Tajjour v State of New South Wales; Hawthorne v State of New South Wales; Forster v State of New South Wales [2014] HCATrans 120 (11 June 2014)

Last Updated: 11 June 2014

[2014] HCATrans 120

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 WEDNESDAY, 11 JUNE 2014, AT 10.15 AM

(Continued from 10/6/14)

Copyright in the High Court of Australia

____________________

FRENCH CJ: Yes, Mr Solicitor.

MR DONALDSON: If your Honour please. Could we make one or two short submissions in respect of the construction of the relevant provision, without wishing to cut across the submissions that have been made by New South Wales, particularly

in relation to construction which we understood to be to the effect that as a matter of construction section 93X can be construed as excluding or not applying to consorting for the purpose of political communication. Likewise, your Honour, our submissions or short observations in relation to construction are not intended to cut across my learned friend’s reading down submission, both of which, of course, the construction submission and reading down submission get to the same end point.

In relation to construction, your Honours, it is clear from the second reading speech for this legislation, and we refer to that in our written submissions at footnote 38, that the meaning of “consort” for the purpose of section 93X was intended to be the meaning ascribed by Johanson. I will not take your Honours to the second reading speech but there is express reference made there to Johanson. What one gets from Johanson in relation to the meaning of the term “consort” can be distilled, in our respectful submission, to this. It is essentially the formulation of Justice Hayne yesterday morning and it comes from the judgment of Sir Anthony Mason and Justice Aickin.

In our submission, what comes from Johanson is the meaning of consort as follows, that consort involves association and keeping company – sorry, if I can pause there – it is not, in response to some of Justice Keane’s questions yesterday, a coincidental, being in the same room as; it is, in terms of Johanson, involved an association and keeping company where the defendant seeks out or accepts the association – so again, a deliberate process of seeking out or accepting the association – with criminals.

It cannot be seen from Johanson that in relation to consorting offences historically in Australia there was any purposive limitation. Can I ask your Honours to turn to Johanson to illustrate that please? That is [1979] HCA 23; (1979) 143 CLR 376. Can I ask your Honours to turn to page 383 in the judgment of Justice Mason? It is at about point 5 of the page, the sentence:

It is not for the Crown to prove that the defendant has consorted for an unlawful or criminal purpose -

then missing a sentence –

Nor does the word “consorts” necessarily imply that the association is one which has or needs to have a particular purpose. What is proscribed is habitual association with persons of the three classes, they being undesirable or discreditable persons. Mere association with those persons, which is not habitual, for a criminal or unlawful purpose is not proscribed.

Pausing there, that is because it is not habitual, not because there is any purposive aspect to it. And so, from that there is no, as it were, purposive limitation in the consorting offence that was there considered.

FRENCH CJ: The legislation there made no provision for a warning notice of the kind for which this legislation provides.

MR DONALDSON: No. Your Honour – sorry.

FRENCH CJ: So the question is whether in the exercise of the power, or the function of issuing a warning notice, there is some constraint by reference to the scope and purpose of the provisions.

MR DONALDSON: Yes. My learned friend, the Solicitor for Victoria, directed his submissions – certainly his written submissions – largely to that issue. It might be thought, your Honours, that it would not have been intended for the legislature to have imposed that sort of level of review at that stage, for this reason. It would be hard to think that with an offence such as this that the legislature would have intended that at a trial for the offence there would be an issue as to what was the purpose behind the warning.

FRENCH CJ: You submit at paragraph 74 of your written submissions that:

The official warning regime cannot be construed to require that a warning not be given if the purpose of the consorting is to communicate in respect of political matters.

So does that imply that a warning can be given directed to consorting for the purposes of political communication or discussion?

MR DONALDSON: I realise, your Honour, that the submission that we have made at paragraph 74 of our submissions is different from the submissions that have been made by others.

FRENCH CJ: Yes.

MR DONALDSON: It occurred to us, your Honour, that as a matter of construction of the particular provisions, that the warning provision operated simply upon the giving of the warning, and that is how the legislation was intended to operate, and it would follow from that, your Honour, that if in the I suppose unthinkable circumstances that the reason why it was given was to limit political communication, well, it would be lawful to that extent. We do not put to your Honours that there is that sort of limitation upon the exercise of that power, but can I say to your Honour the Chief Justice, if we are wrong in that, then there is very little in this case, your Honour, and we are happy to be wrong, as it were, in relation to that.

Can I also say to your Honour the Chief Justice, it might be thought as well that that would not in a practical sense pose a particular problem at any trial of these matters. If it were to be assumed, your Honour, that there is that limitation upon the power to give a warning, no doubt the police officer who gave the warning would be called as a witness, there would be a presumption of regularity in relation to the giving of the warning, and the police officer I suppose could be cross-examined as to why he or she did – the motivation behind the giving of the warning. So, your Honour, it is not – we are certainly not saying, your Honour, that it is not an operation of the section which is either not open or practicable. It would be practicable. Your Honour, as we have said, if that is the construction of the section, then there is not much in this case.

FRENCH CJ: We are not talking here about a prosecutorial discretion. This is a discretion which must be exercised before the elements of the offence can be complete.

MR DONALDSON: Correct. When I am using “discretion” I am using it in those terms, your Honour, in relation to the power exercised in relation to the warning. The other thing to be said about the warning, your Honours, is – and this goes back to an observation of Justice Bell’s yesterday, that the warning requirement in the section and the greater specification in the section as to the number or character of those to be consorted with are really, by means of clarification, of old consorting-type laws that really had no specification of those matters, and I think as Justice Bell observed yesterday, part of the motivation no doubt behind these amendments in 2012 was to actually clarify the operation of the section in those respects.

Your Honours, the other matter, if I could simply note, in this matter there is of course no issue as between any of the parties as to what is the object of this particular legislation, and that is to be found in the New South Wales submissions, and I will come back to this in a moment when dealing with some of the Lange-type issues, but the object here is to prevent or impede criminal conduct by deterring non-criminals from associating with criminals. With the greatest respect to my learned friend, Mr Reynolds, his submissions yesterday, which were to the effect that the section – this is his Unions NSW contention – that the section is not sufficiently related to its purpose so as to be valid is difficult to sustain when one has regard to what is the uncontested object of the legislation.

In our respectful submission, it is difficult to contend that there is not a sufficient connection between the legislation and the object of preventing or impeding criminal conduct by deterring association between criminals. That is exactly what it was intended to do and exactly, in our submission, what it affects.

Can I go then, your Honours, to the issues which are dealt with – briefly to the issues that are dealt with in our written submissions in relation to the doctrinal issues that have arisen and been clarified as a result of Monis. Your Honours will have seen in our written submissions, and I will not take your Honours to them in detail but it is in paragraphs 30 to 32, that there is, in our submission, an issue as to the role played by the notion of legitimacy of the object. The issue does not arise in this particular matter because no party contends that that object which has been identified is not legitimate or is illegitimate but it may be, your Honours, that in a case in the future it will be necessary to give some greater clarification to the notion of what is, or what could be an illegitimate statutory object or purpose.

If it is as we would expect it is, your Honours, no more than this, that is, that a statute, the object of which is the curtailing of political communication and that is not a legitimate object, then there is no difficulty with a notion of legitimacy or illegitimacy. If the notion of illegitimacy has a broader meaning, your Honours, then, in our submission, it will be difficult to constrain that notion within a sensible boundary. As I said, your Honour, the issue does not arise in this particular matter.

Your Honours will have also seen in our written submissions that we make some attempt to deal with the notion of proportionality as it was explained in the judgment of Justices Crennan, Kiefel and Bell in Monis. Your Honours would have also seen that we say something about the notion of suitability, or the criterion of suitability in that analysis. Could I make this observation, your Honours, which arose from listening to my learned friend Mr Reynolds’ submissions yesterday? Your Honours will have seen in our written submissions that we contend that the notion of suitability as it is understood in European jurisprudence dealing with proportionality would be problematic in Australia. But if suitability in that formulation means nothing more than what was dealt with in Unions NSW – that is, there must be, as it were, a proper nexus between the legislation and the object, and that is what is meant by suitability then, of course, we have no difficulty with the notion of suitability in that respect.

KIEFEL J: You mean capable of achieving its object?

MR DONALDSON: If that is what Unions NSW means, your Honour, yes.

KIEFEL J: What do you mean? You have looked at European law. What do you mean by suitability?

MR DONALDSON: Whether it is capable of achieving or suitable to achieve its legitimate object is the formulation one most often sees, your Honour.

GAGELER J: Irrespective of collateral damage?

MR DONALDSON: Yes. Although it is only one criterion, of course, your Honour.

KIEFEL J: But it is not employed very seriously in European jurisprudence.

