some form of political communication to be exempted, but it is plainly enough drafted with a view to excluding that. It casts the onus on the defendant. It casts the onus on the defendant to show that the consorting is reasonable so it might be disregarded for the purposes of the Act and, in short, in our submission, the sections taken as a whole are calculated to preclude any form of communication which might include political communication in the strict narrow sense, or any of the substance of dialogue, discussion that might itself inform the political communication amongst electors.
FRENCH CJ: I suppose we must begin, therefore, with the proper construction of the impugned provision and not least the content of the concept of “consort”.
MR JAMES: Yes, if your Honour pleases. “Consort” is defined in 93W, and it is a means definition, not simply an inclusive definition:
means consort in person or by any other means, including by electronic or other form of communication.
The concept seems to be that one can now consort remotely, not simply by physical presence or contiguity, so that the definition of “consorting” here is much wider than the concept as it has traditionally been understood in consorting legislation, that kind of legislation which was aimed to prevent those in a criminal milieu being in each other’s physical, close physical presence, particularly in the context of criminal activity.
This includes, on its face, at least direct electronic or other forms of communication and may by reference to the words “or by any other means”, include indirect communication. The ambit of the definition is extremely wide. The definition also refers to “convicted offender” as indicating “a person who has been convicted of an indictable offence”. That definition does not relate solely to persons who have been convicted on indictment.
It relates to those against whom a conviction for an offence, whether prosecuted on indictment or before a magistrate, of that category of offences which are liable to be dealt with on indictment in New South Wales. Section 3 of the Criminal Procedure Act (NSW) makes it clear that that is the position. There are elections to enable matters of an indictable offence to be dealt with in Local Courts or on indictment, but the definition is not concerned with that election. It is concerned with the, as it were, catalogue of offences. Such offences include minor larcenies, including shoplifting; minor assaults, stretching through to the most serious offences in the calendar.
The section does not provide for a definition of “habitually consorting” but does provide in subsection (2) that habitually consorting is not constituted unless the consorting is with at least two convicted offenders, whether on the same or separate occasions - that leaves the concept that you can consort with one and then later with another – and that the consorting with each convicted offender is on at least two occasions. The section does not limit that to a gathering of only such people, but includes their presence in a group within which the consorting might occur with others not convicted, indeed, any group including such people that meets on at least two occasions would enable a conclusion of habitual consorting to be drawn.
HAYNE J: Mr James, there is no suggestion in this case, is there, that any of the events or circumstances alleged against your client constituted an occasion of political communication? Is that right?
MR JAMES: No, your Honour, with respect. If I take your Honour to the form of the stated case your Honours will see that paragraph 2f they are seated in the café anteroom to the court building in Sydney. There is no reference to what topic, if any, might be the subject of discussion.
HAYNE J: Exactly, so there is no fact agreed that there was any event or circumstance which constituted a political communication?
MR JAMES: I have to accept that, your Honour.
HAYNE J: Does it follow that the claim which you make must be that the Act is wholly invalid, or the relevant provisions of the Act are wholly invalid because those provisions, let us leave aside whether it is “do” or “might”, impair the freedom of political communication and cannot be read down?
MR JAMES: Yes, your Honour, and, indeed, we say so.
HAYNE J: The question becomes one, ultimately, does it not, of severability or reading down?
MR JAMES: And, indeed, all other questions aside, yes, your Honour. We have said so in our submissions and in the outline. Our submission is that it cannot be so severed and it cannot be read down to preserve the integrity of the flow of political information and discussions.
HAYNE J: Why not? Why could it not be read as consorting otherwise than for the purposes of political communication?
MR JAMES: Firstly, because it does not say so. Secondly, because it expressly says that only certain forms of consorting are to be disregarded and they do not include what could well have been included, that is, that consorting for the purpose of exercising political communication is to be disregarded for the purposes of this Act and it plainly was not intended to do that. Nothing in any of the extrinsic material suggests any prospect of it.
CRENNAN J: Maybe a political communication is not a form of consorting. Maybe that is the explanation for what is included in section 93Y.
MR JAMES: I understand what your Honour is putting. If your Honour goes to 93W, the content is not discussed in the definition or in the defence exceptions. I have called them defence exceptions because they are obviously meant to be an exception to the broad range of the offence.
FRENCH CJ: When you say the content, you mean the content of the term “consort”?
MR JAMES: No, the content of the communication that might be caught by the consorting. The only guide one gets as to content is in the context in which the communication might occur in the defences. That relates, for instance, to consorting with family members in the course of lawful employment and the things that occur in particular context in which some guide might be given to the content, but not much, unless one assumes that the defences can only succeed on the reasonableness basis if the defendant is able to show that the content of the communications reasonably is for, for instance, family purposes with family members – lawful employment or lawful operation of a business, et cetera.
There is no suggestion within the defences directly that the content is to be confined except as arises by the use of that term “reasonableness”. So my submission to your Honour would be that no, the definition of “consorting” does not contain within it the potential to be able to write it down for a purpose where the whole of the provisions are designed to transcend purpose, even in the defences.
KEANE J: Mr James, if a politician, a sitting Member of Parliament, sends a newsletter each week to all that politician’s constituents and he happens to know that some of them are persons who have convicted of indictable offences, is the politician consorting with those people?
MR JAMES: Under this Act, probably yes, your Honour.
KEANE J: It seems a rather - - -
MR JAMES: A clergyman addressing his congregation, a person at a meeting, provided of course the elements of habitual and warning are involved, the act is framed to be wide and - - -
BELL J: By adopting the expression “habitually consorts”, the legislation was picking up an expression that had an acquired meaning in 2012, did it not?
MR JAMES: The expression “habitual” is of a very long history.
BELL J: “Habitually consorting” is equally of long history and had an acquired meaning at the time this legislation was passed.
MR JAMES: Yes. It does not mean that if you do it on one or two occasions, that is enough to get you there. It does mean that when one looks at subsection (2) that “habitually consorting” means that there has to be at least two convicted offenders and on at least two occasions. That is the bottom line.
BELL J: Absent that, one could not be convicted, but that is not necessarily a sufficient condition. It is a question of fact, is it not?
MR JAMES: Yes.
BELL J: As to whether a person is habitually consorting in the way that term has been defined.
MR JAMES: Certainly. As Justice Keane pointed out to me, if a politician sends out his newsletter every week, every month, depending on his industry, and does it regularly and continuously to inherently the same group, there is no reason to say he is not habitually consorting in the sense the Act refers to in the definition of “consorting”; similarly, to the clergyman with his congregation.
This is an Act that is framed, we submit, with the intent to proscribe, subject to the condition of the giving of notice and the indictable offences, communication at the untrammelled determination of a police officer, whether orally or in writing and without reasons, of persons who are subject for life thereafter to a disability arising from their conviction, not such as would disqualify them from being electors when one has regard to the test in Roach, but could be disqualified thereby from having the very material they might need to discuss even their own situation with a view to political discussion and debate.
Your Honours, in the oral submissions, the outline of oral submissions, we have expressed what I have said in paragraph numbered 2. We refer to the nature of the warnings in paragraph number 3 and our submission is that the legislature of New South Wales in this provision has produced a provision that has a direct and immediate effect on political communication as it does on all forms of communication other than those that are referred to in the defences. The consequence is, in our submission, that the first limb in Lange is satisfied. There is a burden.
Provided that there is a real burden, in our submission, one then turns to the second limb, however that second limb might be expressed, and our submission is that having regard to the end, which is variously expressed but tends to try to pick up the concept of deterring criminality, having regard to the indictable offences concerned able to be of such breadth, such distinctly different nature from one to the other - a minor fraud through to a murder, a shoplifting through to a sexual offence – that the object seems to be a sort of general deterrent of criminality depending upon the approach of the individual police officer in the warning.
That warning is not qualified as to number or even the mode of description of those in respect of whom it is given other than that they be identify adequately as convicted persons, so that there is no qualification as to the nature of the communication, time, place or content other than is expressed in the defences.
Our point then is that this is not merely incidental. Even having regard to the propounded purpose it might be incidental to the propounded purpose, it is not incidental in its effect on communication. It is direct. The test concerning the object of the legislation is itself, whilst obviously as a general proposition a legitimate object expressed as it has been and with this in mind, when one comes to look at the provision itself the effect it is designed to accomplish seems to be extremely vague.
To deter the making of corrupt donations it might be thought a legitimate object to prevent associations of one kind or another making any contribution to the electoral debate in money terms or to restrict that contribution, but looking at the end in that case, that is, in terms of unions’ donation, a much clearer and more specific end than is referred to here.
What is it that the provision, read properly, is meant to deter, is meant to strike at? Any form of communication or physical proximity of a habitual kind between individuals who may at any time in their past, subject to the Criminal Records Act, having the effect for which New South Wales contends, at any time in their past may have been convicted of an indictable offence before a magistrate or a jury and judge, no matter what the disparity of the offences may be, so that the police officer can in effect warn them off, except in the situations in which they can prove to a court that their relations fall within the defence categories and are reasonable.
BELL J: Well, now, all of those are the sort of policy considerations which this Court in Johanson v Dixon [1979] HCA 23; (1979) 143 CLR 376 acknowledge were contestable, but these are matters that have formed part of the fabric of the law in the Australian jurisdictions for a very long time and have analogues in other aspects of the administration of criminal justice and what might be described as quasi criminal justice, and I speak there of apprehended violence orders and the like.
MR JAMES: But this is in addition to apprehended violence orders and the like, bail orders and such like, which in an - - -
BELL J: Indeed, but what I am taking up with you when you ask what the policy is, it seems everyone would accept that the policy is that stated by Chief Justice Mason in Johanson as intended to prevent an individual being exposed to temptation or to lead to that individual’s involvement in criminal activity. Now, whether that is a desirable policy or not is another issue but that would seem to be common ground as to the policy of this legislation and it is - - -
MR JAMES: I am not concerned to challenge that the government had the policy or that it might have an overall desirability from the viewpoint of New South Wales.
CRENNAN J: You did say its effect was vague.
MR JAMES: What I am submitting, however, your Honour, is that what it is designed to do in implementing that general policy is to produce a measure whose relationship with that policy end is extraordinarily remote and the policy expressed as a general deterrent to temptation could, in fact, justify anything.
Now, it is further, as Chief Justice Mason pointed out, that it is to prevent the involvement in criminality but this goes, does not link up with preventing the involvement in criminality unless you derive some sort of implication from the idea that persons once convicted of an indictable offence, long, long ago - and I think we have expressed it as possibly antique - from that the provision that they are not to talk to those who are designated to them, remotely or otherwise, as convicted offenders, will deter them and others from criminality. Our submission is - - -
KEANE J: Mr James, it seems to be fundamental to your argument that any form of communication per se equals consorting.
MR JAMES: The definition simply says, your Honour, that:
consort in person or by any other means, including by electronic or other form of communication.
KEANE J: That is right. There can be consorting by electronic communications, but you seem to be arguing that any communication at all, of itself, without more, amounts to consorting.
MR JAMES: Because 93Y stipulates forms of consorting which are to be disregarded and from that one can derive that all other forms of consorting are not to be disregarded.
KEANE J: It identifies a number of contexts in which, where consorting occurs, it is to be disregarded. But am I right in understanding your argument to be that any form of communication between A and B equals consorting between A and B?
MR JAMES: Prima facie, yes. We have to go that far.
KEANE J: It would have been a lot easier if they said that, would it not? I mean, if we are to discern in the legislation an intention that people should not speak to each other one could expect to see that actually said in terms.
MR JAMES: One could actually expect it the other way when you have got legislation of this kind to simply put in the additional context otherwise than in the context of political discussion, which would have solved the problem, one might have thought, that “consorting”, defined as widely as it is, could have had a qualification attached to it.
KEANE J: Mr James, if people attend branch meetings of their political parties and members of the branch include people who have convictions for indictable offences and the other branch members know that is the fact, are they consorting with them?
MR JAMES: Yes, your Honour, and maybe habitually, and given a warning, then that puts paid, unless they are prepared to commit a criminal offence, to their continuing in the political discussion in the branch meeting.
BELL J: If a police officer were to give an official warning to a person present at a meeting of their political party, would the giving of the warning under the exercise of the statutory power be subject to judicial review?
MR JAMES: The warning itself, the basis on which the warning might be given otherwise than in relation to persons with prior convictions for indictable offences, the reasons for the giving of the warning and so forth are not required under the Act.
BELL J: I understand that, but the question remains - - -
MR JAMES: It is hard to contemplate how one could judicially review the police officer’s decision in that context, or practically review the police officer’s decision otherwise than after some considerable time the warning can be given requiring compliance there and then. You do not get very much opportunity for an application for review in those circumstances and nor is it easy to contemplate just on what basis one would get that review. This not a warning that is given such as a power of arrest to be exercised on reasonable suspicion, this is a warning that the officer can give for whatever reason seems to the officer appropriate for the giving of a warning.
FRENCH CJ: The notion of consorting has a long legislative history and a very broad definition as explained by Sir Anthony Mason in Johanson by reference to associating or keeping company. Having regard to the provisions of 93Y, does that history include associating with family members or in the course of lawful employment or in the course of training or education? Is there anything you would point to that would indicate that that was ever regarded as consorting?
MR JAMES: Traditionally consorting involved that physical proximity for physical association. The consorting legislation, at least in New South Wales, did contemplate that persons would not be consorting with some family members, sometimes extended family, sometimes closer. At no stage of which I am aware did traditional forms of consorting catch up (b) to (f) in the 93Y defences. This is a form of consorting that goes well beyond anything that has been contemplated by the more traditional forms of consorting predating the decision in Lange. Certainly in the South Australian decision in Jan v Fingleton (1983) 32 SASR 379, Chief Justice King at 380, did point out that under that State’s consorting legislation:
the conduct to be punished might be quite innocent. A person may find, by reason of the family into which he was born and the environment in which he must live, that it is virtually impossible to avoid mixing with people who must be classed reputed thieves. He is to be punished not for any harm which he has done to others, but merely for the company which he has been keeping, however difficult or even disloyal it might be to avoid it. The wisdom and even the justice of such a law may be, and often has been, questioned.
But, yes, I have to concede, your Honour, that some members of the families traditionally could be caught by traditional consorting legislation.
That legislation particularly turned on physical proximity, each to the other. We live in a different world, one can concede, that allows communication by much more remote means but nonetheless, consorting was traditionally not focusing on communication. It was focusing on the getting together of a criminal milieu with possible criminal designs. A more focused and more precise goal than as was expressed in those words Justice Bell put to me from Sir Anthony Mason.
This goes well beyond that. That is why we submit that the burden is direct that the proscription of communication, if not totally so wide as by the Act to intend to refer to political communication and that it extends to such an extent in time and in content as to be a burden that is impermissibly, whatever be the appropriate formulation for assessing its proportionality or its reasonability adapted to the end, that it well exceeds what is appropriate for achieving the goal because it takes with it political communication.
The provision actually not only proscribes political communication as part of the proscription on all communication, it is not reasonably compatible with the free flow of political communication as it in effect disempowers a substantial portion, or a significant portion of the electorate. It may be that to deny one person their opportunity to participate as one of the people referred to in the Constitution in the government of the country is itself a burden of not an insignificant kind when one comes to look at the extent, depending on who the person might be, for instance it might be the Leader of the Opposition with an indictable conviction in his history.
Nonetheless, the extent of the burden is, subject to the defences, we would submit, effectively total. It does not exempt as it could political communication. It is on its face unable to be severed or read down without putting in a definition, putting in a written in exception and would then require the police officer in the street to implement it.
Now, your Honours, we have provided the written submissions, the reply and the oral argument. I would simply be in other words repeating or detailing what it is I have said were I to go over them in any greater detail than I already have before your Honours. They are the submissions that we put on the question of political communication in-chief.
FRENCH CJ: Yes, Mr Lange.
MR LANGE: Your Honours, I too hope to adopt a similar approach. The Court already has extensive written submissions. I will not go through those in detail. In advancing submissions concerning the freedom of association, the first point about which I will be addressing your Honours today, I am of course mindful of what this Court said in Wainohu’s Case.
In the written submissions I have sought to trace through the history of freedom of association and its discussion in the cases and I would be submitting to your Honours that in no case so far has the issue of freedom of association proven to be the decisive issue. As I say of course in Wainohu it was said that any implied freedom of association would be a corollary of any implied freedom of political communication.
In my submission, though, one ought not to be taken aside by the question of nomenclature, but one must look at what in fact is guaranteed by the Constitution because even when one considers the submissions advanced on behalf of the interveners and the defendant, it becomes plain that this corollary is still an unidentified or unspecified aspect, and I say that for this reason.