MR DONALDSON: Well, if that is right, your Honour, then we should not have it at all. But if it means, your Honour, what was explained in Unions NSW and that is what is meant by capable of achieving or suitable to achieve then, obviously, it is problematic in that respect, your Honour.

KIEFEL J: The focus on European tests is on the second and third tests.

MR DONALDSON: Yes, necessity and proportionality, or strict proportionality, yes.

KIEFEL J: But neither –I am just looking at paragraphs 49 and 50 of your written submissions – so far as I understand it, I was not aware that either Lange or Monis employs the notion of strict proportionality. In this sense, strict proportionality looks on the one hand at the severity of the burden, and on the other, of the strength or importance of the purpose that is being pursued. Lange sets up the proposition that a burden might be undue, which is to say it looks at the first branch of that question, but it leaves the importance of the purpose being pursued entirely alone.

MR DONALDSON: Well, if entirely - - -

KIEFEL J: At least in the way it is expressed, so I am a little bit surprised to see that you think that proportionality in the strict sense has been employed in any way in this Court. Perhaps it should, but it has not been yet.

MR DONALDSON: No. Well, then I have obviously misunderstood your Honour’s judgment in Monis. Your Honours, as you would have seen from the balance of our written submissions, our contention is that when one comes to that final determination of the third question on the proportionality analysis, or whether the law is reasonably appropriate and adapted to achieve its object, the determination of that question is what your Honour has described as the first aspect of proportionality, and not the second.

KIEFEL J: Well, it is encapsulated in the words “undue burden” used in Lange.

MR DONALDSON: Correct, correct.

KIEFEL J: No more, nor less than that.

MR DONALDSON: Yes. We do not contend - - -

KIEFEL J: The arguments that have been presented though do not really throw up the question of a real severity of effect. The question is at the other end of the spectrum about whether or not one gets from the first to the second limb because on one set of arguments the effect is said to be inconsequential and then, as a matter of degree, the plaintiffs would say it cannot possibly be seen to have that effect because the threshold of the first limb is so low.

MR DONALDSON: Well, your Honour, can I answer that in this way? Part of the reason why the plaintiffs, as I have understood it, contend that there would be an appreciable effect upon political communication is because of an erroneous construction of what constitutes consorting and I have dealt with those issues of construction. But, secondly, your Honour, in our submission and we have sought to develop this in some detail in our written submission, when one comes to determine the question of validity it is a question of the extent of the burden or how undue it is. The difficulty – and this is the issue which is most squarely dealt with by Justice Hayne in his Honour’s judgment in Monis – is how little is too much? In our submission, that is the inquiry.

HAYNE J: At what point? Question one or question two?

MR DONALDSON: Your Honour, you could be excused for putting to me that what we have contended - - -

HAYNE J: I do not need your excuse for anything, Mr Solicitor.

MR DONALDSON: I am sorry, your Honour.

HAYNE J: Be good enough to answer my question.

MR DONALDSON: Sorry, your Honour. There is a conflation between the two, your Honour. As your Honours will have seen from our submission, we do not address the first question because, in our submission, the first - - -

CRENNAN J: Do you mean by that that the factors which may bear on whether or not a burden is incidental – having decided that there is a legitimate object - are you intending to suggest that those factors are the same sort of factors which may be employed to conclude that a burden is insubstantial or too slight for the first test – first limb, I should say.

MR DONALDSON: Whether the burden is incidental is a slightly different inquiry to whether it is substantial or insubstantial.

CRENNAN J: What are you saying is conflated then?

MR DONALDSON: The first two questions, Lange questions.

CRENNAN J: In what respect?

MR DONALDSON: The test is if there is a legitimate object – that is, the object of the legislation is not to burden political communication, then validity is determined by what is the extent of the burden upon political communication.

CRENNAN J: So you are saying, are you, you look at the legitimate object when you are deciding, as Justice Kiefel put to you, whether there is an undue burden?

MR DONALDSON: No. If the object is illegitimate, then it is invalid, your Honour. It would be hard to contend - - -

CRENNAN J: You started this off, Mr Donaldson, talking about conflation. I am just trying to understand what precisely is being conflated - - -

MR DONALDSON: I am sorry, your Honour.

CRENNAN J: - - - in terms of there being two limbs to the test.

MR DONALDSON: I was seeking to deal with Justice Hayne’s question which was, where this question of the extent of the burden – whether it arises in relation to the first limb of the Lange question or the second limb. What I was seeking to state to his Honour was that because of the manner in which the first question is asked and, as it were, that there is, in our submission, really a formulaic answer to the first question; that is, it is always yes, when one comes to look at validity as to the whether the burden is undue or the extent of the burden, that arises in consideration of the second question. So I was seeking - - -

KIEFEL J: But why – I am sorry. Please finish.

MR DONALDSON: I was seeking to say to Justice Hayne that the inquiry is really the same in relation to both of those questions and if the inquiry is really the same at both stages of the question, then the issue is whether there is any sense in having two questions. That was the sense in which I was using the term conflation, your Honour.

KIEFEL J: I do not quite understand why you say the answer to the first question is almost as a matter of course that it would always happen. It may well be, and I think the cases may express this by reference to the requirement that something be so inconsequential, it may be that the threshold is very low, but that is because the role of the Court is to protect the freedom. So its role is to examine any limitation or restriction effected by legislation upon a constitutionally guaranteed freedom, that is why the threshold would be placed low. Beyond that you move into the consideration of whether it goes further than necessary by reference to whatever test is thought to be correct.

MR DONALDSON: Yes. Well, your Honour, in relation to the first question, all we say – and we do not wish particularly to get bogged down on the first question – but all we say in relation to the first question is if the question is in relation to the first question could this law apply to political communication? Political communication as developed by this Court means really communication about any matter, because any matter could be the subject of legitimate political discourse. So any law on that analysis which relates to any form of communication answers the first limb, and Monis is an example, as is this case. As everybody knows, and as - - -

KIEFEL J: What amounts to a political communication was not determined in Monis. It was an uncontested issue. Perhaps it should have been contested, because whether things truly should be described as political communications is not something that has been looked into to any great extent in these cases.

MR DONALDSON: Yes, well, I suspect it will in the future now, your Honour. We had proceeded on the basis, and we have not directed written submissions to it, but the answer to the first question – or the first question is posed in the manner in which I have put it to your Honour, and if posed in those terms the answer to it will, in effect, always be yes.

KIEFEL J: Could I ask you about paragraph 75 of your written submissions? I am just not quite sure what you are seeking to convey. Are you saying there that there will not be a great effect upon the freedom because it is only when persons with criminal convictions are habitually consorting and are communicating about matters of politics, that is, when you have that conjunction that the freedom will be restricted, may be regarded as restricted and that that conjunction is not likely to occur very often? Is that what you are trying to convey?

MR DONALDSON: Yes, perhaps not put as succinctly as it could, but what we are saying there, your Honour, is really - - -

KIEFEL J: You are not going to have the combination of those two factors occurring very often.

MR DONALDSON: It is to be read with what follows in 76 really, which is that this is the circumstance in which there could be a political communication between parties who fall within the scope of 93X, and that is the extent to which political communication is affected, and that is not a substantial effect on political communication or properly affect upon the maintenance of representative government. So 75 is really a lead into 76, your Honour. Can I say, your Honour - - -

FRENCH CJ: I am sorry to interrupt. In Dias, Justice Mayo quotes an earlier judgment in 1934 - - -

MR DONALDSON: Yes, a South Australian case.

FRENCH CJ: - - - of Justice Gavan Duffy’s in the Argus Law Reports where he talks about – I mentioned this to someone yesterday – the innocent association, if you like, where you are both engaged in some place of employment on the one hand, and fraternisation on the other.

MR DONALDSON: Yes.

FRENCH CJ: Is that a valid distinction in this context between innocent association for say a political purpose and fraternisation constituting consorting, or does it all collapse into the one thing?

MR DONALDSON: Can I preface my answer to your Honour’s question by saying I do not wish to cut across the submissions which New South Wales have made in relation to the construction of the provision. But, your Honour, it occurs to us that the provision was intended to apply in the terms of Johanson, that is, the purpose for which people are together is irrelevant. I think that is an answer to your Honour’s question. So, if that is right, then political communication could fall within the operation of the section. One then gets to the second limb of Lange.

Now, if my friend, the Solicitor for New South Wales, is correct in relation to his construction argument you do not get into Lange, of course, and really if my friend is right in relation to his reading down contention, although you have to go through Lange, as Justice Gageler said yesterday, to get to reading down, it could be a pretty perfunctory trip through Lange to get there. But, your Honours, if one looks at the history of consorting laws in Australia, and as I have taken your Honours to Johanson, they were not limited - or consorting was not limited by purpose.