If one looks at, for instance, the submissions of the defendant, New South Wales, at paragraph 46, it is said that social interaction is simply not relevant to the inquiry under Lange. The Attorney for South Australia would appear to accept that social interaction might be protected but, if so, it is already protected by the implied freedom of political communication. Queensland at paragraph 20 would appear to accept that it is not required to facilitate responsible government and therefore does not come within the Lange test, whereas Victoria at paragraph 44 states that the idea of social interaction is simply too tenuous from the requirement of responsible governments and therefore is not a matter of necessity to be implied into the Constitution. I might add that such an expression would appear to accept that there may be other interactions outside of political discourse which are capable of being caught by the implied freedom but - - -
BELL J: The implied freedom of what if it is outside political discourse?
MR LANGE: So far it has been said that there is only an implied freedom of political communication and what I would seek to address, your Honours, today is the extent of that.
BELL J: Yes, going to your paragraph 5.55 on page 15 of your submissions, you identify a guarantee under the Constitution by implication for the purpose of protecting interaction encompassing familial and social interaction.
MR LANGE: Yes, your Honour.
BELL J: Now, where in the text and structure of the Constitution do you find that?
MR LANGE: In my submission, it is to be found in precisely the same provisions which ground the implied freedom of political communication -sections 7, 24, 64, 128.
BELL J: What is it doing if it is not advancing the considerations that inform the implied freedom?
MR LANGE: It is doing precisely the same, your Honour.
BELL J: Then what is wrong with the statement in Wainohu that - - -
MR LANGE: Nothing at all.
BELL J: Then what more is there than is stated in Wainohu?
MR LANGE: What there is, is this, your Honour. In my submission, the statements so far seek to draw a line where political discussion is involved. In my submission, however, it is very difficult to draw a bright line at that stage because in order for an elector to form an opinion, that is, for him to hold his government responsible, he must have information. So much was accepted in the Unions Case. The implied freedom is there to secure the free flow of information.
But if I could hearken back to what Justice Gaudron said in the Stolen Generation Case about a person being an island, it is not simply a matter of having political advertising or pamphlets being sent out by potential Members of Parliament that inform a person’s decision about how he should vote or how he might exercise his rights. But he can only form that opinion within society through the interactions with other members of society. That is what we say is a necessary part of the implied freedom of political communication if it be embraced under that rubric or, separately, as an implied freedom of association.
CRENNAN J: Have you thought about the difference between an implication from the Constitution and an unexpressed assumption which the framers had in mind which is referred to by Chief Justice Mason in the Australian Capital Television Case [1992] HCA 45; (1992) 177 CLR 106 at 135?
MR LANGE: Indeed and, in my submission, this is an implication rather than an assumption that would be dealt with by the passing of legislation by the legislature. I say that again because an implied freedom for which I advocate goes precisely to the same end as the implied freedom of political communication which has been acknowledged by this Court. It is simply another source of information. What, in my submission, is of note in Unions Case - and I should give your Honours the citation, (2013) 88 ALJR 227 is that the bright line about which I have spoken is increasingly difficult to draw.
It was acknowledged in the ACTV Case that it is not simply communication with the members by the electors. It was acknowledged in Unions specifically that it is not simply communication amongst the electors which need protecting. It is also communication with other persons who might not have the right to vote that requires protection, and, indeed, as was also said, it is not simply issues about federal elections or federal governments which are protected because of the necessary hand-in-hand relationship between State and federal matters. Indeed, as was acknowledged at paragraph [22] on page 233:
Social, economic and political matters in Australia are increasingly integrated.
It is for that reason I say that the ability to associate and, necessarily, as is said by the Attorney for South Australia, to communicate, it is necessary that that source of information be available as well.
FRENCH CJ: Is the proposition reduced to this, that a burden on – or restriction on freedom of association imposes of its nature a burden or restriction on freedom of communication because people communicate through association.
MR LANGE: Necessarily, that is right.
FRENCH CJ: In which event it is really just an argument about the implied freedom of political communication, is it not?
MR LANGE: It is an argument about the extent of the implied freedom because, as yet, it has been said by this Court on a number of times that there may be a freedom of association - - -
FRENCH CJ: It is putting an argument about the ways in which it can be burdened, is it not?
MR LANGE: That is precisely correct. Yes, your Honour, I will accept that.
CRENNAN J: But you say it is an argument about the extent but it is not an argument which challenges truly, does it, the corollary notion?
MR LANGE: No, I accept that – only to this extent. If it is said that a corollary is wholly coterminous with the implied freedom of political association - - -
HAYNE J: Well, if it is not, you have this difficulty. The freedom you assert is asserted as a limit on legislative power, is it not?
MR LANGE: That is right, your Honour.
HAYNE J: The limit on legislative power presumably takes the form of no interference without good reason.
MR LANGE: Yes.
HAYNE J: The real burden of the proposition becomes what is a good reason. Other than freedom of political communication and the considerations that relate to that, what else are we talking about?
MR LANGE: Again, we are talking about the availability of sources of information and that extends beyond, we suggest, the freedoms currently interpreted only to relate to political discourse – or the discussion of political matters. It relates to social interactions because there that is where the opinions - - -
GAGELER J: So the implied freedom of political communication becomes an implied freedom of communication generally.
MR LANGE: Generally, yes. Could I answer your Honour Justice Hayne also in this respect? Not only does one see a need for association in the context of sections 7, 24 and so forth but, necessarily, I would submit, one sees those also in sections 92 and 116. The underlying premise of the Constitution is that certain activities of the people require that there be association because without association there can be no trade, there can be no religion.
For that reason, I have said later on in the written submissions, this is, in fact, where Union Steamship – I think a still unresolved question comes in. There is this fundamental principle which underlies these various aspects of the Constitution and, therefore, it requires protection generally and not simply in a confined context of political communication. Unless your Honours have any questions I propose to move onto the next point, which is the treaty point, and I hope to be even shorter in relation to that.
It has generally been said that treaties are of no consequence unless enacted into municipal legislation. In my submission, when one has regard to Teoh’s Case [1995] HCA 20; (1994) 183 CLR 273, a decision of this Court, the appropriate principle is really a more confined one, namely that, as was said by Chief Justice Mason and Justice Deane on page 287, it cannot operate as a direct source of individual rights and obligations under the law.
Now, one knows of course that there can be limitations on State legislative power even if an Act, I say generally, does not create obligations or rights. One example is of course the implied freedom of political communication, another is the Kable principle derived from of course the structure in Chapter III. In my submission, what one has in the case here is a piece of legislation which is contrary to the contents of the international covenant, the ICCPR, which has been ratified by the Executive of Australia.
Significantly, ratification or the act of ratification is said to be not simply an expression to the world at large, but also an expression of intent by the Commonwealth to the people of Australia. The Executive of the Commonwealth acts upon the will of the entirety of the populous, not the interest of the people of the individual States. This principle is recognised also in the ACTV Case in the judgment of the Chief Justice, ACTV being reported in - - -
FRENCH CJ: This is new section 109, is it? Any State law which is inconsistent with a treaty entered into by the Commonwealth is inoperative to the extent of the inconsistency?
MR LANGE: Well, it is not a section 109 point because 109 simply does not cover it, 109 speaks specifically about laws.
FRENCH CJ: I say it is a new section 109 you are proposing?
HAYNE J: Section 109A.
MR LANGE: I would be submitting that it is implied by virtue of the reservation of the treaty-making power under section 61 to the Executive. It was said by the Chief Justice, Chief Justice Mason, in ACTV’s Case that:
representatives who are members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people.
Sorry, I am not sure I gave you the page number, it is 138.
And in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act.
The entering into of a treaty and the ratification is as a direct consequence of the election of the entirety of the Commonwealth and hence also the appointment of the Executive. It is not, we would submit, for the individual States to legislate contrary to will of the entirety of the Commonwealth, the entirety of the people.
GAGELER J: Is Commonwealth legislation invalid if it is inconsistent with the treaty?
MR LANGE: I would say not, your Honour, for the simple reason that again the Commonwealth legislature is the principal expression of the will of the people and therefore it would override an indirect application of that will through the Executive. It only applies to State legislation.....In that context as well, one might also say that, similar to what was stated in Kable’s Case by Justice McHugh, there is a significant risk of undermining the Commonwealth in its executive function by Acts of the State which undermine the very function.
It was said in Kable’s Case that to pass legislation which undermined the values of Chapter III would undermine public confidence in the courts
more generally and, in my submission, for a State to enact legislation which plainly goes against an international obligation entered into by the Commonwealth would have also that effect, namely, to undermine confidence both within the Commonwealth and also externally as to its willingness to abide by its obligations as ratified. Your Honours, those are the submissions I put additionally, unless I can assist any further.
FRENCH CJ: Yes, thank you. Yes, Mr Reynolds.
MR REYNOLDS: If the Court pleases. Your Honours will I hope have a document headed “Plaintiff’s Outline of Submissions” in my client’s case. If I could ask your Honours, it is convenient also to have the document entitled “Plaintiff’s Reply” in the Hawthorne matter - that is number S37 of 2014. If your Honours could have that to hand, if that is convenient.
FRENCH CJ: Yes, Mr Reynolds.
MR REYNOLDS: Thank you, Chief Justice. Your Honours will have inferred from our outline that we propose to confine our submissions to the implied freedom argument. In particular, we do not seek to address your Honours on a separate implied freedom of freedom of association. Your Honours will see from our outline that there are four issues. The first three in sections 2, 3 and 4 are matters going to what is traditionally called the second limb of the Lange test. The final matter is the issue of severance which is also dealt with in our reply document, which I would ask again your Honours to have to hand, at paragraphs 5 to 6.
Given the questions that have fallen from your Honours, it may be convenient, Chief Justice, if I deal with severance first. This issue has been effectively put in play by New South Wales in paragraph 31 of their submissions. Your Honours will see there that “the Defendant”, that is, the State of New South Wales:
contends that, if necessary . . . s 93X may not apply to political communications protected by the implied freedom -
They rely on a passage of Justice McHugh in Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 and the particular paragraphs at pages 109 to 110 and in those paragraphs Justice McHugh - this is in paragraph 110 at page 56 - read down the relevant provision so that, if your Honours go to the end of that paragraph:
except to the extent that it penalised insulting words uttered in discussing or raising matters concerning politics and government in or near public places.
So that is the form of reading down which he adopted. Now, in our submissions in reply we attempt to articulate two difficulties with that and it may be convenient if I deal with the one referred to at paragraph 6 of our reply referred to in paragraph 5.4 of our outline.
The difficulty here essentially is the vagueness of the concept of a political communication covered by the guarantee. Your Honours will see in our reply document at paragraph 6, references to Theophanous where three members of the Court referred inter alia to speech relevant to the development of public opinion, et cetera, and in Hogan v Hinch, your Honour the Chief Justice referred to the range of matters being covered by the guarantee – I am paraphrasing - as being broad and as arguably including social and economic features.
Now, it is of course fairly trite law that for there to be a reading down of the kind for which New South Wales contends that there has to be a clear limitation and we submit that this is a difficult exercise for the Court to embark on, given the width of the terms of the guarantee. If the guarantee, for example, had been confined to what has sometimes been called matters at the core of the freedom, what might for convenience be called purely electoral matters, then one could understand how that might provide a sufficiently clear criterion to enable this exercise to occur. But given that the freedom is both a core, in that sense, and also a periphery of uncertain margin, it is my submission that it is too vague a criterion to permit a reading down of that kind.
The other matter to which we point is raised in paragraph 5 of our reply which is a little more difficult for us because of the fairly strong presumption in the Interpretation Act in favour of a reading down. Mr James has already alluded to this but we submit that there are reasonably clear indicators of what we would call a contrary intention in the legislation. The main one, of course, as Mr James has noted, is the articulation in paragraph – I withdraw that, section 93Y of a highly particularised series of situations to which the legislature has adverted with a superadded requirement of reasonableness.
HAYNE J: Those exceptions proceed from the premise that there is a consorting?
MR REYNOLDS: They do.
HAYNE J: Would not the reading down that you have to confront be a reading down that limited what is a consorting?
MR REYNOLDS: Yes, your Honour.
HAYNE J: What then is the difficulty that is presented that you fasten upon?
MR REYNOLDS: Well, because the legislature has fastened on various matters here which are not to be treated as a form of consorting or to pick up the words that are used, they are to be disregarded. So that implicit in that, at least, perhaps explicit, is that one cannot disregard a form of political communication which would otherwise come within the definition of “consorting”.
The legislature here has adverted to this issue. If your Honours go to footnote 4 of our outline at the bottom of page 3, part of the context, as it were, of the passing of this legislation is that there was an attempt to introduce an amendment. Strictly that would not come within the provisions in the Interpretation Act about resort to extrinsic material, but I mention it by the by in this context.
But we submit that section 93Y in particular manifests a very explicit animadversion on the part of the legislature to, if I may put it more broadly, what is in and what is out and the effect of the specification in the six paragraphs of what is out and particularly in the context of the fact that this implied freedom is no doubt well known to parliamentary draftsman and the fact that it was raised in parliamentary debate, we submit shows an intention of a contrary kind.
GAGELER J: You are seeking to find an intention that is contrary to the operation of section 31 of the Interpretation Act?
MR REYNOLDS: Yes, your Honour.
GAGELER J: Now, is not that intention an intention that is focused on the validity of the legislation in this sense? Section 31 says if you find a bad bit, you take it out, you sever it. The contrary intention for the purposes of section 31 is surely an intention that says it is either all good or all bad. Take all the totality.
MR REYNOLDS: Well, certainly if such an intention is manifest then no reading down would be possible and I concede that it is not as strong a situation as that, but section 31 operates or creates – reverses the presumption that previously operated, as your Honour will recall, and we submit that when one looks to the detail of this legislation, particularly 93Y, that it shows implicitly - I cannot properly take it any higher than that - an intention that its purview is, as it were, not to be read down otherwise than in respect of these matters. Now, it is not the stronger of the two submissions and I cannot really put it any higher than that.
HAYNE J: But the only principle that can be engaged is, is it not, the Banking Case principle, namely, it is all in or it is all out? Is there some intermediate position?
MR REYNOLDS: I do not think so, your Honour.
HAYNE J: As your submissions point out, in Pape 238 CLR 1 at 93, paragraph 248, Justices Gummow, Crennan and Bell gathered the severance – or the reading down provisions cases and principles.
MR REYNOLDS: Yes. The stronger - - -
CRENNAN J: Are you suggesting, Mr Reynolds, by the way, just on section 93Y, that if a person’s defence to a charge of consorting was that they were at an industrial protest that that defence could not be run? This is a question about the exhaustive or non-exhaustive nature of section 93Y.
MR REYNOLDS: I do not think it comes within (a) to (f), so, yes, your Honour, I am. You cannot say, well, that is a form of political speech therefore I have a defence, or put more accurately, it is not caught within the purview of the legislation because it is read down.
FRENCH CJ: Has the application of the term “consort” in the statutory context to association for political purposes ever been considered in any case?
MR REYNOLDS: Not that I am aware of, your Honour. There have been, I think as Mr James said, attempts to read down what is otherwise - - -
FRENCH CJ: I am not just talking about reading down, I am just asking about the traditional content of that term.
MR REYNOLDS: I am sorry, your Honour. Not so much reading down, but trying to place limits on what is otherwise the prima facie notion or the meaning of “consorting”. I am not aware of it, your Honour, and I would expect to have discovered that if it did exist.
GAGELER J: Could I take you back to your other point? This is about the vagueness of the concept. Is that a point that really goes to the ability to read down as an exercise of judicial power in the interpretation of the statute or if it is not that where do you get this requirement for a clear limitation?
MR REYNOLDS: Well, we have referred to Victoria v The Commonwealth and also to another case in footnote 6.
GAGELER J: The actual reading down in Victoria v The Commonwealth was a pretty vague reading down, you might recall.
MR REYNOLDS: I do not, actually, but at any rate I - - -
GAGELER J: The Act did not apply to State employees at the higher levels of government, whatever that meant, and it was not spelt out.
MR REYNOLDS: We have, rightly or wrongly, taken it as a fairly tried proposition that one needs to enunciate a clear limitation and looked at from the point of view of the citizen we would submit that it is fairly clearly on our side of the line. Exactly how clear is clear, I cannot say, but we say that where you have got particularly the operation of the periphery or penumbra of the guarantee, that necessarily there is going to be such a degree of vagueness, particularly at the margin, that this exercise is not going to be possible. The citizen is not going to be able to say if it is relevant, what is in and what is out, and that is important, we submit.
That is all I was planning on saying on severance which, as I say, I am dealing with first up because your Honours have raised it fairly prominently. If your Honours go back to our outline, the next matter I am going to deal with is number 2, that is, under our heading “Statutory purpose: not promoted by s 93X”, and your Honours will recall that New South Wales has delineated very clearly what the legislative purpose is, namely, one of preventing or impeding criminal conduct.
As we note at paragraph 2.2, we do not dispute that that is the statutory purpose, that it is legitimate and it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. What we do, however, raise as a relevant matter is whether the relevant nexus or connection between the legislation and that purpose has been demonstrated.