Your Honours, could I then move to what I think is – I think I have dealt with all of the matters that I was proposing to deal with, other than 2. These are our points 10 and 11 on the written outline. Could I say that in relation to this notion of what we have referred to as balancing and assessing, I think that Justice Hayne dealt with that matter in his Honour’s judgment in Monis, not only in the paragraph that we have identified, but also at paragraph 146. If I could take your Honours briefly to that, that is at 249 CLR 92, and the relevant passage is at page 154, paragraph 146.

I will not read out the whole of that passage, but that is a paragraph in which Justice Hayne squarely deals with what I suspect we falsely attribute to his Honour in our written submissions, or erroneously attribute to his Honour in our written submissions, that his Honour contends that when one gets to the final determination of whether a burden is undue, one can, if not careful, descend into what is referred to as balancing of incommensurables. I think that is the second part of the strict proportionality analysis that your Honour Justice Kiefel referred to earlier that we have not yet got to in this country and we would - - -

KIEFEL J: It is not the second part, it is the first and the second part, the balancing is between the two.

MR DONALDSON: Well, I am not going to repeat - - -

KIEFEL J: But you are right, the second bit is missing.

MR DONALDSON: I am not going to repeat my submissions, your Honour, in relation to that but we say that that analysis of balancing incommensurables is something that should be avoided, and is avoided, when the focus is upon the extent of the burden imposed by the law upon the freedom of political communication. We have – and I will not go through it with your Honours, we have dealt with this in some detail in our written submissions.

Could I deal, your Honour, with Justice Hayne’s other observation in Monis, and that is what we have referred to as the “death by a thousand cuts” notion. Justice Hayne in Monis dealt with that notion, and it is at paragraph 120 and that is at page 145, your Honours. Your Honour Justice Hayne in dealing with what we have referred to as that notion deals with it, of course, in the context of the first limb and this is why I said to your Honour a moment ago that, in our submission, when one gets to questions of the extent of the burden, whether the burden is too great or whether the burden is undue, those same questions arise really on the first and the second question.

Could I simply say in relation to the observation which Justice Hayne made at 120, with the greatest respect to his Honour, that observation is the difficulty, or highlights the difficulty that all notions of the severity of the burden or the extent of the burden must contend with. We have sought to respond to his Honour’s observation at paragraph 120 in our written submissions, but our answer in relation to this case, your Honour, is really this. If one looks at the scope of the operation of this provision, even if as a matter of construction it can apply to forms of political communication, the effect upon political communication would be insubstantial or slight or whatever term one wishes to use, and we say that, your Honours, really for this reason. Consorting laws of greater severity than this law have existed in all Australian States for decades, and they have not as a matter of fact given rise to any undue limitation upon political communication.

On that understanding, your Honour, it can be said that this law, which is more prescribed than that which it replaced, would similarly not have that effect, and as far as, I suppose, explaining that sort of notion with greater clarity, we commend to your Honours the concluding observations of Justices Crennan, Kiefel and Bell in Monis where their Honours considered the extent of the burden imposed by that law, and without reading it out to your Honours, it is largely at paragraph 352 at page 216 of the judgment.

A penultimate observation to Justice Bell in relation to an observation that her Honour made yesterday, we would accept, your Honour, that when the legislation the subject of consideration for Lange are electoral type laws, that there are almost inevitably going to be more difficult questions of degree or more difficult questions of the extent of the burden upon political communication when dealing with electoral laws. But in undifferentiated communication-type legislation or legislation that deals in an undifferentiated way with communication, they are almost invariably, in our submission, unlikely to give rise to invalidity.

Finally, your Honours, and this is to go back, I regret, in my outline, could I deal with one final matter and this is the notion of there being a less drastic or obvious and compelling alternative and that is, as we have characterised it, the necessity criterion in the proportionality-type analysis, but it is a question that is asked however one wishes to doctrinally approach these questions.

We have dealt with this in some detail in our written submissions, your Honours, commencing at paragraph 39, and I am not going to repeat what we have set out there. It is, in our submission, for those contending invalidity to contend for a more obvious and compelling alternative to the legislative choice that has been made by the legislature. My learned friend, Mr Reynolds, yesterday, your Honours, came up with some alternatives that I do not think have been addressed. Could I briefly address them without overextending my welcome.

They are at –if I could ask your Honours to have it at paragraphs 3.3 and 3.4 of my learned friend’s oral outline. Can I preface dealing with these matters, your Honours, with this observation. Of course, what my learned friend is contending here is each of these are less drastic, and/or more obvious and compelling alternatives that result in this legislation being invalid. So because there are these alternatives that my learned friend can point to, the effect of that is this legislation is invalid because there is a less drastic means of dealing with or achieving the object.

It might be thought that that is an odd submission for my friend to make, with respect, following his observation that the legislation could not be read down to exclude consorting for the purpose of political communication because that was too vague. We do not say anything about that, your Honours, but for my friend in one sense to say we cannot read down the legislation to exclude consorting for political purposes because that would be too vague, but here are alternatives that render –that are more obvious and less drastic that would render the legislation invalid is a difficult contention, or a difficult submission to make, with respect.

But if I could deal with them each quickly, your Honours - 3.3(i), if that means, your Honour, the provision of a more general reasonable excuse defence that means that it would be a defence if the purpose or effect of the consorting was to engage in political communication then the legislation can be read down and its validity maintained. Over the page, your Honour, that is the same point in (ii). The point in (iii) – well, that is just not consorting, your Honours. To send out a flyer, and this I think was Justice Keane’s question yesterday, for a political candidate to be sending out electoral communication to, let us say, 100 people, two of whom happen to be convicted criminals, it is simply not consorting, your Honours, and so the third of those options simply does not respond to the question.

As to 3.4, the first of those, your Honours, which is restricting consorting to convicted offenders, would not achieve one of the objects of the legislation which is to prevent recruitment by convicted criminals of non-criminals, and so if the consorting laws were limited in that way one of the objects of the legislation would not be effected. (ii) your Honours, well, we would simply say in relation to that that - and I know that this issue has

not been dealt with in detail, but there is a margin of error or appreciation to be accorded to, in our submission, the legislative choice made by the Parliament to achieve its purpose and that this legislation affixes upon one conviction, is within that margin, in our submission, and that, your Honours, is what we would say in relation to (iii). The point in relation to (iv), your Honours, if we are wrong in relation to the - our submission at paragraph 74 of our written submissions, that is as to the exercise of the warning power only being for a proper purpose, then that does not arise. If your Honours please.

FRENCH CJ: Thank you, Mr Solicitor. Solicitor-General for Queensland.

MR DUNNING: Your Honours, there are only two matters we wish to develop orally and as with the Solicitor-General for Western Australia, nothing, we submit, will be taken to in any way read down our adoption of the position taken by the Solicitor for New South Wales as to the proper construction of the legislation.

May we deal first please with the conception of consort because, in our respectful submission, the plaintiff’s case, at times expressly and certainly we believe throughout implicitly, treats those conceptions as synonymous? In our respectful submission, they are not and we would submit that for these reasons. Firstly, if we may take up that issue which Justice Bell took up really at the outset of the hearing yesterday, and that is at the time of this enactment the concept of consorting had a settled meaning in this country and, indeed, it had a provenance of about a century by that time, and the legislation will be properly be construed to that background.

Your Honours have been taken to the passages in Johanson of Sir Anthony Mason, also of Justice Aickin. Might I also take your Honours please to the decision of Justice Murphy? Now, as your Honours appreciate, Justice Murphy was in dissent. It is (1979) 143 CLR. May I take your Honours please to page 391, simply for the purpose of the reference to the decision of Chief Justice Stout in New Zealand in O’Connor v Hammond at the top of the page, and might I invite your Honours to read that quotation regarding the meaning of consort?

Whilst his Honour was in dissent, in our respectful submission, there is nothing to be discerned from the reasons of the members of the majority to suggest that they held any different view. It is really just giving some additional content to the association to which Sir Anthony Mason was speaking.

Might we refer to two other decisions which we passed up with our note of our oral submissions? The first is a decision of F.B. Adams, Justice, in Davis v Samson [1953] NZPoliceLawRp 10; [1953] NZLR 909 and may we take your Honours, please, to first of all page 912. His Honour had essayed what was a lengthy amount of evidence about a convicted person who had been dealt with for consorting shortly after being released from gaol. At about line 30 the following is recorded:

On this evidence, it would hardly be said there was consorting with C . . . and it has to be remembered that the incidents occurred within twelve days after the appellant’s release from prison, and during the alcoholic holiday after his labours there-a holiday devoted to hotels and, no doubt, prolific of casual encounters.