Your Honours will recall dealing with this, of course, very recently in the Unions NSW Case which I think - your Honours, the reference is (2013) 88 ALJR 227 and is not yet in the Commonwealth Law Reports, and this issue of connection is dealt with at paragraphs [51] and [60]. Can I briefly, very briefly, stress a number of matters there? At paragraph [51] - - -
FRENCH CJ: Sorry, page number, please, Mr Reynolds.
MR REYNOLDS: I am sorry, page 238. The section – this is the middle of paragraph [51]:
does nothing calculated –
Interesting word in that context, probably meaning likely –
to promote the achievement of those legitimate purposes.
Paragraph [53] at the bottom of the column talks about a connection, paragraph [56] in the second line refers to speculation and finally at paragraph [60] there is reference to connection to and furtherance of the corruption purposes of the relevant Act.
Now, going back to paragraph [51], the words “does nothing calculated to promote the achievement of those legitimate purposes” are words we would seek to pick up. Our submissions are really twofold. We read that as meaning does nothing likely to promote. So that is really the first proposition that because it does nothing likely to promote the achievement of the relevant legislative purposes, then it is invalid.
We have put an alternative submission that probably is not subject to the ratio of Unions NSW and it is this – and you will see this from paragraph 2.7 of our notes – that even if it does further the relevant purpose, or purposes, to some degree it does so so slightly that this becomes an important integer in the second limb analysis which may be fairly close to the formulation in paragraph [51] of Unions NSW.
Now, just as New South Wales neatly articulates the relevant legislative purpose they also, particularly at paragraph [33], specify, if you like, the chain of causation, that is, how crime prevention or impeding crime is said to be furthered by the legislation. We have made an attempt at paragraph 2.4 of our outline to summarise that down into a couple of propositions, the first being that the legislation deters the development of associations between both (i) non-criminals and criminals, and (ii) criminals and other criminals.
Just pausing there, we would agree, at least in a situation where warnings have been given, that the legislation might well deter associations of that kind to some extent. The only rider we would place on that is that it would be far more likely to affect forms of public association rather than private association. That really arises as a matter of common sense bearing in mind modern modes of communication.
If one looks at the way this legislation operates and one views it as a person who is a convicted offender, it will not be that difficult – at least in private – to evade police monitoring, first of all, because if there is a relevant meeting, or consorting if you like, in a private place then it is going to be very difficult for the police to prove. Likewise, if one looks at the other most prevalent forms of communication, namely mobile phones and emails it is also, given that these things do not have to be in someone’s name, going to be reasonably easy to evade police monitoring, but subject only to that - - -
HAYNE J: What is the complaint, Mr Reynolds, that these are the asserted reasons; these reasons are likely to prove ineffective, these reasons lead to an overly broad reach for the legislation? What is the character that you then assign in consequence of this analysis?
MR REYNOLDS: Well, I am seeking to first of all articulate for your Honours how New South Wales says that the purpose of crime prevention or impeding crime is furthered by the legislation. I then break that down into two steps and we say we have done that fairly in paragraph 2.4. The first step is in paragraph 2.4(a) and I have largely conceded the first step in my learned friend, Mr Sexton’s argument, namely that the legislation will tend to deter the development of associations as we have specified to some extent, subject only to the one rider I just indicated.
The difficulties with the second step are referred to in paragraph (b) and that is that the deterrence of these associations prevents crime because associations of that kind first of all might expose a person to temptation to engage in crime and secondly, might lead a person into involvement in criminal activity. Now, we have said at paragraph 2.6 that that connection there articulated between, on the one hand, deterring of such associations, on the other hand, the prevention or impeding of crime is speculative, dependent on remote possibilities, indirect and insubstantial.
KIEFEL J: Are you really saying though that it is not so much connection but whether the law would be effective?
MR REYNOLDS: No, it is more than whether it would be effective. It is more that even if one can deter associations at that very early stage at which the legislation bites, whether realistically there is any likely prospect of deterring crime particularly when one looks at the way this legislation operates. It bites down, as New South Wales says in one of their paragraphs very early, that is at the point when an association is embryonic it may only be two relevant acts, it applies to any person, including people that do not have any convictions and even insofar as it deals with a person with a conviction, one conviction is enough which may be very old and is not necessarily a very serious offence, and it will bite down necessarily on many very innocent associations and well before the formation of any criminal purpose.
So, I cannot deny that there would be some associations between some persons, for example, recidivists with long records where say two criminals, where the deterrence of their association might well prevent crime but I submit when one looks at the overall operation of this Act and everyone that is caught, and all the types of associations that are caught, it is unlikely to be a significant possibility in most cases that the deterrence of the association will in fact prevent crime.
FRENCH CJ: That says it casts a wider net than it has to in order to achieve the effect asserted.
MR REYNOLDS: Yes. If – and we are going to come to this later on where I posit some less restrictive alternatives, when one looks at this wide range of associations that are caught, even though necessarily, and I have to concede this, there would be some associations, the deterrence of which might well prevent crime, overall there is not the requisite connection between the legislation and the prevention of crime. New South Wales also talk about impeding crime. If by that is meant stopping it or interfering where it is already in progress we submit there is even less prospect of deterrence of such associations having that effect.
BELL J: Is it beyond the power of the New South Wales Parliament to provide in legislation dealing with the grant of bail that the person granting bail may impose conditions limiting places to which a person may go or persons with whom the bailed person might associate?
MR REYNOLDS: Probably not, your Honour. I mean, there is a much closer nexus there.
BELL J: Why is it not a speculative nexus?
MR REYNOLDS: Well, can I say it may be, but that, of course, is much closer, as your Honour well knows, to a situation where crime has been committed and there may be concern in that immediate aftermath about what someone may or may not do, but of course I do not need to go quite that far in order to make good the argument.
KIEFEL J: But the connection of which you speak, having regard to the extended reach or unnecessary reach of the laws, is really a connection to people who may not be involved in crime. That is your point, is it not?
MR REYNOLDS: That is the clearest and most simple aspect of it, yes, your Honour. It is a bit broader than that. Can I move on then to look at what we call, in our third heading, reasonability practicable, less restrictive alternatives? Can I trouble your Honours briefly to refresh your recollection of a couple of paragraphs in Unions NSW again, (2013) 88 ALJR 227? The particular paragraphs are [44] and [45]. Five of your Honours referred in paragraph [44] to the second limb and towards the end of the paragraph say that:
The inquiry whether a statutory provision is proportionate in the means it employs to achieve its object may involve consideration of whether there are alternative, reasonably practicable and less restrictive means of doing so -
with a reference and then:
It is the defendant’s contention that s 96D meets the condition of proportionality. It submits that the test of proportionality is to be understood as giving legislatures within the federation “a margin of choice as to how a legitimate end may be achieved”. It is already been observed in these reasons –
I will come back to that –
that this view has not garnered the support of a majority of this Court and that the question has not been the subject of substantial argument. Nor was it in this case.
They are referring there, as the footnote notes, to paragraph [34]. If your Honours go back to page 235, and there is reference there to “margin of appreciation” and not being “accepted by a majority of this Court”.
Now, I think that is the latest word on this issue of reasonably practicable, less restrictive alternatives. By less restrictive, of course, one means less restrictive of the freedom. We submit, as we have put at paragraph 3.2 of our outline, that it is not difficult to posit alternative forms of consorting laws which do two things: first of all, are less restrictive of the freedom and, secondly, do more to advance the relevant statutory purposes and as a result also are less restrictive of the freedom in the legislation which we have.
We have bitten the bullet at paragraph 3.3 and attempted to articulate – and I hope your Honours will think, clearly – how due allowance might be given to political discussion. One is by the provision of a reasonable excuse defence which as footnote 1 in our document notes has a respectable legislative provenance. Secondly, and there was an example of this in the legislation in the City of Adelaide Case or the Corneloup Case which we have footnoted at footnote 2, if there was a defence – and it may be more than one – which related to core political discussion – and a good example would be the distribution of political leaflets and your Honours see at (iii) an alternative defence which we have also referred to which necessarily would permit many forms of political discussion.
We have said at paragraph 3.4 that there are also ways of both reducing the effect of the legislation on political communication and also tailoring it more closely to the relevant statutory purpose. Your Honours will see there how we have formulated those various possibilities at paragraphs (i) to (iv). If I could just briefly touch on them – convicted offenders only, there is obviously a closer nexus with criminality and a greater likelihood of, we submit, as a matter of common sense, preventing crime if you are talking about consorting with offenders.
Likewise, your Honours will have seen in the discussions of this legislation, while I am on that topic, my friends have referred to an article in the Melbourne University Law Review and one in the New South Wales University of New South Wales Law Journal. I would respectfully commend those to your Honours as fairly scholarly treatments of this area of consorting in the various issues that arise.
But, one of the issues that does arise – we refer to it at (ii) is the issue of what I will call shorthand stale convictions. Someone might have a conviction even for an indictable offence that is 30 or 40 years ago and we raise the issue of whether or not the conviction should be more recent. Likewise, if someone has more than one conviction, that is, a multiple conviction, then he or she is more likely to be characterised as a recidivist and therefore more likely, we submit, in the future to engage in crime.
The only other one I need mention is (iv) which also has a respectable provenance because it talks there about whether the police should have to form the view that it was reasonably necessary to give an official warning – sorry, an official warning to prevent crime. Now, again, that would necessarily tailor the legislation more closely to the relevant legislative purpose and, to that extent, would also confine somewhat the effect on political speech. So they are our tuppence worth on alternatives.
The argument of principle that is put against us by I think all my friends on my right is that they pick up a paragraph in the decision in Monis (2013) 249 CLR 92. Because I have only just discovered that this is in the Commonwealth Law Reports, I will use the paragraph numbers rather than the page numbers. At paragraph [347], your Honours Justices Crennan, Kiefel and Bell touched on this issue of reasonably practicable alternatives.
HAYNE J: Page 214.
MR REYNOLDS: Yes, page 408 if some of your Honours are on the Australian Law Journal Reports, paragraph [347]. The bit all my friends like is about the last eight lines of the paragraph which says that:
Given the proper role of the courts in assessing legislation for validity, such a conclusion would only be reached where the alternative means were obvious and compelling, as was the Tasmanian legislation in Betfair -
Pty Ltd v Western Australia which is footnoted there, giving references to Betfair – this is footnote 390 at paragraph [110] and the NEDCO Case at page 608. I will be coming back to those references in a moment.
BELL J: It might just be noted before you do that that paragraph is referred to in the joint reasons in Unions - - -
MR REYNOLDS: It is.
BELL J: - - - to which you took us a few moments ago at page 237, paragraph [44] in the context of the inquiry respecting proportionality being directed to restrictive measures.
MR REYNOLDS: Your Honour, I hope I have been candid in already noticing that.
BELL J: There was passing reference to the fact of a note, but perhaps not to the paragraph number, Mr Reynolds.
MR REYNOLDS: I am grateful to your Honour because the first point that I wanted to make is by reference to paragraphs [44] and [45] of the Unions NSW decision and, if I may say so, with respect, what is important, not only is that the paragraph 347 is footnoted but that there is no reference to this superadded requirement in the articulation of the latter half of paragraph [44], no express rejection of it either. But we would submit that the emphasis in paragraph [45], particularly picking up paragraph [34], is at a minimum redolent of some concern about introducing questions of margin, which is what notions of “obvious” and “compelling” do.
So your Honour would say to me that this is to some extent neutral from my point of view, and I agree it is to some extent, but it is also – I suppose I say the passage in Monis does not sit particularly well with the tenor of the way this issue is there referred to at those paragraphs.
BELL J: The matter was dealt with in Unions in response to a submission respecting margin of appreciation which, as you would appreciate, has some other connotations and these things are to be read in context and we were there dealing with legislation dealing directly with the electoral process.
MR REYNOLDS: Yes. Well, your Honour, I am going to attempt to examine this in a little more detail. Your Honour will know that I mean it in the nicest possible way when I respectfully remind your Honour that where the Court is equally divided in opinion, as they were in Monis, that even where – if your Honour will forgive me for saying so, your Honour was on the winning team – your reasoning does not constitute a binding precedent.
That was noticed in an analogous context, perhaps most recently in the decision of Re Wakim - I will just give your Honours the reference - [1999] HCA 27; (1999) 198 CLR 511 at paragraph 100. It may be a rather trite proposition, but I remind your Honours of it, but if I can go back to the decision in Monis of the relevant paragraph, which is [347], what I – your Honours there refer in the footnote, this is footnote 390, to two decisions and I would like to take your Honours to those. The first is Betfair (2008) 234 CLR 4l8 at paragraph 110.
FRENCH CJ: Page number, please?
MR REYNOLDS: Page 479, I am sorry, your Honour.
HAYNE J: With a view to demonstrating what, the proposition of immediate relevance?
MR REYNOLDS: The proposition that this paragraph, in my respectful submission, does not support the proposition for which it appears to have been cited. I make the same submission in relation to what I have called the NEDCO Case, that is North Eastern Dairy Co Ltd v Dairy Industry Authority (NSW) [1975] HCA 45; (1975) 134 CLR 559 at 608. Now, I am not intending to take your Honours through those pages. I will leave it to my learned friends perhaps to suggest why they do support that reasoning.
Perhaps more importantly there are some other references, particularly if I can take your Honours back to the Lange decision, just the one passage, which is (1997) 189 CLR. The relevant passage is at page 568 at about point 2 where their Honours refer back to the ACTV Case and note that:
a majority of this Court held that a law seriously impeding discussion during the course of a federal election was invalid because there were other less drastic means by which the objectives of the law could be achieved.
There is a similar reference in the Nationwide Case which is actually not in the list but your Honours have volume 177 of the Commonwealth Law Reports - Nationwide News v Wills [1992] HCA 46; (1991) 177 CLR 1 and at page 51 at about point 7 on the page, Justice Brennan refers to material factors as including:
the practicability of protection by a less severe curtailment of the freedom -
We submit that the existence of alternative reasonably practical alternatives is picking up on the statement in Unions NSW, a factor which the Court may take into account and we submit that it is part of the mix, part of a multiplicity of factors that can be taken into account on the second limb but there is no superadded requirement that the alternative be obvious and compelling.
It is, I submit, with respect, appropriate to keep a factor like this or make it protean to a degree. There may be cases where, as part of the assessment of the second limb, your Honours, in a particular context, may only have resort or look to alternative means if they do constitute means which are obvious and compelling. One example may be emergency wartime legislation. On the other hand, we submit that the relevant factor should not be so confined, although the more obvious and compelling the alternative, the more persuasive necessarily the argument will be.
BELL J: Would it depend to some degree upon whether the law was, as in ACTV and Unions, a law directed to the freedom itself, as distinct from a law of general application which is capable of bearing on the freedom, in which case there may be perhaps rather more weight given to the idea that there would need to be - - -
MR REYNOLDS: Your Honour, with respect, raises what I respectfully submit is a very important matter and that is that in this context particularly, and that is the distinction between laws which drive at the core of the freedom, particularly which focus on electoral matters and matters particularly as one moves more away from the cord of the periphery of the freedom and that is part of what I should have said and prompted by your Honour I do say which is that given that freedom does operate both at a core level and also at peripheral levels that is a reason why, your Honours, I submit would want to keep this relevant factor a little more protean.
If I can respond to another aspect of your Honour’s question is this notion of incidental effect which I am going to move to, if I may, right now and that is under the heading of the extended burden on the political communication. If your Honours go back to our outline, you will see this is section 4 and it is trite that the extent of the burden on political communication is relevantly the second limb.
What we have attempted to do, Mr Hume and I, is to summarise the extent of the burden in a series of roman numbers in paragraph 4.2. I should explain in relation to the paragraphs (i) and (ii) that we refer to all
modes of communication we mean – those, at least, which amount to consorting. Now, I was not proposing to do anything other than rely on that summary as to the extent of the burden but the principal point, at least, of law which I need to deal with in this context we refer to at paragraph 4.3.
That is because New South Wales at paragraph 41 – if I can take your Honours just very briefly to that paragraph and Chief Justice I will not be very much longer. At paragraph 41, the second sentence there is that a burden upon communication is more readily seen to satisfy the second limb of Lange if the law, incidentally – and that was your Honour Justice Bell’s question – if the law incidentally restricts political communication rather than where it regulates communications which are inherently political or a necessary ingredient of political communication. Not surprisingly, those statements there referred to are relied against us.
Now, paragraph 4.3 we say, I hope neatly, five things about that. The first is that we concede that this is legislation but is not legislation which has the purpose of restricting political communications. But we do in (ii) make the point that a necessary ingredient of political communication is some ability to communicate and that this legislation prevents any deliberate communication, I should say at least communication amounting to consorting, between relevant individuals and that a law which prohibits all communication, or effectively all communication amounting to consorting between persons, should not be in a better position than one which prohibits some political communication.
We submit that even if the impact is incidental, as the cases say, that is a relevant factor rather than a matter decisive of the question of validity and we conclude by noting or submitting that it is more useful in a second limb analysis to focus on the precise effect of the law on political communication, rather than engaging in an exercise of whether or not the particular effect on political communication is incidental.
HAYNE J: You use the expression “communication amounting to consorting”. Do you proffer any construction of consorting that would depart relevantly from consorting amounting to an association or keeping company with another, that is, sought out and accepted?
MR REYNOLDS: No, and the authorities are conveniently contained at paragraph 10 of my learned friend, the Solicitor-General for South Australia’s submissions. I believe that – I have not checked this but any other construction would have to confront the effect of the decision of this Court in Johanson v Dixon. If the Court pleases, those are my submissions.
FRENCH CJ: Thank you, Mr Reynolds. Yes, Mr Lowe.
MR LOWE: Your Honours, on behalf of the plaintiff Forster, we have filed an outline of oral submissions. Might I just say this? Given some of the submissions of the defendant and interveners, it may be thought that it is implicit from some of the arguments advanced that people who are convicted offenders and those subject to section 93X warnings – could say habitually consort with convicted offenders – that their speech is somehow less worthy of protection than otherwise would be the case.
For those who have been issued warnings and for those who have been convicted offenders who are subject to section 93X rigours, one could imagine that it would be a hot topic of conversation about whether this law is valid or not and they would like to agitate in relation to that, but if they fall under the ambit of section 93X they cannot communicate at all and I will discuss that.
It is because some of the issues that have been raised through the arguments today and also from the written submissions filed that it is important to start with the jurisprudence of the Court on freedom of political and government communication. They are not personal rights, they are not absolute rights. They are negative in the scope of their operation. They limit legislative power. It provides a fetter – the implied freedom provides a fetter on capricious or arbitrary exercise of powers - of legislative power. As the Chief Justice Gleeson in Coleman indicated, the freedom trumps federal, State and territorial powers when they conflict with the freedom.
Such a conflict arises where the power is so framed that it impairs, or tends to impair the freedom by impermissibly burdening the communications on political or government matters, again, the Chief Justice Gleeson in Coleman at paragraph 91. We say, or submit, that the freedom is a counterbalance, a necessary and vital one at that, against the exercise of legislative power and the trammelling of what many in society perceive to be fundamental common law rights. In our written submissions at paragraph 11 - - -
FRENCH CJ: Sorry, the offence created by the provision is conditioned upon an official warning - - -
MR LOWE: Yes.
FRENCH CJ: - - - being given in relation to each of the convicted offenders. Is there any constraint upon the purposes for which such an official warning could be given? Could an official warning be given to prevent people getting together to talk about reforming this law?
MR LOWE: Yes, presumably, because it depends if what we are relying on is the goodwill of police officers. There is no fetter on their ability to give a warning providing the preconditions are met.
FRENCH CJ: So, you would say that if an official warning was given with a view to stop people associating for the purpose of discussing a change in the law that would be within the scope and purposes of provisions?
MR LOWE: Well, that would be one caught unexpectedly by the provisions, but whether it would be so overtly stated that that was their purpose - - -
FRENCH CJ: Well, there may be matters of practical – I am just putting the question about the scope of the power.
MR LOWE: Indeed, and the scope of the power I will address your Honours shortly about, but, yes, the breadth of the provision is quite extraordinary. We say in our written submissions at paragraph 11 that there are many people in the community who are not electors but who are governed and are affected by the decisions of government.
As part of the extrinsic material filed by the plaintiff in these proceedings is a report prepared by the office of the New South Wales Ombudsman entitled “Consorting Issues Paper”. I do not wish to take your Honours to that document at this stage, but suffice to say the report does indicate that during its first 12 months of operation warnings under section 93X were given to children as young as 10 years old. These children are not electors. They are not yet able to vote but they are subject to the rigours of 93X.
When I address you later about the issue of the true purpose of this legislative provision I ask you to keep in mind who is this 10-year-old consorting with and rhetorically, I say, in answer to that question, in all likelihood it is consorting with other children.
FRENCH CJ: How does that impact upon the question of the implied freedom?
MR LOWE: Well, if children as well as adults have a view about legislation and, of course, if their communications are precluded or prohibited then, yes, it will have an effect on the implied freedom of political communication. So, in accordance with the jurisprudence of this Court, the first constitutional question is the freedom burdened? Your Honour the Chief Justice in Monis quoted Justice Hayne in APLA Ltd v Legal Services Commissioner:
the central question is what the impugned law does –
Your Honour in Monis at paragraph 63 referred to – you must begin by looking at the “legal effect and operation” of the statutory provision. If I could take your Honours to paragraph 63 of Monis 249 CLR 92 at 129, at the very bottom of the page your Honour the Chief Justice refers:
It is therefore a restriction –
and going onto the next page -
which can directly affect content. It places in the hands of the Court, mediated by the emotional reactions of imaginary reasonable persons, a judgment as to whether the content is within or outside the prohibition. It applies without distinction to communication of ideas about government and political matters and any other communication.
Justice Hayne in Monis at 122, paragraph 122, warned political and governmental discourse may take many different forms, and there is no one discourse that is privileged in the marketplace of ideas. The danger is always that the voice of the minority, and here I am referring to everyone who perhaps is caught within section 93X, that is, people not convicted of any indictable offence but who, because they consort, habitually consort with people who do have those convictions, convicted offenders within the meaning of 93X, they are the voice of the minority in one sense.
If I could take your Honours to paragraph 122 of Monis which is at 146, page 146 CLR at halfway down the page, “The very purpose of the freedom” – if I could just take your Honours to that.
The very purpose of the freedom is to permit the expression of unpopular or minority points of view. Adoption of some quantitative test inevitably leads to the reference to the “mainstream” of political discourse. This in turn rapidly merges into, and becomes indistinguishable from, the identification of what is an “orthodox” view held by “right-thinking” members of society. And if the quantity or even permitted nature of political discourse is identified by reference to what most, or most “right-thinking”, members of society would consider appropriate, the voice of the minority will soon be stilled. This is not and cannot be right.
Now, we embrace that proposition as accurate in terms of its application to section 93X and why we say at the end of the day that it is invalid and cannot stand. Justice Hayne’s statement of principle underscores the importance of unpopular, minority or outlier points of view. Such diverse perspectives oftentimes conflicting and sometimes contradictory in nature are a necessary tonic for good health of civil polity and the political discourse which informs it. At paragraph 12 of our submissions - - -
CRENNAN J: Are not these points meant to persuade us of a point which has already been made by Justice Bell, which is that it may be that there are aspects of the policy which are contestable?
MR LOWE: We say so contestable as to be invalid. That is ultimately our primary submission. They cannot stand. The breadth of the provision is so exclusive that it would catch all forms of communication for all periods of time. The giving of a warning once given, can it be retracted? If it can be retracted, why is that not embedded in the provisions?
BELL J: Mr Lowe, the offence is “habitually consorting”, so the circumstance that a person in 2012 is given an official warning and then has no further association with that individual and 30 years later has a coffee with them might be thought unlikely to satisfy the requirements of the offence.
MR LOWE: Yes, I accept that. That gets to the - - -
CRENNAN J: Not least because there might be a question of irrelevant considerations being taken into account.
MR LOWE: Yes, and one would think, in response to your Honours Justices Bell and Crennan, time limits do not form any part of this legislation; not part of any defence under section 93Y.
BELL J: The point that I am raising, which at times the submissions seem to perhaps not given sufficient weight to, is that the essential feature of this offence is satisfaction beyond reasonable doubt that a person has habitually consorted with another and mere satisfaction of the conditions of section 93X(2) does not establish the offence.
MR LOWE: Yes, and I do not wish to go over the previous submissions or arguments that have been advanced in this Court, but at the very minimum, two separate occasions with two people who are convicted offenders. The person who has been given the warning may at the time of meeting or discussing or having any communication with the convicted offender, may not have been aware. All they have to be given is given a warning after having that meeting and having a further meeting or association or communication. We say that that cannot stand with any of the current consorting provisions that are currently in existence in Australia. Section 93X without a shadow of a doubt is the broadest provision on the statute books for habitually consorting.
BELL J: Albeit it in some respects it narrows the field of operation of the consorting provision which it replaced.
MR LOWE: There were inbuilt advantages to the previous consorting requirement. A summary matter that could be dealt with had to be initiated proceedings within a set period of time. I have dealt with these – that is the end of the argument about how there might be other less drastic means to approach the legislation and why we ultimately say it is invalid. In essence, what we say is the very breadth of this provision is incompatible with the maintenance and freedom of the communication which is a necessary incident of the incidence of the system of representative government prescribed by the Constitution.
Now, the plaintiff contends – I should take your Honours to something we say is significant, or part of the argument. The fact that the burden is indirect does not mean that the first question must be answered in the negative and The Age Company Ltd v Liu is a – if we could take your Honours to that case. So The Age Company Ltd v Liu [2013] NSWCA 26; (2013) 82 NSWLR 268, a decision of the Chief Justice Bathurst together with whom Justices of Appeal Beazley and McColl were in agreement and it is at paragraph 93, page 289. It is the second line of paragraph 93:
the fact that the burden is indirect does not mean that the first question must be answered in the negative. Although it has been stated on a number of occasions that laws which directly inhibit government or political communications will be much more difficult to justify than laws which do so indirectly –
I omit the relevant cases referred to and end with this part of the passage:
none of these cases provide support for the proposition that an indirect burden can never infringe the constitutional requirement.
In relation to the second question of Lange, his Honour at paragraph 96(c) which is at page 290 of that law report:
The requirement that the restriction is reasonably appropriate and adapted articulated in Lange does not mean it must be unavoidable or essential. Rather it involves close scrutiny, congruent with a search for compelling justification -
The plaintiff contends that three issues arise from any attempt to identify the true purpose of section 93X. First, if the supposed object of the offence provision is to prevent crime, why is it then that complete prohibition is necessary to achieve its objects? A similar issue arose in Betfair where this Court held that legislation failed to address problems with integrity of horse racing in WA because complete prohibition was not necessary to achieve its objects.
The plaintiff says supposed object of the offence provision for it does not conceive that the primary purpose of that provision is crime control. We say that in our written submissions at 20. The offence provision does not penalise criminal conduct per se, just the act of consorting in the prescribed sense in breach of a warning.
FRENCH CJ: Habitual consorting as Justice Bell pointed out.
MR LOWE: Yes, absolutely. Secondly, the logical flaw in the design of section 93X is that it is predicated on a flawed process of inferential reasoning post hoc ergo propter hoc. Justice Hayne appears to have been very aware of the flaw – of that particular flaw in his reasons for judgment in Totani at paragraph 234 and if I could take your Honours to that particular paragraph, 234. It is at page 92 – it is the relevant part of paragraph 234 at paragraph 92 and it is about point 10. It is in a different context but the issues raised by this particular paragraph we say are on all fours with the post hoc problem:
the identification of an organisation as including, even being constituted by, persons who “associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity” -
The section is referred to -
does not entail that every individual who falls within the extended definition of “member” in relation to that organisation necessarily has those purposes or characteristics. And it does not entail that every individual who falls within the definition of “member” has committed, or will commit, any crime.
So we say that embedded in 93X, given its breadth, is a major problem based on a very flawed process of inferential reasoning which goes to, because of its breadth, the whole validity of the legislation. Thirdly, the true purpose we say can be divined from the implementation of section 93X in practice. The NSW Ombudsman has issued a consorting issues paper dated November 2013 relating to a review undertaken of the use of the consorting provisions by NSW Police.
The plaintiff contends, and it is found at paragraph 20 of our submissions, the issue of - the plaintiff does not concede or accept the purpose of section 93X is to “control crime”. The process of inferential reasoning – and I will not labour that point - the question of purpose in this context is one of substance to be determined from the surrounding circumstances and by reflecting on how the statutory provision is implemented in practice.
Such reflection reveals that the provision is one primarily but not exclusively involved with social control aimed at marginalized members of society. Here I will take your Honours to the terms of the consorting issues paper, Chapter 6 which is found at the beginning of page 28, starting with the first paragraph, the second line:
A number of concerns have been raised regarding the potential for use of the consorting provisions to disproportionately impact on disadvantaged and vulnerable - - -
FRENCH CJ: Now, does this go any further than the proposition based upon the construction of the section for which you contend that it casts a net far wider than it needs to in order to meet the asserted purpose.
MR LOWE: That is right and in appropriately - - -
FRENCH CJ: Why do you need to go to these examples?
MR LOWE: In any event, the issue we say is that a significant percentage or proportion of society in New South Wales do not constitute organised crime but the broad net of this section captures many disadvantaged - homeless people, children as young as 10, all of those are expressed in our submissions, together with Aboriginals who form close to over a third of all individuals given a warning under section 93X.
So the second inquiry under the second limb is whether there are alternative, reasonably practicable and less restrictive means. On the one hand, it has been said the question is not whether the impugned provision has established the most desirable or least burdensome regime to carry out legitimate ends.
I think Justice Keane in Unions NSW talks about a margin of choice as to how the legislature enjoys a margin of choice as to how a legitimate end may be achieved. We say in response to this that the margin of choice is not a choice to do what the legislature pleases. There is a limitation in hearing in the concept of margin of choice, one that recognises the importance of the free flow of political and governmental communication within society.
There have been a number of aspects associated with the jurisprudence of the implied freedom where Justice Hayne in Monis at paragraphs 136 to 138 refers to Justice McHugh’s compound question, or conception, I should say, under the second limb, the means and the ends issue. Also Justice Hayne has in Monis referred to how this Court, whether it is - the comparison is required “to balance incommensurables”. What we say in response is the manner of achieving the end as well as the end itself which must be “compatible with the . . . constitutionally prescribed system of representative and responsible government”. This is found in Coleman at paragraph 93.
This brings us to the issue of whether there are less drastic means which the objectives of the law could be achieved. Justice Kiefel raised the issue of the effectiveness of section 93X. Previous - we say in response that the previous consorting provision suffered from.....They largely were ineffective and they were not largely prosecuted. So the issue of prevention of further crimes begs the question: one, if the meeting of two individuals, the subject of section 93X warnings and being convicted offenders has no criminal purpose, then the meeting is not a deterrent at all. If you posit part of the offence provisions is saying that preventing crime by those harbouring a criminal purpose, then probably we say that section 93X will not be effective because you cannot read into section 93X such a prohibited purpose.
Now, I have in the written submissions indicated that the superadded requirement, as it has been called in this Court, of obvious and compelling - I refer to the written submissions, I rely on those. We say that the references of North Eastern Dairy Co v Dairy Industry Authority (NSW) and Betfair, the Western Australian case, do not justify a finding, a superadded requirement of obvious and compelling, and I will not bore you with that any further.
Now, the plaintiff in its written reply to the submissions of the interveners raises the breadth of the legislation and the unfettered nature of the discretion conferred on police as relevant to both invalidity under the first limb of Lange but also to why section 93X is invalid under both the first and second inquiries under the second limb. For those reasons articulated in that reply we contend that the impact on the freedom is substantial.
The question of less dramatic means – the Chief Justice French raised the issue of jurisdictional review of warnings. That is found at paragraph – or addressed, I should say – at paragraph 7.3.4 of the consorting issues paper. We embrace the proposition found there – or teased out there – that a warning itself would not be susceptible to judicial
review and it would be only when you have been found guilty of a breach of section 93X that there could be any sort of permissible review. Many of the issues regarding the drastic impact of section 93X in relation to the use of that provision – as we say, it is about the disadvantaged, vulnerable groups – are in the consorting issues paper.
HAYNE J: Just to go back to that point about whether or not there could be review, even if you are right to say there could not be review, the validity of the warning, surely, could be attacked in the course of the prosecution.
MR LOWE: Yes, but, perhaps, too late.
HAYNE J: Well, if it intercepts conviction.
MR LOWE: Yes, it does. But for those people who have been given a warning, should they not have some sort of judicial review? Should that not be embedded in the legislation as a less drastic means of achieving legislative end? The breadth of the provision is relevant to the issue of whether less drastic means exist. We say that there is a catch, or net, of people caught by the provision. That is at paragraph 5.1.3 of the consorting issues paper.
We also rely on appendix 3 of that particular paper where other State’s consorting provisions have the defence of reasonable excuse. We also say the restrictions on the offence of consorting in other jurisdictions relates to categories of offenders. That is found at the consorting issues paper, 5.3.1 and 5.3.2. Significantly, under Western Australian and Northern Territory legislation, only people who have been convicted of serious criminal offences can be charged with consorting and that is 5.3.3 of the report.
We say all of these particular matters evince a less drastic means of achieving legislative end. So what we say in summation is these instances manifest the existence of less drastic means being available by which the objects of law could be achieved, then we say in consequence section 93X must be invalid as the section effectively burdens a freedom of political and government communication. In terms of the Banking Case, yes, it is all in or all out as far as this particular defence provision is concerned. Unless I can help your Honours further.