So, number themselves is not determinative. May we also ask your Honours please to go to page 914 of the decision? At about line 25, your Honours will see this:

He was consorting with such persons to some extent, but the word “habitually” is important: O’Connor v Hammond . . . and to quote the words of Macrossan, S.P.J., in Muller v Murphy . . . “I am doubtful . . . “whether his association was not ‘casual’ as distinct from ‘habitual’ “and whether the companionship was shown to have been ‘so constant “‘as to have become a habit’” -

In our respectful submission, that is a useful guide for determining what is and is not – or may or may not be consorting.

Finally, may we take your Honours, please, to the decision of Justice Gavan Duffy in this Court in Brealy v Buckley [1934] ALR 371? On page 372 in the first column at about point 7, your Honours will see:

A man habitually consorts with reputed thieves when it is his habit to be a companion of reputed thieves.

In our respectful submission, companionship is an integral part of the association which is consorting. It follows, in our respectful submission, that once consorting is understood in that orthodox way, it is apparent that not only is consorting not synonymous with communication but we would submit that it is to go too far to even submit that consorting will always involve communication. True it is it will typically involve communication. Indeed, occasions of consorting not involving communication one might think to be rare but might we give this illustration to indicate that they are not non-existent.

A and B routinely engage in some illegal street activity, selling narcotics, selling stolen goods, whatever you like. It has been their habit to turn up at a particular street corner on Friday and Saturday nights and people have come by to procure the illegal wares. C has noticed this, minded to get into the same business himself. So C turns up on Friday night. He does not speak to A and B. He does not ask their permission. He simply stands there. A and B do not say anything to him. They just suffer him doing it. He does it Friday night. He does it Saturday night. He does it for some weeks to come.

There has been no communication between them, yet undoubtedly after a period of time they are associated with each other in that regard and they are consorting with each other within the principal and orthodox meaning of that expression.

Might we then turn to the question of communications and what communications are not, in our respectful submission, to be properly characterised as consorting and, for convenience, might we adopt the examples that have already fallen during argument? Might we start with Justice Keane’s illustration yesterday of the person who turns up at a political meeting and there are present two people who have convictions and it is known they have convictions?

Now, in our respectful submission, that will not constitute consorting because there is not the relevant companionship that is a requirement of consorting. Those persons are present for the purpose of listening to the political discourse that is being run by others, so there is no consorting in that illustration and it must follow there cannot be any operation of the section and therefore any limitation on the political discussion.

The situation of letters being sent by a parliamentarian to constituents or even a prospective parliamentarian to constituents is an even more extreme example of communication that plainly cannot be consorting because it is just shorn of the necessary seeking and acceptance of association and the necessary companionship.

Might we then take up Justice Gageler’s illustration of.....two convicted persons and a third person who meet solely for the purpose of discussing anti-association laws and their validity or otherwise and their fitness or unfitness in a plural society? Let us say they are a subcommittee of the meeting that Justice Keane had posited. Again, in our respectful submission, that will not constitute consorting. Properly characterised that meeting is – and, in our submission, so posited solely for the purpose of discussing that issue. It is again – or sorry, again, what is absent is the relevant connection of companionship and association and acceptance of association in the circumstances in which the cases describe it.

Might we then finally go to Justice Hayne’s illustration of the footy tipping and that is that you could have consorting for footy tipping, but not consorting for a discussion about the propriety or otherwise of these laws. We would accept that consistent with the authorities as ourselves and others have described them to your Honours that may constitute consorting but if and only if what can be seen in that meeting is the necessary association and acceptance of association and companionship with it.

Now, if that were present then it would bear that characteristic, but in a sense the footy tipping would become part of a broader relationship between those parties that would constitute the consorting and if, of course, they, in effect, went into the business of football tipping their connection, even if it had previously been consorting, would effectively cease to be consorting because they would not be associating for the purpose of companionship. They would be now associating for another purpose.

KEANE J: Well, another way of putting it would be to say that the nature of the association has changed.

MR DUNNING: Yes, your Honour, that would be - - -

KEANE J: In a sense, when you look at the old cases about consorting, there is the constant emphasis on seeking out and effecting a personal relationship, a personal companionship. One of the judges spoke of it as fraternisation or comradeship. In a sense, where the freedom is concerned with public matters, matters of governmental or political interest, it is difficult to see that an association in relation to matters of political or governmental interest has, in its nature, that degree of personal intimacy that seems to be involved in consorting, particularly when one bears in mind that the vice of the consorting is personal influence with a view to recruiting or extending criminal networks.

MR DUNNING: We would respectfully agree entirely with that, that in reality there are two things running in parallel here, which for the plaintiffs to succeed must intersect and they do not. On the one hand, there is the protection of the public, rather than personal right, to freedom of communication in support of responsible and representative government, and on the other hand the curtailment of certain personal freedoms in the form of the consorting laws, focused, as your Honour has just pointed out, on matters that are closely and directly limited to certain individuals, and not engaged by - - -

KEANE J: And their immediate personal relationship.

MR DUNNING: That is right, that is exactly so. Justice Gageler - - -

GAGELER J: The moment has probably passed, but you were making the submission, as I understood it, to the effect that an association for a business purpose, if that is presumably the dominant purpose, will not amount to consorting because it will not have the necessary personal relationship that you posit as an aspect of consorting. How does that square with the existence of section 93Y, particularly paragraph (b), which deals specifically with a business association?

MR DUNNING: There are aspects of 93Y that are not perhaps easily reconciled with the accepted meaning of consorting inasmuch as they appear, in part, to cover matters that would not be consorting. Now, we stress that we would not wish to be heard to read down or contradict anything the solicitor for New South Wales puts on the topic. We would understand section 93Y as potentially both expanding the protection against a finding of consorting, say in respect of family members, and otherwise perhaps just being declaratory of the commonly accepted meaning of consorting; that is, some of the things that are described as consorting there do not appear to be consorting properly so called, the one your Honour has just referred me to is such a one.

GAGELER J: It is difficult to treat it as declaratory, is it not, if it creates a true defence where the onus is on the defendant?

MR DUNNING: Yes. Yes, it is. Your Honour, I would like to give a simple answer to an area of apparent tension there, but it seems to exist and I cannot really recoil from the fact that it does. But, in our respectful submission, no matter what, it cannot inform what the meaning of “consort” is when one looks at the circumstances in which 93X is enacted and the long provenance of the concept in this part of the world. I regret that is not a complete answer to your Honour, but I think it is the best answer I have.

GAGELER J: Thank you.

MR DUNNING: Your Honours, it follows, in our respectful submission, that the threshold requirement for a Lange challenge just does not arise here because that which is complained of as offending the implied freedom simply would not come within the concept of consorting.

Can I then move to the other topic which we wish to canvass orally, and that is the expression “effectively” in the first limb of Lange. Your Honours have been taken to the passages in Lange and I do not intend to repeat that. There is one passage your Honours have not been taken to though that we would like to take your Honours to. Can I ask your Honours please to take up Lange [1997] HCA 25; (1997) 189 CLR 520 and may we ask your Honours, please, to go to page 565 and, your Honours, at about point 7 or 8 on the page, your Honours will see a paragraph that starts “The factors which affect”. Can I invite your Honours to read that paragraph first?

In our respectful submission, it reflects the fact that the freedom, implied as it is, is one that is in effect pragmatic in character, that is, one looks to real rather than imagined burdens on the freedom. Now, if they are real – and as Justice Kiefel has pointed out, the test for that is a relatively low test, but it is something beyond obviously insubstantial. It is, as the Court formulated it in Lange and has not moved away from since, something that effectively burdens. So any trifling burden will not be sufficient.

Our learned friends, particularly for New South Wales and Victoria, have taken your Honours to Monis and Unions NSW, so I will not repeat those submissions, but we would adopt as useful for informing the content of “effectively” those passages that your Honours were taken to and our learned friend, the Solicitor for South Australia, took your Honours to the Adelaide City Corporation Case and in particular Justices Crennan and Kiefel’s passage at paragraph 220, which again we would adopt for the purpose of this submission.

Might we then though also ask your Honours please to take up the APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322, and we take your Honours to these passages for the purpose of informing what is something that amounts to an effective burden. May we first start, please, with the joint judgment of Chief Justice Gleeson and Justice Heydon at page 350 in paragraph 27 and can we particularly ask your Honours to note these passages. In about the third line or fourth line:

The source of that requirement throws light on the content of the expression “freedom of communication about government or political matters”, which was the expression used in the following sentence in Lange.

Then in the second-last line on that page:

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.

Then we draw attention to how their Honours go on to explain that in 28 and 29, where they say:

The possibility that an advertisement of the kind prohibited by the regulations might mention –

We emphasise the expression “might mention” –

some political or governmental issue, or might name some politician, does not mean that the regulations infringe the constitutional requirements. The regulations do not, in their terms, prohibit communications about government or political matters.