FRENCH CJ: Yes, thank you, Mr Lowe. Yes, Mr Walker.
MR WALKER: May it please your Honours. In light of what has fallen out between my friends for the plaintiffs and the Bench, may I focus on what we wish to address on as amicus? Your Honours appreciate that it is in particular the specified provisions of the International Covenant on Civil and Political Rights which is the mandate of our client to intervene or to be heard as amicus concerning.
On the merits of this case which are not within our remit as amicus, could we draw to attention that it did not start, as it were, with the ICCPR coming into force for Australia which was November 1980? It is of some moment then to observe the way in which an argument about statutory interpretation was addressed, albeit briskly by Justice Mason in Johanson v Dixon some 18 months beforehand and a canon of interpretation in particular that you see recognised and dealt with at 143 CLR 384 to 385, that well-known, if not always very powerful, canon whereby the party resisting a particular reading draws to attention the harshness or severity of the consequences were the reading in question to be adopted.
Sometimes, indeed one might think from looking at the authorities, nearly always in the face of such an argument, the words are plain enough to achieve the severity – harshness or severity not being in themselves of course any mark of invalidity. But it is significant in relation to the reading of the provisions in question in Johanson v Dixon, a case about statutory interpretation not validity, that the argument that the effect on one view of the argument would be to ostracise a person, cutting him off from any form of friendship, was recognised by his Honour.
Now, it is not dealt with as an argument that is to be spurned for some integral or intrinsic failure as an argument. It was dealt with on the merits. Against that history and in light of what has fallen out this morning we should, for the Commission, recognise that there is perhaps excessive pessimism in some of the premises upon which our written argument has been presented. May I adjust it and abbreviate it accordingly?
The importance, in particular, of the freedom of association to which we have drawn attention, contained in Article 22 and binding Australia or parts of Australia, is something which, in our submission, first of all bears recognition as being couched in terms which plainly relate, a neutral expression at the moment, plainly relate to other rights which are found in the same treaty.
In particular, and not exhaustively, Articles 19, the right to hold opinions without interference; Article 21, the right of peaceful assembly and other rights which perhaps culminate, in one sense, in Article 26, equality before the law, leaving aside the rights for minorities such as Article 27, those are rights to which Australia is bound by way of municipal recognition and honouring as a matter of international obligation.
We differ, as your Honours have seen, in our written submission from one of the arguments for one of the plaintiffs. We make it crystal clear Australia has legislative competence obviously to legislate in breach of international obligation and we have drawn to attention the hitherto unchallenged law on that proposition.
CRENNAN J: Is this an argument directed to the proposition that one is not confined to the text and structure of the Constitution in order to find an implication?
MR WALKER: Your Honour, our argument, and I stress, we hold back from taking a position ultimately on the merits, our argument has to recognise two stages. I confess our written argument was pessimistic about the first of them and I should spell that out. That is the interpretation.
CRENNAN J: It just seems very close to a rule of law argument which was advanced by Justice Murphy from time to time, in antithesis to the idea that one looked to the text and structure of the Constitution, and you know the antecedence of the argument obviously.
MR WALKER: The short answer is no, that is not what I am going to attempt. There are, I suppose, two steps, if I may compress it, as follows. The first is, of course, to understand what the law means and my confessed pessimism in writing is that of course proper weight has to be given, including against the background of an ordinary canon of interpretation against what I might call startling severity, or we say for the Commission, so as to overregulate a right of or freedom of association, full weight has to be given to the established content of the word “consort” or “consorting”.
The relation of that with association I suppose is likely to be as follows. All consorting is likely to be association – perhaps that is an understatement, perhaps all consorting is a form of association, but manifestly and mercifully not all association is consorting. Now, some dictionaries obviously say that “consorting” has a derogatory meaning, but one has to be careful because the word “consort”, particularly as a noun plainly does not – Prince Albert, for example.
So that no doubt underlies the approach taken in Johanson where the case went off on the proposition that no unlawful purpose was necessary for the offence to be committed whereby the proposed blank answer “I have no unlawful purpose” could not be a good account, something further than the offence itself had to be that which would constitute a good account.
However, when one adds the critical and statutorily undefined epithet “habitual”, the matter is even clearer. Habitual consorting will only be a subspecies of a very much larger genus of association within the meaning of Article 22 of ICCPR. So we accept that if by dint of the word “consort” and the collocation “habitual consort”, both of which have to be regarded before anyone is at peril under this law, we accept that if they are such as to fit within what is recognised in paragraph 2 of Article 22 of ICCPR, then there is no human rights concern and thus no pressure brought on what might be called the reading of the law.
This is a step antecedent to questions of its validity. I remind the Court that in paragraph 2 of Article 22, ordre public, public order - it sounds perhaps a bit different in English from the French - is at the heart of the possible criteria which can justify restrictions being placed on the exercise of the right to freedom of association.
The whole collection of those criteria found in paragraph 2 are, of course, such as to bespeak the great breadth of the right to freedom of association because one would not need any recognition in paragraph 2 of such matters if the freedom of association, in any event, did not comport things which might present risks to, for example, public health or morals or the protection of rights and freedoms of others.
It is a very ample right. The amplitude of the right calls into question in a way that has been decided by the States agreeing to this treaty in paragraph 2, the possibility of appropriate restrictions. There, of course, the word “necessary” is found – necessary in a democratic society in the interests of, et cetera. That calls to mind the warning repeated by Justice Keane in Unions NSW, borrowing from Chief Justice Marshall in McCulloch v Maryland concerning the degrees of necessity not being a matter for the judicial department.
Your Honours, that, of course, needs to be observed in relation to everything the Commission seeks to assist the Court with concerning ICCPR. These are not articles which are drawn with an eye to the separation of powers, least of all Chapter III jurisprudence concerning the role of judges and the role of legislators when it comes to the balances which are inherent in provisions such as paragraph 2 of Article 22. The next - - -
FRENCH CJ: That might be a convenient moment, Mr Walker.
MR WALKER: If it please, your Honour.
AT 12.43 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.14 PM:
FRENCH CJ: Yes, Mr Walker.
MR WALKER: Your Honours, the second matter in relation to the reading of the law, before turning to questions of validity, is of course to notice that subsection (2) of 93X uses as the critical words:
does not habitually consort with convicted offenders unless –
and it may be doubted in context as to whether that could possibly be converted to “does habitually consort if”. It may, given the undefined nature of “habitually”, the undefined, that is not exhaustively defined definition of the word “consort” to which I will come in a moment, and the antecedent law in relation to such legislation, it does seem as if, under subsection (2), in quite a few cases more will be required than what is set out in its paragraphs (a) and (b).
FRENCH CJ: How are you invoking the Convention? Are you putting it as some sort of basis for informing a principle of legality approach to construction of these provisions?
MR WALKER: Yes, and if reading down be not possible – for reasons which I will very briefly put – if it is not possible in a particular case, then to the extent that the Convention rights encompass the Australian constitutional implied restriction on legislative competence with respect to political communication, then there will be validity problems as well.
HAYNE J: Sorry, put that again. It sounded to me as though you had inverted about two propositions, if not more. What is the proposition?
MR WALKER: If, and only if, there cannot be reading down and if the infringements of the Convention rights encompasses what would be an infringement of political communication for the purposes of the Australian implication, which is the restriction on legislative competence to restrict that communication - - -
HAYNE J: Yes. That is an end of the question because it has contravened the constitutional limitation.
MR WALKER: That is all I am putting, your Honour. The Chief Justice asked what part does the Convention play. The Convention plays – first, it should play part of a principle of legality approach to statutory interpretation of a familiar kind and if, and only if, reading down be not possible, then there may for the very reasons that Justice Hayne has pointed out in showing the unremarkable nature of my proposition, then there may be, depending upon satisfaction of the Lange test – in particular, the second limb – questions of validity.
FRENCH CJ: Does the common law give you all you propose in support of the principle of legality?
MR WALKER: Probably not in the sense that the Convention articulates these rights called rights to freedoms in ways that one will not find completely replicated in the common law. There is an obvious similarity, not least because the common law played an important part as a source of both the content and expression of many of the Convention rights but that is as far as it goes. There is a difference and greater specificity of articulation in the Convention, we think, compared with what the common law would reveal, in particular in relation to something which is called this freedom of association.
CRENNAN J: In a case A, about 2005, Lord Bingham of Cornhill traced the article in the Convention in relation to freedom from detention, right back to what he called the libertarian tradition, going back to Magna Carta. Are you talking about that sort of thing?
MR WALKER: Very much so, in terms of its significance as a source. You cannot do that for all of the rights in the Convention, but that is not so much my point. My point is it will not be articulated in the way it is in the Convention.
CRENNAN J: What about the distinction between implication and - - -
MR WALKER: Assumption.
CRENNAN J: - - - assumption?
MR WALKER: That is one of the reasons why, in order for questions of validity to arise at all, it must be by means of the kind of argument about which Justice Hayne was asking me. It is not enough, and we do not say that there is anything in the nature of an assumption which can operate in any way at all, so as to inform questions of validity. It would need to be an implication to do that.
So briefly, in our submission, one then comes to the definition in 93W in order to ascertain a reading down possibility. It is not a solecism but rather clearly deliberate that the statute has as the first word of the definition the very word being defined. In other words, it is clear that the word continues to have what might be called its ordinary contextual meaning. It is not exhaustively and cannot be understood as exhaustively defined by what follows that word.
The word “consort” still has a content which has to be supplied and it can be supplied as is understood by authorities such as Johanson. The point rather is that the force of the definition, including its use of the word “means”, is that an understanding must include means of consorting - that is the expression, by any other means - means of consorting which are forms of communication.
So whatever is imported by using the word to be defined in its own definition, we are told that it extends to communication. Whether there can be consorting which is only constituted by remote communications such as SMS, for example, may require particular facts, but on the face of that definition, if it does, in our submission, there are forms of association affected by the inclusion in the definition of “consort” which are broader than hitherto at common law understood.
CRENNAN J: If you do not resort in some way to the common law, do you not run into the problem of what I will call historical obscurity running an argument of this kind?
MR WALKER: Yes.
CRENNAN J: How do you resolve that for the purposes of the Constitution?
MR WALKER: Your Honour, the fact that it may not be straightforward to understand the law will not be an objection, we accept that. Next, the common law does inform what “consort” means. It does not mean for nefarious purpose; that much is clear from Johanson alone. It does mean some degree of what I will call self-conscious meeting, the seeking and acceptance elements talked about in Johanson in particular, whereby it may be doubted whether what I will call mass electronic communication would ever be consorting.
If I get the nomenclature correct, if I have got 100,000 followers on a Twitter account, it might be doubted whether that is consorting with 100,000 people, let alone each of those 100,000 consorting with me or with each other. But if it is somewhat less massive than that, I presume SMS, which will usually be a one number to one number exercise, might fit precisely what the Parliament had in mind in 93W. There will be no getting away from common law but it will not be exhaustive of the matter. In our submission, one thing is clear. Something in the nature of association will probably always be involved in anything which is consorting.
Now, in the Convention there is a distinction drawn, though plainly a measure of overlap, between assembly and association, as there is between expression of opinion and assembly and association, and all of those three alongside with participation in political affairs, social and political affairs. That overlap, in our submission, rather tends to make good the next point that in particular we have tried to develop in paragraphs 14, 15 and 16 of our written submission, to which I need not take you but to flag where I am, where the relation between the Article 22 right to freedom of association and the implied freedom leading to a restriction of legislation competence under the Australian Constitution can be, in our submission, seen.
If to the extent that there is restriction on association then, in our submission, there will often be restriction or limitation on possibilities of all communication between the people in question. The fact that there might be modes of remote communication which, at common law, may not have accorded with notions of consorting will, in our submission, not matter under this latest iteration of anti-consorting legislation because it has gone out of its way to expand the notion of consorting accordingly. I then, as I say, finally come to 93Y, which - - -
FRENCH CJ: Sorry, I do not understand how the right to freedom of association in the ICCPR plays a role in your argument. You said it stands in relation to the implied freedom, but what does that mean?
MR WALKER: The relation is that a prohibition on association will be a prohibition on communication in most, if - - -
FRENCH CJ: Well, you can say that without reference to the ICCPR.
MR WALKER: No, quite. The role that the Convention right plays is that it is, in our submission, something that has to be borne in mind in interpreting the statute as a matter of ordinary statutory interpretation.
GAGELER J: Where does it get you?
MR WALKER: Ultimately, as an amicus, I do not want to get anywhere in particular, it is a - - -
HAYNE J: Except to justify your right to be here, Mr Walker.
MR WALKER: Quite so.
HAYNE J: Does it go beyond that?
MR WALKER: No, no, your Honour, it does go beyond that. It raises this question. It is of great importance to the Commission that a Convention right be resorted to where appropriate in understanding legislation, working out what it means, as this Court has said. Next, if there cannot be reading down - and I stress “if”, we are not taking a position on whether there can or cannot be, the plaintiffs have put reasons why there might not be - if there cannot be reading down then, in our submission, the restriction or burden on communication, which is inherent in a restriction or prohibition of association, raises a question about validity insofar as the provisions go so far as to encompass a restriction on political communication. That is the extent of where we want to go, no further than that.
HAYNE J: You said that there should be resort to the covenant in connection with statutory construction.
MR WALKER: Yes, your Honour.
HAYNE J: Do you advance any proposition broader than the - I thought accepted - proposition that we construe our statutes at least as prima facie not inconsistent with international obligations assumed by this country?
MR WALKER: That is the whole foundation of our position; yes, your Honour.
HAYNE J: And no further?
MR WALKER: One further step we say is if there cannot be reading down, then the meaning revealed by that form of interpretation may well produce – it is for the plaintiffs to make this good in this case – may well produce legislation which infringes the Australian implied freedom.
GAGELER J: What do you mean by, if there cannot be reading down? Are you speaking of constitutional reading down – severance in accordance with section 31 of the Interpretation Act?
MR WALKER: Both of those, both of those.
GAGELER J: But only those?
MR WALKER: Yes, that is all. That is all, because reading in the light of a Convention right is not a reading down, at least as we are using that expression. It is simply an ordinary approach to interpretation informed by one of Australia’s international obligations; that is all. If reading down in the sense that your Honour has put to me be not possible because, for example, the line between validity and invalidity is located by more of a legislative than judicial exercise then, in our submission, that statute will be invalid. That is all we wish to put about the question of invalidity. It only
arises if there cannot be reading down because, for example, as the plaintiffs have put it in this case, the way in which one would express by way of an addition to a so-called defence that which will not be criminalised but will involve political communication, may present multiple possibilities and the choice of those is legislative rather than judicial.
FRENCH CJ: I understand you are not putting yourself in the plaintiff’s shoes.
MR WALKER: No.
FRENCH CJ: So does that mean we can disregard paragraph 6 through to 11 of the outline?
MR WALKER: It is not so much disregard them, your Honour, as not taking the position of the final outcome which, as I say, was informed by a view of the statute which has been more pessimistic about the way in which the interpretation can proceed than we should have. May it please your Honours?
FRENCH CJ: The Solicitor-General for New South Wales.
MR SEXTON: If the Court pleases. Your Honours, I was going to deal with the first two items on our outline of argument, the construction of section 93X and the second limb of Lange, and my learned friend, Dr Renwick, is going to deal with the remaining three items.
Can I just raise one matter before I come to the construction of section 93X, and because it was something that was raised at the outset of the case by Justice Hayne this morning, the question of reading down, and it really raises the question of whether if one assumes the answer to the first Lange question to be yes – which for the purposes of this argument you make that assumption – then there may be a question as to whether one goes to the second limb of Lange or whether one goes straight to section 31 of the Interpretation Act for an exercise in reading down.
Now, we do not necessarily suggest that that is what should happen. In Coleman v Power, Justice McHugh who was the only member of the Court who had to, in a sense, follow through on the exercise considered the second limb of Lange, answered it no, and then went to the equivalent provision of the Interpretation Act (Qld) and read down the provision to exclude political communications. It is a question in what order that exercise might be engaged in.
HAYNE J: But it is also perhaps, I do not know, it may be a question of whether the Court should embark on that inquiry without a factual base, hence my question of counsel for the plaintiff whether there was alleged here to be any element of political communication; answer no. Now, it may be that resolution of or determination of whether it is question 2 of Lange or section 31 may be illuminated by knowing the facts of a particular case. At some point in your submissions, whether yours or Mr Renwick’s, I would be assisted to know whether the State makes any submission about should we determine either Lange question 2 or section 31 or whether – maybe there is not this middle ground – whether there is a middle ground which says, look, even if question 2 Lange were answered in one way, the consequence would be that there would be a reading down, therefore, do not decide whether it is Lange question 2 or reading down.
MR SEXTON: Your Honour understands that we would say here that question 2 would be answered yes, but in the unlikely event we would say that it was answered no then section 31 would say the general operation of the provision. The question is particularly raised in this kind of case whereas, as your Honour points out, there is no factual basis for inquiry as there was in Coleman v Power, and also because you have got a statute here of where on its face it appears to have no – it appears to have nothing to do with political communications and one might think in its general and normal operation that it would have nothing to do with political communications. So, in a sense, it really raises that question at the outset. I am not sure what the answer - Justice McHugh took a particular course. He went to the second limb of Lange, then he went to the Interpretation Act, but he was the only one who had to do that.
At any rate, your Honours, let me say something first about the construction of section 93X. Section 93X, we would say, involves six limiting factors and I will just detail those briefly. First, that the contact must be intentional and not accidental, as noted by Justice Mason in Johanson at page 383. Second, the contact must be more than fleeting, as Justice Mayo said in Dias v O’Sullivan [1949] SASR 196 at 201:
Consorting, however, suggests a more or less close personal relationship, or at least some degree of familiarity, or intimacy -
Third, the contact must be with convicted offenders, that is, persons convicted of an indictable under the Crimes Act 1900 (NSW), and section 12 of the Interpretation Act 1987 we say would confine the operation of the term “convicted offender” to New South Wales offences. I will not take your Honours to that provision. Your Honours are familiar with it. It has been said that the status of a convicted person can be acquired by the commission of one indictable offence. That is so, but it may be noted that such a conviction may become spent after 10 years from the date of the conviction or later release from imprisonment if no further offences were committed within that period, except in the case of persons sentenced to a prison term over six months or convicted of nominated sexual offences.
There is two other exceptions but I will not take your Honours to those - sections 7, 8, 9, 12 of the Criminal Records Act 1991 (NSW) – and it might be assumed, in any event, that the number of persons in the community convicted of even one indictable offence in their lifetime is a relatively small group, so that to that extent the ambit of section 93X is limited by that factor as well.
Fourth, the contact must be habitual, and Justice Bell has raised that matter earlier today. So that, for example, occasions that might be far removed in time from each other would not necessarily satisfy that description. In other words, section 93X(2) provides that where habitual consorting does not occur, that it does not do so in an exclusive fashion.
Fifth, prior to any contact constituting an offence, there must be an official warning by a police officer, orally or in writing, in relation to each of the two specified convicted offenders informing the person in question that each convicted offender is a convicted offender and that consorting with a convicted offender in the context of the legislation is an offence.
GAGELER J: Is that an exercise of statutory power that is subject to judicial review - - -
MR SEXTON: We would say it would be, your Honour, yes.
GAGELER J: - - - and collateral review?
MR SEXTON: Either in the context, yes. Sixth, the contact can be disregarded if it falls within one of the six different categories and the defendant satisfies the court that that was reasonable in the circumstances – section 93Y. Now, all of those elements except for the last one need to be established by the Crown on the criminal standard of proof, that is, beyond a reasonable doubt.
FRENCH CJ: Is it a condition of the validity, if you like, of the official warning that it relates to a person who has already habitually consorted with convicted offenders? In other words, does habitual consorting precede the warning?
MR SEXTON: You see, your Honour, that subsection (1) provides that for consorting with the offenders and after the warning has been given in relation to each of the offenders, so that it would be necessary, one would think, that there is some sort of initial contact so that that person needs to be identified so that the warning can be given about them.
FRENCH CJ: The offence is then habitually consorting after a warning has been given.
MR SEXTON: Yes. So there might only be one further contact after the warning, that is bearing in mind Justice Bell’s point about habitual consorting, but theoretically that would meet the requirements of the section.
HAYNE J: The relevant content of the warning would simply be, I tell you that X is a convicted offender, I tell you further consorting with a convicted offender is an offence.
MR SEXTON: That is right. Assuming that - - -
HAYNE J: It would not require the police officer concerned to characterise the relationship or the contact that either is then occurring or has previously occurred.
MR SEXTON: But there needs to be consorting with two convicted offenders, they could be at the same time, of course.
HAYNE J: Of course.
MR SEXTON: That is right. So that the warning might relate to a person – it is hard to think perhaps of a situation where there has not been some sort of contact or the person is not perhaps in the vicinity, but theoretically, as your Honour puts it, the section would extend to that.
GAGELER J: If three convicted offenders decided to meet together, until this law was repealed, for the purpose of discussing or lobbying for its repeal, would they be consorting within the meaning of the statute?
MR SEXTON: Well, that really raises the question of whether they are reading down, in a sense, your Honour, in relation to some kind of political communication.
GAGELER J: What is the question?
MR SEXTON: Well, the answer is that it may well be that the second question under Lange, which I am about to come to, would still, notwithstanding that situation that it was for political communication of a sense, could still be answered yes. In other words, that it was consistent with, or proportionate, et cetera, and if not then one would get the reading down, section 31.
GAGELER J: There is a matter of pure construction without getting to the constitutional point, is it consorting?
MR SEXTON: If they are living together?
GAGELER J: No, if they are meeting together routinely and for the purpose of political discussion, is that consorting?
MR SEXTON: Well, there is a threshold question perhaps as to whether, given the need for a warning, whether that warning would be for a proper purpose under section 93X, if it was obviously a matter of political communication.
GAGELER J: What is your submission on that?
MR SEXTON: Well, probably not, your Honour.
GAGELER J: Why not?
MR SEXTON: Because the section envisages a warning designed to – within the intention of the legislation – the prevention of crime, and the temptations that might be available with consorting with convicted offenders that that would not cover the situation of political communication that your Honour has put forward.
FRENCH CJ: How do you draw the line between political communication and any other innocent purpose?
MR SEXTON: Well, that is a factual matter, your Honour, that could only be decided really on a case by case - - -
FRENCH CJ: I am saying, if it is good for - if the issue of a warning notice in respect of consorting for the purposes of - or association for the purposes of political communication is outside the scope and purpose of the legislation, what is the categorical difference between that limitation and a similar limitation in respect of any innocent purpose which might - - -
MR SEXTON: Well, the warning would be outside the purposes of the legislation if the person giving the warning was aware of the circumstances, otherwise as your Honour says, it could - - -
KEANE J: But if you put the warning to one side - just put the warning to one side - if the only association is an association for some public political purpose, is there the personal, intimate relationship which you submitted is the basis of consorting?
MR SEXTON: Well, probably not, your Honour. Again, it depend upon the facts, but if one is talking about a political meeting, for example, the so-called town hall type meeting, then that would not meet the - there might be people present who would fit the description of convicted offenders - - -
KEANE J: But there is not a personal relationship between individuals which would enable one to say that of one, that he or she is the consort of the others.
MR SEXTON: No, no, that is right.
HAYNE J: I would have thought that the answer to which you would ultimately have to be driven, Mr Solicitor, is the bold one, that one is constitutionally protected, one is not. That if people meet together for the purpose of running a footy tipping competition and each of them happens to be a convicted criminal and they seek each other out and associate, true it is, only for the purposes of tipping the next round, it would be caught by the Act, would it not?
MR SEXTON: Yes, they would. Yes, your Honour.
HAYNE J: If they meet to lobby for a change in the law, that is a constitutionally protected subject matter which represents a limitation on legislative power. Now, either you can hold the line there or I wonder what other part of the Maginot Line is remaining intact, Mr Solicitor?
MR SEXTON: Well, let me put it this way, your Honour? It is possible to have limitations on freedom of political communication and still meet the test of the second limb in Lange. So we would say in a situation here where this is a provision of general operation which on its face and normally would have no impact on political communication, we would say you could answer the second question in that way. If that not be right, the fall-back position is section 31 of the Interpretation Act which would carve out those limited group of communications which deal with political matters.
FRENCH CJ: The difficulty is thrown up a little by a line in the judgment of Justice Mayo in Dias at page 201; that is (1949) SASR. He says that the fundamental – this is the second last paragraph, fourth last line in it:
The fundamental ingredient is companionship. The fact that people meet (inter alia) to carry on some trade or occupation is not inconsistent with a fraternising contemporary therewith amounting to consorting.
So it looks like there are different characterisations of a relationship depending upon how it is carried on.
MR SEXTON: Your Honour, those sorts of questions are really factual ones which – they are hard to deal with outside of the context of a particular case which we do not have here which is why – but if one posits those kinds of unlikely perhaps scenarios or examples, as I said, there are two ways of dealing with them. One is to say that they do not prevent the second limb of Lange still being answered in a positive way, or if they do then section 31 excludes them from the operation of the section. They are certainly pretty unlikely scenarios in the context of this legislative provision.
CRENNAN J: In the setting that Mr James, as I understood him, was saying, when you read the relevant provisions, any communication is consorting. Do you point to anything in the provisions themselves? I know what you have said about political communication is constitutionally protected. I am saying, insofar as Mr James, so far as I understood him, was submitting that when you look at the provisions, any communication is consorting. My question to you is I understand what you say about well, political communication is constitutionally protected. My question is, is there anything you point to in the provisions themselves which contradict Mr James’ submission about them?
MR SEXTON: It depends what you mean by communication, I suppose, your Honour.
CRENNAN J: I am focusing on the provisions themselves.
MR SEXTON: Well, the forms of communication referred to in the provision but if one looks at the – that is why I quoted from that – the Chief Justice is quoting from another passage from Justice Mayo, but I quote from that to suggest that it does involve some sort of relationship. It is not simply an accidental kind of encounter and so that – I am not sure what - - -
CRENNAN J: Are you saying you need to read these provisions with the freight of understanding what the common law had to say about consorting?
MR SEXTON: Well, certainly the background. I mean, as Justice Bell has said about “habitually”, the section is not looked at in a vacuum so that there may be forms of communication that would not be covered by the provision. It is hard to deal with that in the abstract. I am not sure what my learned friend, Mr James, meant by all forms of communication, but it – as your Honour says, the common law background and the statutory background indicates a notion of some sort of relationship, some sort of association.
FRENCH CJ: The other means, electronic or other form of communication, must still feed into the notion of consort, in the sense of association or companionship or so forth.
MR SEXTON: Yes. Your Honours, I might move to the second limb of Lange even though I have already pre-empted some of those questions. I dealt with those limitations that we say exist in the provision and they exist in the context of a law that we would say obviously has a legitimate statutory purpose. It may be, as Western Australia has noted in its written submissions, that it is difficult to imagine a situation where a law of the federal or a State Parliament does not have a legitimate statutory purpose, but in this case it is clear that the law seeks to prevent criminal activity by deterring contact between criminals or contact between criminals and others who might succumb then, or later, to criminal behaviour.
KEANE J: But it is not any contact. It is not attempting to muzzle them or to make them outlaws or to separate them from the community. It is a particular sort of association which Justice Mayo described as comradeship or fraternisation.
MR SEXTON: Well, yes, your Honour and, as I said, the notion of fleeting or accidental contact - in normal circumstances one would be talking about, that is right, some form of association.
KEANE J: Or in personal communications, letters of demand. One does not consort with people that one sends a letter of demand to.
MR SEXTON: No, no, your Honour. I understand what your Honour is saying. That is right, it is contact of – that is why I used the word that it is some form of relationship. It does not have to be a close personal relationship of long-standing duration but there does have to be an element of relationship about it. Your Honour the Chief Justice noted in Totani – I have only got the paragraph numbers for these, your Honour, but 32 to 33 – that the object of consorting laws was:
to prevent or impede criminal conduct by imposing restrictions on certain classes or groups of persons and on their freedom of association.
It could be said in this case, we would say, as found in Unions NSW, that there is no rational connection between the legitimate purpose and the means chosen to achieve it. The limitations that I have referred to also need to be seen in the context of a law that is not designed to affect political communications and, as I have said, in normal circumstances might be thought to have the most minimal impact on them. I will just quote a short quote from the majority in Wotton (2012) 246 CLR 1 at paragraph 30:
In answering the second Lange question, there is a distinction, recently affirmed in Hogan v Hinch, between laws which, as they arise in the present case, incidentally restrict political communication, and laws which prohibit or regulate communications which are inherently political or a necessary ingredient of political communication. The burden upon communication is more readily seen to satisfy the second Lange question if the law is of the former rather than the latter description.
If ever a law could be characterised as having only an incidental effect on political communications, it might be this one. In those circumstances, we would say that invalidity could only be demonstrated if the meanings chosen – chosen by the legislature to achieve that objective – were wildly disproportionate or unreasonable.
It would not be sufficient in this case, we would say, for the plaintiffs to demonstrate that there were some slightly less restrictive means of achieving the same objective than that chosen by the legislature, though we do not concede that this could be demonstrated in this particular case, but even to undertake that kind of inquiry is to use the second limb to conduct what is really an open-ended merits kind of review of the legislation in question. Chief Justice Gleeson said in Coleman v Power at paragraph 31:
the Court will not strike down a law restricting conduct which may incidentally burden freedom of political speech simply because it can be shown that some more limited restriction “could suffice to achieve a legitimate purpose”. This is consistent with the respective roles of the legislature and the judiciary in a representative democracy.
In a sense, this was implicit in the judgment of Justices Crennan, Kiefel and Bell in Monis at paragraph 347. Your Honours have already been taken to that by my learned friend, Mr Reynolds. But it was said there about the question of reasonably practicable and less restrictive alternatives that:
Given the proper role of the courts in assessing legislation for validity, such a conclusion would only be reached where the alternative means were obvious and compelling –
My learned friend, Mr Reynolds, spent some time on that quotation, but we would say there is nothing surprising about it, particularly in the context of a case like the present where the impact on political communication is very marginal and perhaps more marginal than in any of the cases that have come before this Court.
It was said in submissions on behalf of Mr Tajjour at paragraph 5.24 that the law should be restricted to “tethering criminal liability to a criminal design”, but that is the terrain of conspiracy laws, whereas consorting laws have always been designed to operate at an earlier stage in potential criminal activity.
Similarly, the laws concerning criminal organisations and control orders which now operate in pretty much every jurisdiction deal with a different subject, that is, membership of an organisation that has been found to be an unacceptable risk to the safety, welfare and order of the community.
FRENCH CJ: They are directed to association by members, are they not?
MR SEXTON: Yes, your Honour. There have been various notions of less restrictive measures that have been put forward by some of the plaintiffs, but none of those of course go to the question of political communications. They are really attempts to redraft this law in a way that the legislature might, but did not, adopt at the time.
Now, finally, your Honours, if I just come back to section 31 and just say again that that is, in a sense, the position that we would adopt, only if - and we do not invite your Honours to answer no to the second Lange question. My learned friend, Mr Reynolds, said that one of the problems about reading down here was that the notion of political communication was too vague to allow that exercise.
It is, of course, a concept that arises under the Constitution and there is many concepts - interstate trade, for example, might be an example where, in any particular situation, the Court has to decision what that term means and that, in our submission, cannot be a reason to preclude reading down where in a situation where political communication is to be constitutionally protected.
As I have said to your Honours, we do not invite your Honours to get necessarily to that particular stage. We would say that the case can be dealt with on the basis of the second limb in Lange, assuming, for the purposes of my submissions but not for Dr Renwick’s, that the answer to the first limb of Lange is that there is a burden on political communications.
HAYNE J: Can I just then see if I understand what it may be that the submission amounts to? One, I would understand you to have us construe 93X(1), or 93X more generally, and the reference to “habitually consort”, as the repeated, in the sense of as a matter of habit, repeated establishment and effectuation of a relationship at least twice with at least two persons whom the accused knows because of warnings to be convicted offenders. I understand you to say that we should understand that construction of 93X as being legislatively judged to be a suitable step to prevent commission of crime, even though it is anterior to the commission of crime by any of the persons, be it the accused or the alleged consorts. So far do I capture at least part of your submission, Mr Solicitor?
MR SEXTON: Subject to when you say prior, anterior to the commission of crime, except in the case – except for the fact there is convicted offenders involved.
HAYNE J: I understand that. You, I think, may then observe that what is said or done between the participants in these encounters, that is, what is said or done in the course of these encounters, is irrelevant to the operation of the law, 93X, is that right?
MR SEXTON: Subject to the purpose of their contact being obvious, perhaps, and an obvious form of political communication.
KIEFEL J: Could I just take you back to what you said a little while ago about the alternative means which were put forward? I understood you to say, I think, that the alternative means pointed to might be seen as alternatives to how the provisions operate as consorting provisions, giving rise to that particular offence, so they might require more before the offence is made out, but your point is that they say nothing about how to effect a lesser restriction on the freedom of political communication. That is your point?
MR SEXTON: Yes, that is my point, but also that we would say that, in any event, they are really debates about legislative choice within an area where, we say, that the effect on political communication is so marginal that one would require significant disproportion between the means and ends to answer the second question in Lange adversely.
GAGELER J: Why is the effect on political communication marginal? I mean, we have no facts in this case so what is the basis of that assertion?