We would respectfully say that those comments really apply by – but reasonably I should more accurately say – applies by analogy to the legislation with which we are presently concerned.

CRENNAN J: Looking at the first sentence in paragraph 29, is it your submission that restrictions on consorting with criminals are not incompatible with a system of representative and responsible government? Is that how you put it?

MR DUNNING: Yes, your Honour. I was going to draw attention to that passage and might I also draw attention to the sentence immediately above that, the last sentence of 28:

The regulations are not aimed at preventing discussion –

and it goes on to give some illustrations of matters that would be of a sufficient political character to bear upon representative and responsible government. Then in the last sentence of 29, their Honours talked about what a “long bow” it was to:

claim that restricting their capacity to advertise for business is incompatible with the requirements of responsible and representative government –

and we would respectfully submit that the same long bow is present here. It is just not realistic to think, we would respectfully submit, that consorting laws, which as the Solicitor for Western Australia made the point, have been around for a long time and have been not seen to operate in a way that has so burdened political discourse in this country are likely at all to have any such effect. Might we then ask your Honours please to go to - - -

HAYNE J: Well, can I just ask you this about that proposition? Does the prohibition on consorting prohibit the making of political communications while consorting? That is the effect of the prohibition on consorting, is it not?

MR DUNNING: Yes, it is. Our answer to your Honour’s question is yes, but may I add something to that answer? We would respectfully submit that the occasions on which there would be such political discussions in the course of consorting would be rare in the extreme and really at the theoretical level because typically the discussions in question, even with people who would otherwise meet the statutory criteria, are just so unlikely to fit within the meaning of “consorting”.

HAYNE J: I pass by the stereotyping that is implicit in all of that, Mr Solicitor, and ask whether the provisions in issue constitute a prohibition which can, not must, can preclude certain kinds of co-operative political communication.

MR DUNNING: My answer to your Honour’s question is yes.

HAYNE J: Is that not a sufficient answer to require the conclusion that question 1 of Lange is satisfied?

MR DUNNING: In our respectful submission, no, because if it is properly to be characterised as remote rather than real it would not constitute an effective burden.

HAYNE J: Well, that is then, is it not, to substitute for the test captured in the second question of Lange a different test applied at the first stage of the Lange inquiry? Is that right?

MR DUNNING: In our respectful submission, no.

HAYNE J: The proposition that I put to you for your submission is that the developed test we see as the second stage of the Lange inquiry is supplanted by this first little burden analysis that you urge.

MR DUNNING: We would respectfully submit no and the reason we would make that submission is it is to recognise the fact that there needs to be some burden, as discussed in exchange by my predecessors with Justice Kiefel, a low threshold, but nonetheless, there has to be some effective burden because, in our respectful submission, the reason it is not supplanting it is otherwise the first test in Lange would have insubstantial, indeed, with respect, if any application.....purpose for taking your Honours to the decision - - -

HAYNE J: Why, when it directs effect to the practical effect of the law in question? Is that not a test of substance?

MR DUNNING: Your Honour.....it being a test of substance, we are endeavouring to make the submission that a test formulated as an effective burden requires content to be given to the expression “effective” and to be informed as to what does or not does not constitute an effective, as opposed to any burden.

HAYNE J: Is your submission consistent with what was said or assumed by all seven Justices in Levy? You will find references in my judgment in Monis. As is implicit in the question I put to you I suggest that your submission is contrary to what was said in Levy v Victoria.

MR DUNNING: No, with respect to your Honour, we are not meaning to put the position any differently or inconsistently with the holding in Levy. We are seeking to do no more than explore the content of this notion of effective burden.

GAGELER J: The difficulty we have in this case that was not encountered in Levy is that we do not have any facts. At least in Levy there was some political communication in the form of protests against the duck shooting. Is it the reality that one can quite easily postulate different sorts of associations where the effect of the law is going to be significantly different in the burden that it places on political communication? If you have an association that is for political purposes, then the effect of the law will be much more dramatic and direct than if you have an association that is for some other purpose, indeed, any other purpose, in which political discussion might occur, at best, incidentally. It seems to me that the two sides of the argument in this case are really hypothesising different facts, none of which are before the Court. That is really a comment; you can deal with it as you wish.

MR DUNNING: That, respectfully, is correct, your Honour, but in terms of what particularly those parties who oppose the relief sought, all I can really do is work with the facts that have been produced, and it is a relevant consideration that there is no basis here for saying that there was any political discourse on the occasions the subject of the charges.

CRENNAN J: But you accept, I think, in answers given that the operation and effect of the law is it is conceivable that it would preclude persons who might wish to discuss political matters with convicted offenders from doing so.

MR DUNNING: Conceivable, your Honour, yes.

KEANE J: And while that is conceivable, while that might conceivably happen, they might not be able to associate with each other, insofar as their association is effected by these communications. That would not be an effect of burden on political communication conceived as the flow of political communication generally through the Commonwealth. The fact that a couple of individuals might not be able to get together for the sole purpose of talking about who they are going to vote for at the next election, they happen to be criminals, does not really impede political communication throughout the Commonwealth since they are open to talk to other people about it.

MR DUNNING: Indeed, your Honour, we would agree with that, and I hope not at the risk of overstepping it, go a little further and say that not only would it not impede political discourse throughout the Commonwealth, but nor would it be to prevent them from ever being able to discuss these matters. They would only be prevented from discussing these matters if they wish to do so at a time when they were consorting. So if these matters were important to them to discuss, accepting it is not a personal right - - -

KEANE J: And if their consorting consisted only in these discussions. I mean, if they happen to be consorting because they are consorting, and in the course of that they talk about who they are going to vote for next week, there is no law that prohibits them from talking about that. They are not committing an offence because they are talking about who they are going to vote for next week, they are committing an offence because they are consorting for reasons other than those communications.

MR DUNNING: That is exactly right, and I hope I am not being repetitious, but it is in that context that I agree with Justice Crennan about the conceivability – and it would be Justice Hayne – of circumstances where the provision might prevent somebody engaging in discussion, but it only prevents them engaging in the discussion for so long as they want to consort. It does not prevent them from discussing the matter, full stop. So they could pick an occasion that was not consorting in which to discuss the matter, and if their sole purpose for meeting was, say, to discuss ways in which legislation like this might be challenged as impolitic, then we would submit that that would not be enough to constitute consorting anyway.

CRENNAN J: This is picking up, I think, on paragraphs 14 and 15 of Victoria’s submissions, and paragraph 30 of New South Wales’ submissions.

MR DUNNING: Yes, it is. Your Honours, might I then just briefly take you to a couple of other passages in APLA? Can I ask your Honours, please, to take up Justice Gummow’s reasons? His Honour’s analysis of this issue starts on page 402. At paragraph 214 he records the fact that the first test in Lange was not met. At paragraphs 216 and 217 his Honour records certain of the plaintiff’s submissions. At 218, can we draw attention to this:

a communication within the first limb of Lange might be combined with an advertisement proscribed by Pt 14, but it would be the material promoting the availability of legal services, not the communication about government or political matters, which attracted the prohibition.

which, Justice Keane, is really an illustration of the point that you and I were discussing just a moment ago. Then three lines from the bottom of that paragraph -

However, the addition of such further material in a proposed publication does not deny to the balance the character of an advertisement which may validly be proscribed by Pt 14.

Then in paragraph 219 -

These submissions by the State should be accepted. So also should be the reliance by the State upon what was said in Cunliffe.

Then if we go down there was an explanation of the prohibition in Cunliffe. Then four lines from where the quote starts on that page -

Such a provision was not expressed as a restriction on political discussion, nor in its practical operation did it do so -

again, we would emphasise the expression “practical operation” -

Brennan J observed in Cunliffe (in a judgment which was influential in the formulation later adopted in Lange) -

and quotes Sir Gerard Brennan -

“To control the giving of immigration assistance or the making of immigration representations is not to impose a restriction on political discussion. The immunity from legislative control which the Constitution implies in order to secure freedom of political discussion does not preclude the making of laws to control any activity the control of which might be politically controversial.”

Then Justice Gummow quotes further from Justice Brennan -

“To some extent, Pt 2A may inhibit communications between a citizen and an alien but the freedom to be implied from the terms of the Constitution is not a general freedom of communication.”

Might we then take your Honours please to - - -

HAYNE J: Well, is it - - -

FRENCH CJ: The distinction drawn there between advertising and making political comment is a conceptual distinction that is relatively easy to understand. The difficulty here is that the concept of consorting may embrace a mode of political activity. In other words, it may be more than people just coming together at a meeting. It may be you have a group of people forming an action group of some kind.

MR DUNNING: Yes.