MR SEXTON: Only because of the nature of – the history of consorting laws would suggest that – and the law on its face would suggest that it is designed to deal with contacts between, on the one side, persons with criminal convictions and, on the other side, persons who may or may not have criminal convictions, that these kinds of contacts are unlikely to be for the purpose of political communication. It does not seem to us that - it is something the Court, we would say, could take notice of. It is possible to posit an unlikely scenario where the contact was for the purpose of political communication but we would say it is highly unlikely and we do not have any facts.
GAGELER J: Just so I understand your submission, if you posit such a scenario, and it is easy enough to think of lots of hypothetical examples, but a prisoners’ action group, for example, do you still seek to maintain that the second limb of Lange supports validity?
MR SEXTON: We do, we do.
KIEFEL J: Do you say that of their nature these provisions are unlikely to have an effect on restriction restricting political communications very often, is that it?
MR SEXTON: Yes.
KIEFEL J: Because the question is legislative restriction on political communications as a guaranteed freedom and not a personal right, that is why you say that that effect is going to be so few and far between in its occurrence that the test is passed.
MR SEXTON: Yes. I mean, the other way - and I can deal with, in a sense, Justice Gageler’s question - if one wanted to protect, for example, the prisoners’ action group, if one wanted to protect those associations or communications then that would require the operation of section 31 by way of reading down. Now, it is hard to – in Monis, for example, the Court was divided, but three members of the Court took the view that even though the legislative provision had an impact on political communication nevertheless – and in that case, where there was a factual basis communications that were, at least in part, seemingly political, that nevertheless on the second question of Lange that the legislation’s validity was upheld.
But there are two ways of – which is why I said perhaps at the very start of these submissions that there is two ways of approaching this, and we say either way leads to the same result, but the two ways do involve, to some extent, different considerations. Unless there is anything further, your Honours, I will ask Dr Renwick to deal with the remaining submissions.
FRENCH CJ: Thank you.
MR RENWICK: May it please your Honours, in about 15 minutes, may I deal with the last three points in our oral outline in reverse order? I will also be referring to our written submissions. May I deal with the treaty point in a sentence? For the reasons we give in paragraph 58 and the reasons, indeed, given at greater length by Mr Walker in his submissions, there is no warrant to read a clause like the US Constitution’s treaty clause or, if you will, a new section 109A, into our Constitution, and that point must fail.
Dealing with the second-last point, that also can be dealt with quite briefly in view of Mr Lange’s concession. In his words, there is “nothing wrong with Wainohu”, and that he does not challenge the corollary notion in paragraph 112 of that decision. If, as the plurality there state, that the same test of infringement and validity would apply to freedom of association as to freedom of communication, then there can be no freestanding implied freedom of communication, let alone one on every topic as he suggests.
As Justice Gummow and your Honour Justice Hayne said in Mulholland – I will just give your Honours the paragraph number at 148 – freedom of association has “no additional life”. May I then take you to the more substantial question – and I do appreciate the more difficult question – about the first limb in Lange. What I am seeking to do here is to elucidate what is meant in Unions NSW by “inconsequential” or by three of your Honours when you use the term “real” in Monis.
I do not wish to be misunderstood on this point, your Honours. We do accept the challenge law is capable of burdening the capacity of some individuals to associate and thus communicate about political and governmental matters in some circumstances. Of course, we accept that. But, that is not the end of the argument, we say, even on the first limb.
Can I make these points? There are some important construction and severance points made by the Solicitor-General who leads me and I, of course, adopt them. But, without repeating those points, you start off with construction of the statute without reference to section 31 and, of course, we adopt what Justice Bell has said about habitual consorting. In relation to consorting – and I do not again wish to go over what my learned leader has said – if you would turn to our submissions at paragraph 30, even the notion of consorting has its distinct limits. So, we have put there a hypothetical that, for example:
one of the plaintiffs –
but it could be anybody –
wishes to make a political statement or communication covered by the freedom.
We say they can do it in the circumstances there set out in paragraph 30. In other words, there is substantial latitude in how those communications can be made. We say the politicians’ newsletter referred to by Justice Keane would, equally, not be consorting and nor would, necessarily, the clergy and congregation point except if you dreamt up an extreme example. That leads me to the next point which is the problem about extreme examples in constitutional discourse.
May I take your Honours briefly back to Wainohu where Justice Heydon I accept in dissent as to the result in that case, and I am sorry I do not have page numbers, but paragraphs 151 to 153 in Wainohu. May I briefly make these points? In paragraph 151, of course his Honour makes clear in the first sentence he is talking there about “the breadth of the constitutional power”. I understand that. Nevertheless, he talks about the dangers of “extreme examples” and “distorting possibilities”. Much closer to home is paragraph 152 where his Honour says:
it is wrong to approach an allegation that a particular legislative provision is invalid by identifying an operation of that legislative provision which may be theoretically possible but . . . dangerous if abused –
I will come back to that in relation to the warning, if I may. The third point is in paragraph 153:
That reasoning extends a principle developed in relation to express constitutional powers, and the validity of legislation examined against express constitutional powers, to constitutional doctrines not resting on –
the very words. We respectfully adopt what his Honour there said. May I just give your Honours another reference to what Justice Heydon says in Wotton at paragraph 54? Again, I need not take your Honours to it, but he uses language now expressly in relation to the implied freedom we are considering, that things must be a real or actual burden upon relevant communications, a real impediment, and so on.
The notion of reality, of course, real burden, is picked up or echoed to an extent by what three of your Honours said in Monis. While I am on this point, may I take you in our submissions to paragraph 57, where we set out a quote from The Final Report of the Constitutional Commission, you will recall chaired by Sir Maurice Byers, where he says that in the underlined words:
that most human activities involve association and interactions –
Laws are about such interactions. Most laws therefore will affect freedom of association. Why do I take you to that? To make the point that if the first limb in Lange is more than a formality, which every law will be found to infringe and we say it cannot be just a formality, then it will be necessary to draw a line and the question is where. Otherwise, to take an example of the law which might be a clear one of an inconsequential law, take the fact that some landholders have a legal right to exclusive possession over their land, protected by the law of trespass, it is possible to imagine some people in some circumstances wanting to politically demonstrate on that land but we say, by way of example, that would be a classic case of an inconsequential effect.
That brings me back to what your Honours most recently said in Unions NSW, in other words you look at not the effect on individuals’ rights, which is another reason to put the extreme or distorting examples aside and to look at the freedom generally. Moving then from those general propositions, if I may, to the law in this case, again without repeating what my learned leader has said, firstly as Justice Heydon said, it is not to be assumed there will be legal abuse of the power to warn and that is one answer we would say to the hypothetical about a warning being given to or about a parliamentarian not to communicate with electors about political matters, or the idea of a warning being given to everybody at a meeting of an established political party, any more than it may be assumed that a police officer would accept a bribe to warn someone under this law.
But if it happened, as my learned leader said in answer to a question from Justice Gageler, if the warning was for the purpose of preventing political communication, and we say it would be an invalid warning, it could be challenged collaterally - see Ousley v The Queen, perhaps by declaratory relief; see Gedeon v NSW Crime Commission, perhaps by judicial review.
There would be many ways to deal with that and when considering how this law works it is true, and this goes back to the Chief Justice’s question about well, what are the limits on the notion of “consorting”, we start from the proposition that perhaps no laws have no limits, this law does not have perhaps many limits, few express limits, but one of them at least by operation of section 31 is that if it were known that there was political discussion going on, then first it is probably not consorting, that is by operation of section 31 at least, but secondly, you could not give a warning in relation to it if you - - -
GAGELER J: You are assuming the constitutional issue against yourself.
MR RENWICK: I am sorry, your Honour?
GAGELER J: If you are saying section 31 does the work, you are assuming some constitutional proposition against your argument.
MR RENWICK: Perhaps I am conflating them unnecessarily. Can I go back a step? I wanted to say something about the warning and the idea that it should not be assumed that the warning would be abused and if it would be abused, under normal administrative law principles it could be dealt with.
GAGELER J: Why would it be an abuse of the warning power in your submission to give a warning in circumstances of a known political association? Why an abuse?
MR RENWICK: Yes. We say that, well, it really is ultimately by reference, I suppose, to section 31 or the existence of the implied freedom. When you are - - -
GAGELER J: You have to do it in stages, do you not?
MR RENWICK: I do.
GAGELER J: Section 31 operates where there is a constitutional limitation.
MR RENWICK: Yes.
GAGELER J: Are you accepting the existence of some constitutional limitation that affects the exercise of discretion?
MR RENWICK: Yes, that is one possibility. Yes, your Honour.
GAGELER J: A possibility or an answer?
MR RENWICK: I am sorry. I am certainly trying to answer your Honour’s question. One answer to your Honour’s question is that section 31 could be used to read down the meaning of the statute and thus the discretionary power. We say, as my learned leader said, that is not your starting point. We do say, by reference to the subject matter, scope and purpose of the provision it is not a law intended to impede political discussion.
I get to that point simply by normal statutory interpretation techniques, including the second reading speech. There is, for example, no mention in the second reading speech that one of the purposes of this law was an intention to impede political discussion and it would be surprising if that had been said. It is put perhaps more elegantly than I am putting it at present and I will give your Honours the reference in clause 13(c) of Victoria’s submissions which say this – and I will just read the sentence:
as a matter of construction, the exercise of the power to warn must be exercised for a proper purpose, in accordance with the subject matter, scope and purpose of the provision – a desire to prohibit or impede political communication would not be a proper purpose.
So my starting point is orthodox statutory interpretation, your Honours. We say when you remove the inconsequential – I am sorry, when you remove the extreme or distorting examples, when you look at the many limitations in this provision, see, for example, section 30, we do say you are in the territory of an effect or burden which is so slight as not to be having a “real effect”, to use the language of three of your Honours in Monis, or an effect which is so slight as to be inconsequential.
The dictionary meaning of “inconsequential” of course is of little or no importance or insignificant. That rather begs the question, significance in relation to what? But significance in relation to the freedom, we say, it is minor or not real or trivial or to be ignored. That is the way we put the final proposition.
FRENCH CJ: The constructional proposition that a warning could not be issued for the purpose of impeding political communication is not a complete answer to the first question, though, is it, because it may be a warning for a legitimate – for a purpose within that contemplated by the statute which has an incidental effect upon freedom of political communication.
MR RENWICK: I accept that would not be a complete answer to that. Unless I can assist your Honours further.
KIEFEL J: Just before you do sit down, when you are talking about the inconsequential effect, you are talking about an effect in quantitative terms, are you not, rather than qualitative, because if it is going to impede communication about political matters it is neither will or it will not and it will have an effect that people cannot discuss it. The burden will, in that sense, be real. It is just that it is not going to happen too often. That is really the extent of the submission, is it not? It is important because it identifies whether you deal with this question, whether it is answered at the level of the first question in Lange or the second.
MR RENWICK: Of course, your Honour is right. It is important as to which stage it is dealt with. What I have been seeking to do is really to ascribe meaning to the word “inconsequential” by not only construing the provisions but taking out the extreme examples. That is really what I am trying to say. You take out the extreme, the improbable, the distorting and when you do that, both qualitatively and quantitatively you do not have a real effect. That is the submission I have been seeking to make.
FRENCH CJ: Thank you, Mr Renwick. Solicitor-General for South Australia.
MR HINTON: If the Court pleases. A very quick glance at paragraph 1 of our oral handout will see that we immediately cover the same ground as my learned friend, Mr Sexton, opened by doing. We set out, in an effort to answer the question your Honour Justice Hayne posed in APLA - what does this law do - the elements of the offence that it creates. The mental element is there in 1a intentionally. We say that is the mental element by virtue of the content to be given to the expression “consort” in the definition section, 93W. We refer your Honours, as has already been done, to Johanson v Dixon and, indeed, to Dias v O’Sullivan. Dias v O’Sullivan, Justice Mayo, is also helpful when it comes to what constitutes a habit.
Can I point out then that this offence would capture political communication that occurred in the course of consorting, and it would capture consorting that occurred in the course of taking part in a political meeting or gathering. So with respect to your Honour Justice Gageler’s question, what about the prisoners’ action group, if there is present at the meeting three people, two of whom are convicted offenders in relation to whom the third has received a warning, and they consort at the meeting of the action group, then the offence may well be committed if the consorting answers the description “habitual”. If they attend and do not consort – one sits at the front, one in the middle and one at the back – no offence.
FRENCH CJ: Is this the kind of distinction that Justice Mayo made between being engaged together in a trade or occupation and fraternisation?
MR HINTON: It is, your Honour, the point that Justice Keane was making. There is a difference – consorting will involve association, but not all association necessarily involves consorting.
CRENNAN J: The personal relationship is important.
MR HINTON: Yes, your Honour, indeed, and so in answer to I think it was your Honour Justice Crennan’s question, we do say that that word “consort” in section 93W is to be construed against the background of the common law and, as your Honour Justice Bell said, this is an acquired meaning, “habitual consort”, and that is why we take your Honours to Justice Mayo’s judgment and, indeed, Justice Mason’s.
FRENCH CJ: When you are talking about the common law here you are really talking about the repeated construction and application of the statutory term.
MR HINTON: Yes, your Honour, in effect, the repeated ordinary meaning given to the words “consort” and “habitual”. I do not, by virtue of what my learned friend, Mr Sexton, has done, propose to take your Honours through paragraphs 1 and 2 in any more detail. They are there. They are consistent with his construction, in my submission.
Can I mention the annexure? It looks cheeky in that we have exceeded three pages. What we are attempting to do in our annexure on the last two pages is set out, having regard to the elements of the offence, where this offence actually bites on communication. It will not bite with respect to an individual and I appreciate we are not talking the right of an individual, but we are talking an effect upon a systemic freedom.
It will bite on an individual only when, in the case of person A, such that they are prevented from communicating with person B, they have habitually consorted with person C, another person. They have been warned prior to an act, the final act, or an act of consorting, that person C is a convicted offender. They have consorted with person B and they have been warned about person B and they are at the point where if they consort again with person B they are at risk of being prosecuted.
At that point they can decide I am not going to consort with person B again, although I will still go to the prison action group, I will just sit down the back, but I will maintain my relationship with person C and they are free to maintain their relationship with person C because, of course, the elements of the offence require at least two in relation to each of whom there is a warning.
One thing I should have said about the elements of that offence, the definition, partial definition of “habitually consort” is expressed in the negative. It tells us what is not, but it does not tell us what is. It is open to a trier of fact confronted by a prosecution such as that contemplated by our annexure to conclude two and two does not constitute a habit.
FRENCH CJ: Lest my silence be taken as consent, Mr Solicitor, can I just say that the practice of attaching annexures to the oral outline is not to be encouraged? This is the sort of thing that could have been included in your written submissions.
MR HINTON: I accept that, your Honour. We are not trying to be cheeky. We are trying to be helpful and no more, but I do accept it - trying to be helpful. Your Honour Justice Hayne’s silence speaks volumes as well.
HAYNE J: Well, I have been verballed for some things, Mr Solicitor, but being verballed for silence I think takes the cake.
MR HINTON: Yes. The transcript will not help either. I move to the first limb of Lange. We concede an effective burden. Having regard to our annexure, there is a burden on political communication. I want to deal with the second limb of Lange. I do not pause over paragraphs 5, 6 or 7 of our oral hand-up. They have been dealt with in large part by my learned friends from New South Wales. We characterise the purpose, the object and the purpose, slightly different.
It is not just purely preventing crime. It is preventing a risk, we say, of people being recruited to crime because, of course, the person who may be in receipt of the warning may have no intention, may have no criminal antecedents, but the warning is given by virtue of the police officer’s knowledge of the two people whom, in order that there be a proper warning given, must have been observed to have consorted with the person to whom the warnings are given. So it has that one step removed from dealing with crimes in their preparation stage to avoiding the risk of someone becoming involved in crime.
May I deal with Monis quickly? In my submission, the essential difference between the joint reasons and those with respect of your Honour the Chief Justice and Justice Hayne in Monis is the extent to which the inquiry under the second limb of the Lange test is deconstructed or unpacked. My ultimate submission is that the inquiry is conducted in the joint reasons and by your Honour Justice Hayne and the approach of your Honour the Chief Justice are the same. Can I take your Honours to Monis 249 CLR 92 and may I start by taking your Honours to the judgment of the Chief Justice at paragraph 74? Commencing at the third sentence:
The second is whether, if so, it serves –
down to -
In this case those two limbs collapse into one.
To undertake the exercise that your Honour the Chief Justice proposes, one has to, as we have set out at paragraph 8 of our oral submission, identify first how, in this case, section 93X serves its legitimate end and then, secondly, identify how section 93X impacts upon the implied freedom in its operation and effect and then, thirdly, compare A and B how it serves its legitimate end and its impact in order to determine whether section 93X is incompatible with the maintenance of the proscribed system of representative government.