FRENCH CJ: And what they are doing by way of political activity may also be characterised, on your submissions, as consorting.

MR DUNNING: If it met the necessary requirements of companionship in that case, obviously, the requirements of association would be met.

FRENCH CJ: Well, that is right. It is not unusual for people in political groups to have some degree of companionship, at least pro tem.

MR DUNNING: Not at all, but we would respectfully submit, the distinction is this. Where they are simply meeting in a meeting that is organised to rile against provisions like this, they are not consorting with each other.

FRENCH CJ: You are describing a one-off situation, are you not, rather than a habitual one?

MR DUNNING: Well, if we were to take a regular meeting, a meeting that occurs monthly or weekly, the meeting itself, in our respectful submission, would not be consorting if it is a group of like-minded people discussing the issue. If some of those people meet outside in the car park routinely afterwards, well, that would meet the characteristic of consorting.

CRENNAN J: But then Mr Howe would say you are depending on the goodwill of the police in relation to the application of the law.

MR DUNNING: To which we would respectfully respond, you are simply determining as a fact, as one must in each case, what had occurred. It is always a risk of any law consorting amongst them that the police might charge erroneously, might even charge improperly but, in our respectful submission, that cannot be a reason to read it down.

HAYNE J: Now, we need to read APLA, do we not, against the background that it concerned a prohibition against a communication with particular content?

MR DUNNING: Yes, yes, you do - - -

HAYNE J: The content that it prohibited was not political content.

MR DUNNING: That is correct, your Honour, yes. May we then take up Justice Hayne’s decision in APLA? The discussion starts on page 449 and may we ask your Honours please to go to paragraph 379 on page 450 and can we draw attention particularly to these passages in that paragraph:

Accepting that there are these connections between political controversy or debate and some questions about person injury litigation or some particular pieces of litigation does not mean that the impugned regulations effectively burden the freedom of communication about government or political matters –

and then there is a discussion by your Honour about what the impugned regulations in fact precluded, and then if we may draw particular attention to the sentence that starts about seven lines from the foot of the page:

That is, the impugned regulations take as the legal (and practical) focus of their operation the publication of communications about events that have happened or might happen –

Now, factually, we accept the distinction but, in our respectful submission, the point of inquiry that is referred to there is relevant to the instant case. Then may we take your Honours please to paragraph 380? Justice Hayne refers to Justice Brennan’s decision in Cunliffe and says of his Honour’s reasons:

it is necessary to distinguish between laws controlling an activity and laws restricting political discussion about whether that activity should be controlled.

Then down about four lines -

They are not directed at communications about whether the happening of events should be regulated differently -

and goes on to hold that they did not inhibit the freedom. Then in 381 in the second sentence -

It follows that, in deciding whether the freedom has been infringed, the central question is what the impugned law does, not how an individual might want to construct a particular communication -

Again, we would respectfully submit that when one applies that approach in the instant case it does not appear to offend. Finally, may we take your Honours please to paragraph 382 and there were some references to the fact that one of the advertisements had wanted to refer to former New South Wales Premier Bob Carr and former Senator Helen Coonan and Justice Hayne says about halfway through the paragraph:

That would be an advertisement which was to be understood as also making a political point. 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.

Then may we finally take your Honours, please, to Justice Callinan’s reasons starting on page 476? Can we direct your Honours’ attention, please, to paragraph 448 on page 477 where his Honour, after having set out the passage in Lange, said that it provoked “these questions”, the first is:

what is a “government or political matter”; how is the communication in question to be characterised –

Then in 449 in the last sentence:

But there must, in the practical world, be some limits.

Then in 450, in the last sentence:

If there were no practical limits to the freedom expounded in Lange the concept of government or political matters would be absolute and unbounded, as wide as, or even wider in open than, the First Amendment –

Then in 451, in the second half of that paragraph:

The qualification is that, for the purposes of the freedom, a government or political matter must, in effect, be of real significance to the election of parliamentarians –

Then again in paragraphs 452 and 453 his Honour returns to - - -

FRENCH CJ: So what proposition are you taking from these passages?

MR DUNNING: Your Honour, the proposition that we take from these passages is - - -

FRENCH CJ: Justice Callinan’s judgment.

MR DUNNING: Your Honour, I do not go as far as to say that that real is the test, that the test is effective. The point of taking your Honours to Justice Callinan was to demonstrate that a majority of Judges in that case in determining that there was no breach of the first limb in Lange approached the matter in the way they did. Your Honours, that leaves with the ultimate submission in this regard, that for there to be an affirmative answer to the first test in Lange the posited burden must be a practical one rather than a theoretical one. Unless we can assist your Honours any further, they are our submissions.

FRENCH CJ: Thank you, Mr Solicitor.

MR DUNNING: Thank you, your Honours.

FRENCH CJ: Mr James.

MR JAMES: If your Honours would look at the section, or the sections, and their general content, the law itself plainly seeks to deter those to whom it speaks in respect of being persons with prior convictions or persons who might consort, associate, with those with prior convictions, from the consorting, including the communication by any means, except in the contexts set out in 93Y by way of specific contexts.

So it strikes and chills political discourse, amongst other things, at three points: firstly, by the very existence of the law; secondly, by the warnings; and, thirdly, by the prospect of conviction. Those who accede to the warning and do not habitually consort thereafter with the persons nominated in the warning, who do not seek review, who do not go to the issue of defending proceedings which might result in a conviction, are effectively deterred from political discourse as much as those who might be convicted, if not more so.

So our submission is that it is construing the section too narrowly to merely say that you might well be convicted if in your consorting you incidentally embarked on political discourse and that therefore the section could not be seen as having offended the Lange principles.

We do not seek to reiterate what we said in our original submissions, our submissions in reply, in our written outline of oral argument and in what we have said orally, but we do say that “consorting” cannot be read down to exclude political discourse, certainly not in all the manifestations that consorting can take.

The process with the warning leaves open to the individual police officer for whatever cause the opportunity to stifle political communication. It is not to the point that the general flow of political communication might not be affected by the opinion of one elector. It, of course, might well depend on who that elector is – a leader of the opposition, or a person whose views are accorded wide respect might well have the ability to affect the general flow of political discourse and communication but, in our submission, we do not have to go so far as to propound that. What we are looking at is the direct effect the application of the Act can have in relation to the circumstances it prescribes.

GAGELER J: Can have or does have?

MR JAMES: Does have is perhaps a much better way of expressing it. It has a direct legislative effect. We do not have to take it through to the specific factual exercise because it clearly falls within the ambit of the legislation. The Chief Justice raised the question of whether consorting had ever been used in relation to political parties or associations in Australia. We have been unable to find that it has been in itself.

There is some discussion of similar concepts in the Communist Party Case [1951] HCA 5; (1951) 83 CLR 1, particularly in relation to the role of the Governor-General, the executive role in relation to individuals and their participation in political activities. There does not appear to have been – as far as I have been able to ascertain – anything in relation to particular unions including the Miners Union, though during the disruptive days many, many years ago instead of the consorting laws which were in existence in New South Wales being applied, there was a statutory amendment to provide for a summary offence of riot rather than the indictable offence. I should also point out that - - -

GAGELER J: Mr James, could I just ask is there any evidence that you are aware of of the existence of consorting laws having a chilling effect on political activity?

MR JAMES: That takes me more into a social history regime in which I would not constitute myself as having any authority to view, your Honour, but, certainly, I have a recollection as the best I can say of reading history to suggest that during the depression in New South Wales in relation to eviction matters associations were formed to resist eviction, particularly in areas of Sydney such as Redfern and Surry Hills, and that consorting laws may well have been applied to them.

GAGELER J: So, what are we to do with your submission of the existence of a chilling effect of this law, is it simply an assertion?

MR JAMES: No, it looks to what the law is designed to achieve. It is designed to achieve a lack of association of a particular kind between persons of a particular kind, including criminals, former criminals and others who might be innocent, and to preclude communication by any means, no matter how remote. That is plainly intended, as we put in our initial submissions, to embrace all kinds of discussion and activity, whether discussing the State of Origin on the one hand, or discussing parliamentarians going out to lunch, or discussing a measure before the Parliament’s desirability, it is all intended to be embraced within it. In our submission, you cannot read “consorting” down so far as to exclude political communication and discourse.

KEANE J: But it is fair to say, is it not, that in the various legislative regimes directed to controlling combinations or industrial associations or political associations there are not any cases where those regimes of control have proceeded by reference to consorting and offences of consorting?

MR JAMES: Consorting as such I cannot say, your Honour. I can say that your Honours will find as an addendum to the Ombudsman’s report provided in the case of Mr Forster some tables setting out the current consorting legislation throughout Australia. Most consorting legislation refers to a particular kind of association in the sense of with reputed thieves, prostitutes, houses of ill repute and so forth rather than a generalised proposition concerning consorting.

The offence of conspiracy in fact had its genesis in a combination for, in effect, what we would now regard as an industrial or trade union-type purpose, a combination which was seen to have economic consequences. The Poulterer’s Case and so forth all gave rise to what we would now regard as issues that impacted on politics. There is no reason to suggest that consorting had not or could not be used as an offence to criminalise conduct of a political kind.

BELL J: Quite apart from the consorting laws, when one looks at various mechanisms that have as their intent the impeding of criminal activity, restrictions are placed on the capacity of one individual to associate with others. It happens with bail, it happens with parole, it happens with orders controlling certain sexual offenders upon release and the like. All of those have the capacity to limit an individual’s communication about matters including governmental and political matters. Is there a distinction that you draw between the consorting laws and those other mechanisms, or are they all bad for the same reason?

MR JAMES: No, they are not all bad for the same reason. Again, one has to look at what is intended to be embraced by it. Where, for instance, persons are charged with a conspiracy to achieve an unlawful end or a lawful end by unlawful means, and in the process there is discussion of political activity that does not save Guy Fawkes because the political activity concerned in that, in the criminalisation of it, is in fact the very criminal activity which is involved in the conspiracy.

BELL J: Well, that is at one end of the continuum.

MR JAMES: Yes.

BELL J: What about the person not convicted on bail who is subject to conditions restricting their association with other individuals?

MR JAMES: In that context under a restriction not to communicate with other individuals as to matters of political or governmental significance my submission would be that that term of bail could not survive.

HAYNE J: But what about the ordinary parole case of the parolee who is forbidden as a condition of parole from consorting with convicted offenders?

MR JAMES: Usually the condition – at least usually the condition is not that wide. There are nominated persons. There we at least have a judicial figure setting the parameters in terms of the nomination, whether it be a parole board, magistrate or a judge.

HAYNE J: Sometimes, but ultimately a proposition that your side of the record has to grapple with is this, is it not, that the end or object of the legislation appears to be prevention of crime? The means by which that end or object is pursued is by proscribing what for brevity I will call the sought out association with convicted criminals. Why is that end and object pursued by those means not compatible with the maintenance or enhancement of a system of representative and responsible government?

MR JAMES: Because included in that means for this purpose is such a ban on communication as to preclude the individuals concerned from pursuing their role as members of the people in that system of responsible government effectively. That is the only answer we can make to that. It is not, in our submission, for the purpose of the free flow of political communication to exempt thereout certain of the electors and Roach, in our submission, dealt with that very prospect.

CRENNAN J: There is still a lot those electors can do, which is a point made against you - - -

MR JAMES: No question. But to say there is a lot those electors can do accepts that there is a lot that electors cannot do. It puts us in the position of saying this is what you shall not do, it impedes the free flow. Your Honours, if there were the defence with the onus on the accused to prove on balance of probabilities that the occasion was an occasion on which political discussion would occur, such that the freedom would not be burdened, then that would be one thing. But that defence has been eschewed. What is left is occasions on which discussion might occur, but nothing by way of protection of the content and of the role of the persons concerned as members of the people in the exercise of responsible government.

If there were to be a reading down, how could it occur in relation to consorting? Our submission is it cannot occur such as to exempt out of the notion of consorting, whilst consorting, discussing matters that relate to political communication. It could be that one could – one cannot really see room for severance here – it could be that the absence of the defence could have the defence substituted, but how to read in to the concepts in the section the protection of political communication and how to do so without the court itself, in effect, drafting a defence which is, in our submission, outside the ambit of reading down or severability - - -

FRENCH CJ: Do you accept that a warning notice could not validly be issued, or a warning could not validly be given for the purpose of impeding or impairing political communication?

MR JAMES: No, your Honour. The warning notice is simply given for the purpose of precluding discussion, all communication, all association of a habitual consorting kind. The idea that it might be given entirely independently of that, but limited to or focusing on a dominant purpose of or a purpose of political discussion is outside the Act. It would not be a warning for the purposes of the Act.

FRENCH CJ: It would not be a valid warning.

MR JAMES: But it is effectively unchallengeable because judicial or administrative review is not instant and, indeed, may require the matter going right through to hearing before there is any effective mechanism. Secondly, if it is complied with, it stills political discussion amongst those involved in any event. So to repose in those to whom the warning is given a responsibility to determine the validity of the warning where the warning itself has no content as to the content of communication is to produce a regime which from a practical viewpoint has an effect on stilling political communication. Your Honours, I do not think that I can put the matter any higher.

I should point out, of course, that 93X does not simply create a summary offence to be dealt with before a magistrate. It creates an indictable offence which at the election of the Director of Public Prosecutions can be prosecuted before a jury. Unless I can assist your Honours any further, they are the submissions that we would make in reply. There is nothing further I wish to say except to return your Honours to what we had said in our written submissions at the outset, in reply and in the written document in respect of oral submissions.

FRENCH CJ: Yes, thank you, Mr James. Yes, Mr Reynolds.

MR REYNOLDS: Your Honours, Mr Sexton, as part of his submissions, submitted that the number of the offenders was a relatively small group. We have dealt with this to some extent in our reply on page 2 at paragraph 4 where we have submitted that the court is not in a position to make that assumption. We have somewhat cheekily footnoted a reference to the consorting issues paper which notes that there were nearly 200,000 persons in New South Wales who came within the definition of “convicted offenders”, but there are, of course, difficulties about your Honours relying upon that. The bottom line is probably, we submit, that the court is no in a position to make any assumption at all about the number of offenders.

The second matter that I wanted to raise is this, that my learned friend, the Solicitor-General for Victoria, took your Honours to the APLA Case, that is APLA Limited v Legal Services Commissioner [2005] HCA 44; (2005) 224 CLR 322 and he took you to paragraph 27. One matter that is significant in that paragraph which he did not mention is that Chief Justice Gleeson and Justice Heydon in that paragraph referred to the expression “freedom of communication about government or political matters” and said that the meaning of that expression was imprecise.

Next, my learned friend, the Solicitor-General for New South Wales, made some reference to reading down. Can I give your Honours one reference which your Honours have not been taken to and that is in the decision in Monis (2013) 249 CLR 92, paragraph 76. Your Honour the Chief Justice, citing Pidoto, refused to read the provision down and Justice Heydon at paragraph 236 agreed with your Honour.

GAGELER J: But, Mr Reynolds, if the word “consort” can be read down to exclude an association for political purposes, is there anything left of your argument?

MR REYNOLDS: It could be. Probably not, it could be. The difficulty is with whether it could be, we submit.

HAYNE J: The consequence of a reading down though would be, would it not, that the prosecution at trial would have to prove that it was not for political purposes? It would not be a matter of defence, it would be an element of the offence, I think.

MR REYNOLDS: I think that is right, yes, I think your Honour is right.

HAYNE J: I think Woolmington bites.

MR REYNOLDS: I accept that, I accept that. The difficulty is with the initial premise. My learned friends, the Solicitor-General for South Australia, and this morning, the Solicitor-General for Western Australia, have taken up the cudgels with me on paragraphs 3.3 and 3.4 of my outline where I attempt to point to reasonably practicable, less restrictive alternatives and I have responded to what they had to say, if your Honours can perhaps have my document, that is, my outline, to hand, so that I can remind you of what I have suggested.

Dealing with them in the order of 3.3(i) and following, we have referred first of all to a reasonable excuse defence which your Honours see from the footnote has a respectable provenance in this kind of law. The Solicitor-General for South Australia said, as I understood it, it was easy for a person who had been warned to contrive evidence that would support a defence like that.

We submit that that kind of risk, such as it is, is going to exist with most of the exemptions your Honours see in section 93Y, particularly if your Honours go to paragraphs (b) and (c) which talk about the lawful operation of a business or the course of training or education. That risk is to some extent also obviated by placing the onus of proof on the defendant, as is the situation in section 93Y. Secondly, we have suggested in paragraph (ii) of 3.3:

the provision of a defence (or defences) relating to core political discussion –

If it is convenient, if I can just go back to (i) for a moment? My learned friend, the Solicitor-General for Western Australia, said this morning that this was covered by a reading down, but the issue of reading down only arises, in my submission, after the provision has been found, at least prima facie, to be invalid under the second limb and the argument, of course, that I am addressing is under that second limb.

Going back then to (ii), namely, a defence in relation to what we have called core political discussion, and Mr Hinton said, well, it is difficult or impossible to frame a workable defence. Well, I think I had referred to this previously in-chief, but can I remind your Honours in the Corneloup Case or Attorney-General (SA) v Adelaide City Corporation [2013] HCA 3; (2013) 249 CLR 1, paragraph 164 there are very specific and, we submit, workable defences referred to in that paragraph. For example, at the top of page 73 of the report, this is in paragraph 164, there is reference to:

handbill or leaflet given out or distributed by or with the authority of a candidate during the course of [an election] or to a handbill or leaflet given out or distributed during the course and for the purpose of a Referendum.”