May I take your Honours to the judgment of your Honour Justice Hayne at paragraphs 145 and 146? In those paragraphs, in my submission, in greater detail your Honour Justice Hayne, with respect, sets out the same inquiry: identify how it serves its legitimate end, identify how it impacts upon the implied freedom and conduct the comparison. Consistent. May I then take your Honours to the joint reasons in paragraph 282? Your Honours Justices Crennan, Kiefel and Bell refer to two conditions halfway through the paragraph – two conditions proportionate – sorry, halfway through the paragraph:
This inquiry involves the relationship between that object and the means employed by the legislation -
Again, consistent with the three steps we have set out, consistent with your Honour the Chief Justice and Justice Hayne -
It is tested by assessing the extent of the restriction imposed upon political communication –
What is different in your Honours’, with respect, judgment is that the second limb is further deconstructed. There are two parts. You consider whether or not the means is reasonably necessary and then whether or not the burden is undue, and we see that in your Honours’ judgment at 277 and 278. Your Honour the Chief Justice, your Honour Justice Hayne, do not refer to what is reasonably necessary as though it were a separate distinct step as part of the comparison exercise that must be undertaken.
But, in my submission, that step in the comparison that your Honour the Chief Justice and Justice Hayne require, is not irrelevant and that much is made clear in the joint reasons in the Unions Case at paragraph [44], hence there the relevance of an alternative and what can be considered reasonably necessary is adopted by your Honour Justice Hayne and your Honour the Chief Justice. My point: applying the second limb, whether you separate it out into the two inquiries, first asking yourself is this means reasonably necessary, and then considering whether or not the burden is undue, involves a consideration of the same factors that is required by the comparative exercise set out by your Honour the Chief Justice and your Honour Justice Hayne.
What is reasonably necessary or reasonably practicable is a factor that may inform the comparative exercise that your Honour Justice Hayne and the Chief Justice say must be undertaken. The judgments, in my submission, then, are consistent. It is important if one is to deal with what is reasonably necessary or reasonably practicable, to bear in mind, as your Honours in the joint reasons make plain, the constitutional framework within which the second limb of Lange is to be applied. Your Honours make that clear at paragraph 345 of your judgment in the final sentence.
Now that is critical, in my submission, because, with respect, what your Honours make clear by that reference is that we are not importing a test from another constitutional context of proportionality. What we are doing, with respect, is deconstructing, my word, what is required by the second limb of Lange within our own Australian constitutional context.
So we are not dealing with notions of suitability, necessity and strict proportionality as understood in other constitutional contexts. We are dealing with what is reasonably appropriate and adapted or, alternately, may be characterised as proportionate. That requires the comparative exercise that your Honour the Chief Justice and Justice Hayne referred to and in the course of doing that exercise one may have regard to alternatives in that they disclose disproportion. They disclose undue burden. They disclose as a consequence of conducting the comparative exercise that it is not reasonably appropriate and adapted.
Staying with Monis and paragraph 345 and alternatives, my learned friend, Mr Reynolds, took the Court to paragraph 347 and he made much of the words in the sixth bottom line:
Given the proper role of the courts in assessing legislation for validity –
He said that gloss, my word, is not to be found in the North Eastern Dairy Company Case, nor in Betfair. That gloss, in my submission, is not a gloss at all. It is critical. What it does against the background of the last sentence in paragraph 345 is make the appropriate reference to the constitutional context in which the second limb of Lange is to be applied.
What is the constitutional context? It is that questions of validity are committed to this Court. But this Court, observing the separation of powers, does not exercise legislative power. It highlights then that any test of proportionality, or reasonably appropriate and adapted, has to be considered within that framework. So the superadded requirement is essential.
In other cases, it may well go unspoken but what, with respect to Mr Reynolds, he does not observe is that when he deals with Betfair at page 479, paragraph 110 – and I will not take your Honours to it – but when he deals there with that paragraph he is dealing with a test of reasonably appropriate and adapted. When he looks at North Eastern Dairy Co at 608, he is dealing with a reasonable regulation.
In each case the concept of “reasonableness” is used as part of the section 92 test observing the constitutional framework within which those tests are to be invoked. “Reasonableness” carries the load then and ensures that a court does not exercise legislative power. So when we come to consider alternatives, that an alternative must be obvious and compelling would indicate that the chosen course is clearly unreasonable. That is must be equally practicable might not necessarily indicate as much. But, for the purposes of incompatibility, it may be exposed by an alternative that is not equally practicable and is an unreasonable means – or may be considered an unreasonable means – of achieving the legitimate end.
HAYNE J: On the question of practicability, it may be useful, it may not be, to go back and look at what the Full Court of Victoria did in Johanson. I think, I am subject to correction – I do not have the case in front of me – but I think you will find there their Honours saying that a foundation for the consorting laws and its ignoring of whether the consorting is for good or maligned purpose is that the law could not be enforced if it were open to an accused to say “We were only talking about the races”. That would inevitably lead to acquittal in almost every case. That argument may be good, it may be bad but it is, I think, an argument that is identified by the Full Court in Johanson.
MR HINTON: That argument is good. It is at 11b of our oral submissions if your Honour pleases. One of the reasons why we say there is no practical alternative here, and why this is a reasonable means, is because if one was to set up a defence of we were consorting for political purposes, it would be an assertion easily made and one difficult to disprove. Imagine here we know, from what my learned friend, Mr James, said the agreed fact is meeting in a café in the Court precinct, either man could enter the witness box and say, we were talking about the latest raft of consorting laws.
GAGELER J: If it was true - - -
MR HINTON: If it was true - if it was true - - -
GAGELER J: - - - and they were believed, what follows?
MR HINTON: In this case, we say, if it is true it does not provide them with a defence, but what we are discussing is how would a defence work that did say, if you were consorting for the purposes of political communication - so that does not mean attending an organised event, that means any circumstance in which you are consorting - - -
HAYNE J: Well, I think the proposition, consorting for political purposes, is mashing together two ideas which may need to be separated. I think it may be that there are three ideas which your submissions put in play. They are, one, because you cannot consort, because the law prohibits consorting, you cannot communicate on political matter while consorting. That seems logically coherent.
MR HINTON: Yes.
HAYNE J: Step two, not every communication between persons constitutes a consorting. You give a content to “consorting” which is larger than and different from bare fact of communication.
MR HINTON: Yes.
HAYNE J: Step three I think may be, therefore, from steps one and two, you can communicate on political matters without consorting, where that leads us I am not quite sure, and then I think steps four and five in your argument seem to be the end of the – or it is not your argument, you are the intervener, Mr Solicitor - the argument for the defendant seems to be that the end pursued by the legislation is the interception of incipient crime. The means chosen to intercept incipient crime is to preclude consorting no matter whether that consorting is for good for malign purpose, and that seems to be consistent with the existing law of consorting, it does not matter why you are together, consorting is prohibited, whether for good or malign purpose.
Step five seems to be the pursuit of that end is consistent with the implied freedom in part because there is no readily apparent less restrictive means to intercept incipient crime. Now, I may have done disservice to the way the argument has developed and, as I say, it is not your argument, it is the argument for the Solicitor for New South Wales, but I think that those propositions may be in play as things presently stand in the argument.
MR HINTON: I answer for South Australia. They are the six propositions we put to the Court.
HAYNE J: I only got to five, Mr Solicitor.
MR HINTON: I must admit, I have got five and I have crossed it out. I lost count with your Honour, but that is the line of reasoning then that we put to the Court. The point I was making - - -
GAGELER J: Yes, you would have to convince me of the last proposition.
MR HINTON: That is what I was dealing with, is whether or not creating a defence in 93Y that said consorting for the purposes of political communication was a reasonably practical alternative. In my submission, it is not because it is an assertion easily made, difficult to disprove. It would then undermine the whole purpose of the legislative regime in attacking a particular type of relationship, in particular identified circumstances for the purposes of preventing a risk of people being recruited to crime or planning crime, you could go that far.
KIEFEL J: What if the person charged bore the onus of proving that their communications were political? New South Wales would probably say that is not necessary because they are not likely to be believed in most cases if they are consorting, anyway, but theoretically.
MR HINTON: Theoretically, extremely difficult. You would be left to, absent some form of overhearing, you are left to cross-examination as to whether or not it is more likely than not. We were there, we were talking about it. We do not have the benefit of a listening device or a telephone intercept. We have nothing. We have a police officer that has seen you two occasions before, warned you. There you are again, prosecutes, confronted in court by this explanation. You, more or less, are resigned to saying no, you did not, did you? Yes, I did. Extremely difficult, undermined the whole process, we say.
FRENCH CJ: The exclusions, though, could raise difficulties of a similar character which you attribute to the positive exclusion of political communication. Without getting into dangerous waters with some of them, let me just suppose that the family members were members of the Timsons of Rumpole fame.
MR HINTON: But the difference between 93Y is it concentrates on circumstances that may be objectively verified. You can make some inquiry into whether or not they are family members. You can make some inquiry as to whether or not they attended this educational institution. You can make some inquiry – there is a degree of objectivity around which you contest, but when it comes down to content, you do not have the same benefit, the difference is between content and circumstances. If you had a defence that said in circumstances of a political meeting or of a meeting by a political organisation, yes, you do have that benefit, but if you come down to content, we were sitting there having a coffee in a café and we were discussing the latest raft of consorting laws and their purposes, then the difficulty that I have alluded to arises.
GAGELER J: You mean the magistrate would be inclined to accept that evidence.
MR HINTON: Easy. The best I can say, your Honours, is an assertion easily made, difficult to disprove, on the balance. It must be remembered, with respect, not – sorry I withdraw that. So can I deal very, very quickly
with my learned friend, Mr Reynolds’ four propositions as to alternatives, at paragraph 3.3 of his oral outline:
a more general reasonable excuse defence –
I have just made my argument – the provision of a defence relating to core political discussion. Again, we have the same sort of observation that your Honour – I think it was Justices Kiefel and Crennan in Corneloup referred to - how do you define a workable defence for that purpose? Then, number (iii):
the provision of a defence for written (or similar) communications –
We say that would not amount to consorting at all. You can send out a flyer to someone describing your political views and it is not necessarily consorting.
Having dealt with the reasonable alternatives and Monis at paragraph 12 of our oral submissions, we set out why this section conducting the comparative exercise, having had a look at the way in which it pursues its legitimate end and identifying how it impacts upon the implied freedom, we then compare those two things and ask whether it is incompatible, whether there is an undue burden for the reasons there set out, the reasons given by my learned friends for New South Wales. In this case, in our submission, the burden is not undue and the answer to the second Lange question would then be yes. If the Court pleases, those are my submissions.
FRENCH CJ: Thank you. Solicitor-General for Victoria.
MR McLEISH: If the Court pleases, I want to confine my oral submissions to the question about the first limb. I adopt our written submissions in relation to the other issues in the case. The question I wanted to canvass in my submissions is how is the Court to decide whether a law effectively burdens freedom of communication, to use the expression used in Unions NSW at paragraph [35] in the joint judgment at page 236.
Another way of putting the question about an effective burden may be to ask whether the burden is insubstantial or whether the effect on political communication is real and the Court has been taken to the joint judgment in Monis at paragraph 343, page 212, where those expressions are used among other places. I do not want to take the Court back to that.
Lest it be said against us that this is only to restate this issue in different terms, I want to seek to explain the issue by going back to the constitutional source of the implied freedom because, in my submission, it is important to bear in mind the nature of the freedom and what the constitutional value is that it represents in order to identify whether or not a law effectively burdens that freedom.
The Court is well familiar that the freedom is not a personal right. Another way of putting that is that the constitutional value in question is not freedom of expression per se. Rather the constitutionally protected value is free elections on the basis of informed choices made by the electors and for that reason, it has often been held that the question is not whether a particular person is affected in their communications. It is what the law does to the constitutionally protected free elections and the flow of information necessary for electors to make informed choices at those elections.
So, the expressions like “the systemic nature of the freedom” are found in the cases. The question that was posed in Unions NSW, for example, is how the law affects the freedom generally. At paragraph 3 of our oral outline, we have set out a number of the authorities in which these points have been made. I did not want to take the Court to all of them but could I invite the Court to go to Unions NSW (2013) 88 AJLR, and in particular in the joint judgment at page 236, paragraph [36]. Indeed, paragraph [35], the final sentence regarding the first question is that your Honours state that the question:
requires consideration as to how the section affects the freedom generally.
I will not read out paragraph [36] but it draws together the authorities on the nature of the right and makes the point again that it is communication more generally that is in issue. A result of that focus on communication generally and the freedom of elections, which the implication is there to ensure, is that constructing examples about where a law may affect political communications is not the correct way to identify the burden. Although it is not in our list of authorities, but it is in the list of others, I wanted to take the Court briefly to some of the judgments in APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44; 224 CLR 322, in part because APLA is, I think I am correct in saying, the only case in which this Court has found that the first limb was not satisfied in the Lange test, depending on the view one takes of the decision in Cunliffe.
If I could first invite the Court to go to paragraph 27 in the joint judgment of Chief Justice Gleeson and Justice Heydon on page 350, paragraph 27, their Honours speak in the fourth of line of paragraph about the source of the requirement with freedom of communication and say that it:
throws light on the context of the expression “freedom of communication about government or political matters” . . . Even so, we are concerned with a freedom that arises by necessary implication from the system of response and representative government set up by the Constitution, not a general freedom of communication . . . The nature and extent of the freedom is governed by the necessity which requires it. For a law to infringe the freedom it must effectively burden that freedom either in its terms, operation or effect.
Moving down, their Honours say:
Even so, we are concerned with a freedom that arises by necessary implication from the system of responsible and representative government set up by the Constitution, not a general freedom of communication –
et cetera -
The nature and extent of the freedom is governed by the necessity which requires it. For a law to infringe the freedom it must effectively burden that freedom either in its terms, operation or effect.
So their Honours are not there specifically speaking of the first limb but they are speaking about the role of the freedom and identifying what it is that the freedom protects. Your Honour Justice Hayne’s judgment at page 451, especially paragraph 381, is often cited for the proposition that:
the central question is what the impugned law does, not how an individual might want to construct a particular communication –
In the following paragraph, your Honour went on to imagine devising an advertisement in the context of that case which combined reference to prohibited subjects along with a political comment or controversy; in other words, devising an advertisement which was to be understood as also making a political point. Your Honour said six lines from the end of paragraph 382:
But demonstrating that an advertisement which contravenes the impugned regulations can be constructed in a way that contains political commentary, does not show that the regulations constitute a burden on the freedom of communication about government or political matters.
In my submission, there is a parallel to be drawn here between some of the examples that have been raised in submissions on behalf of the plaintiffs regarding possible ways in which the present law could affect individuals wishing to make political communications.
The question must be what the law does and the effect it has on the freedom generally, and not on constructive examples where someone may be affected in wishing to make a political communication. We would rely on the analogy that Dr Renwick gave relating to trespass to land as supporting that approach.
Of the other authorities referred to in paragraph 3 of our oral outline, the only other one I wanted to take the Court to is the Adelaide Corporation or Corneloup Case [2013] HCA 3; 249 CLR 1 at 89 where your Honours Justices Crennan and Kiefel in paragraph 220 make the same point in different language and in particular in the first half of that paragraph on page 89, your Honours say:
It must be recalled that the extent of the burden imposed by the By-law is not assessed by reference to its effects on the second and third respondents . . . The extent of the burden is assessed by reference to the need to maintain the system of representative government which the Constitution mandates.
That applies to the first limb as much as the second limb it is submitted and that is the critical constitutional underpinnings of the freedom which, if ignored, tend to risk reliance on or invocation of theoretical possibilities about how individuals may be affected in their particular dealings.
It is particularly important in the present case, in my submission, because for the reasons which others have advanced this afternoon before me there is a very limited nature of the burden which is imposed or the burden contended for on political communication generally and that is not only because of the requirements of the Act that Mr Hinton has just taken your Honours to – requirements of habitual consorting, the notion of consorting being a matter of fraternisation or comradeship rather than communications or even meetings per se, it is not just a matter of the fact that the warning must not be given for the improper purpose of impeding political communication.
It is more fundamentally because a person who is prevented from making a political communication to another person in the course of consorting by this legislation is still able to engage with the wider community about government or political matters and the effect on that larger, wider ability or freedom to be party to communications is what matters for the first limb, it is submitted.
For that reason, we submit that section 93X is not an effective burden on the freedom generally. We would also adopt the written submissions of New South Wales at paragraph 30 which set out the number of the avenues that are available for a person affected by a warning to engage in political communication, and might I add to that Mr Hinton’s observation that if a person is in receipt of warnings in relation to two convicted offenders, ceasing consorting with one of those offenders is sufficient to escape the possibility of prosecution for consorting with the second. For those reasons, in our submission, section 93X is not an effective burden on the freedom of political communication. If the Court pleases.
FRENCH CJ: Thank you, Mr Solicitor. The Court will now adjourn until 10.15 tomorrow.
AT 4.11 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY,
11 JUNE 2014
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