So we submit it is by no means impossible to frame defences of that kind, particularly in relation to core electoral material. Now, in relation to (iii):

the provision of a defence for written (or similar) communications which are sent to (say) 30 or more persons -

for example. My learned friend, Mr Hinton, said that that would not amount to consorting. We submit it is to put the matter too high. Some handing out of material of the kind that we referred to may well take place in the context which amounts to consorting, and also the provision of that defence would operate in a similar way to section 93Y which, as I think your Honour Justice Gageler pointed out to one of my learned friends, may include matters which would not otherwise be treated as consorting. So that the permission, as it were, granted by the additional form of defence which we articulate would, we say, operate in a similar way to some of the provisions in section 93Y.

Now, it was interesting, we submit, that from your Honours’ point of view, that the solicitors, particularly New South Wales, have not really said much about paragraph 3.4. The only response, as I understand it, to that paragraph has been today from the Solicitor-General for Western Australia, and as I understood his submissions in relation to paragraphs (i) and (ii), he stressed the notion of margin of appreciation, and in that context can I just remind your Honours briefly of the reference I gave your Honours yesterday to the Unions NSW Case in (2013) 88 ALJR 227 at paragraph [45] which discussed that issue.

In relation to paragraph (iv) he referred to the proposition that the exercise of the power to warn must be for a proper purpose, but if your Honours look at (iv), what we have articulated there is requiring the police to form the view that it was reasonably necessary which is a different concept, we submit.

I think the next matter I would like to deal with is the submission that was made at some level by a number of the interveners, but particularly by South Australia and I think to a lesser extent by New South Wales, that political communication will not amount to consorting, in effect that these are mutually exclusive categories.

Now, I would submit that the fallout effectively of the argument and the exchanges with your Honours has reached the point where it is pretty much agreed that some forms of political communication will amount to consorting and some will not. To that extent, in paragraph 4.2 of our outline in (i), I have to accept that the words I have put in brackets are inapposite and should be deleted. We have gone a little too far in that respect, but also we submit my learned friends have as well and, as I think I said yesterday, in paragraph 4.3 of our outline the word “communication” in (ii) at the end and (iii) in the first line have to be read down so as only to cover communication which amounts to consorting.

The final matter that I wanted to deal with is the issue of the judicial reviewability of the statutory power to warn and effectively what I wanted to put to your Honours is this, that the effectiveness of the - or the reviewability, the extent of reviewability, of the exercise of that statutory power is a matter which your Honours may care to take into account in relation to the second limb.

Now, we would concede that to some extent the statutory power to warn is judicially examinable but – and my learned friend, Mr James, touched on this – can I just develop his point a little bit about some of the difficulties that would arise, both legal and practical, in that regard. Obviously there is not any merits review or any form of statutory judicial review of the kind your Honours see in some of the States and in the Commonwealth area, nor, if we are talking about the power to warn, would there be any duty to give reasons. As the statute itself notes, the warning may well be oral – there is no need for there to be a form of written warning. There may well be no record. There may well be no documentary material, all of which create difficulties from the point of view of the citizen, the subject of warning.

There is one other aspect, too, that I would like to stress, and it is this. When we talking here about the possibility of the prevention of crime and information in the hands of the police we are in the area necessarily of the possibility of claims for public interest immunity which are covered, so far as New South Wales is concerned, by section 130 of the Evidence Act, but can I trouble your Honours by giving you briefly a reference to the Australian edition of Cross on Evidence at paragraph 27,100 following, which talks about the issues that arise there in relation to police investigative and intelligence material.

Now, of course, this is all over and above the difficult situation in which a citizen may be placed faced with the exercise of a broad discretionary power and a decision to embark upon the expense and inconvenience of a judicial review application flying, to a large extent, blind, given the likely non-availability of material.

The final thing that I would stress in that regard is that we are dealing here with obviously a power to warn. Where this issue of exercise of a statutory power conformably with an implied freedom has arisen previously in this Court’s jurisprudence it has tended to be not with a power like that but with a power, say, to permit, which was the situation in the Wotton Case, or to impose conditions.

Looked at from the point of view particularly of a junior police officer on the beat, and of course any police officer can give a warning, it is, we submit, difficult, leaving aside a straight improper purpose argument about how that power would be exercisable conformably with the implied freedom. That is an issue which gives all of us, I suggest, some difficulty. Looked at from the point of view of a policeman on the beat it is a very real difficulty indeed.

That leads me to the final point that I wanted to make, which was this, that just as there has not been a lot of response to the suggestions we have made about reasonable alternatives there was not any response either to quite an important suggestion which my learned friend, Mr Lowe, made about a reasonability practicable alternative, and I mention this following on from what I have just mentioned about a power to permit.

What he suggested was is that the power to warn could be made the subject of a power to permit or exempt from the operation of a warning. Now, that could be done either in a general form, that is a general power to permit some communication, or it could be a power to provide permission in relation to a form or forms of political communication.

Now, if the power to warn included the power to grant that permission and if I add further that if that power were made, for example, fully examinable on judicial review under a statutory provision, then that would provide another alternative which, we submit, would be reasonably practicable and obviously less restrictive of the freedom. If the Court pleases, that is my submission in reply.

FRENCH CJ: Thank you, Mr Reynolds. Yes, Mr Lowe.

MR LOWE: Yes, if I might just start with an observation of a question put by Justice Bell about the comparable measures whether section 93X is comparable with bail conditions, parole orders or non-association orders. We say in response that that is an imperfect comparison, one, because of the availability of review mechanisms to look at each of those particular orders and also because each of those orders are like self-executing orders, they will finish. Once you are charged you will be subject to bail or bail refused, that itself will come to an end. Also parole orders and non-association orders are to do with sentencing and those sentences will come to an end, they are finite.

BELL J: But, during their continuance they have the effect on this argument of chilling communication, including in respect of government and political matters, do they not?

MR LOWE: If there is an order to that effect, but if there is an order that they are not to communicate with anyone it is open to go back to the courts or tribunals or parole boards to, in fact, review that very issue. So we say 93X, unlimited in time, so it is an imperfect comparison.

The Solicitor-General for New South Wales yesterday indicated that there were six limiting factors relevant to the construction of 93X. I will take you to the two limiting factors which we say may not be as cogent as the Solicitor-General has indicated. The first limiting factor was that the contact must be intentional and non-accidental. The Solicitor-General then referred to Johanson v Dixon at page 383. Your Honours have already been taken this morning by the Solicitor-General for WA to page 383. We do not wish to read that particular section - read out that section save to say that there was reference to:

Mere association with those persons, which is not habitual, for a criminal or unlawful purpose is not proscribed.

During the argument yesterday, Justice Crennan raised with the New South Wales Solicitor-General whether it was being put that you need to read these provisions with the freight of understanding what the common law had to say about the consorting to which Mr Sexton responded well, certainly, the background.

Well, we say in response to that that any common law freight must take into account that section 93X covers a terrain well beyond the traditional consorting provisions that have been on the statute books for the last 100 years and cover all forms of communication. So this is significantly different from all previous forms of consorting and feeds into the submission that I indicated to you, Justice Bell, yesterday, that the New South Wales consorting provision, section 93X, is so broad, it is the broadest consorting provision in Australia and very, very different from the other comparable provisions around the federation.

Now, one thing the common law cases do provide some illumination is the question of accidental association. Your Honours have been provided this morning with a copy of the authority of Barber v Harvey (1943) 60 WN (NSW) 32. A consideration of that case – and I will just say this, the common law authority illustrates that accidental meetings or associations is relevant as to whether consorting has been made out. Now, that particular common law authority is referred to in Dias v O’Sullivan [1949] SAStRp 15; (1949) SASR 195 at 202 at the top of the page where Justice Mayo states:

But although accidental, or casual, meetings are inadequate criteria for deducing the idea of companionship, the fact and nature of such encounters are proper to be received in evidence and considered.

So what we say about accidental meetings - they do not fall by the wayside, they are taken into account with intentional associations, but they are not to be excluded from any consideration whatsoever. So we say in relation to the first limiting factor, the Commonwealth authorities reveal that that particular factor perhaps is more illusory than real. Now, the Solicitor-General then referred to the third of the six limiting factors relied on in relation to the construction of section 93X – it was the provision that was qualified by the status of the person being, “a convicted offender”.

Mr Sexton then referred to how the convictions for such convicted offenders become spent 10 years from the date of conviction, referring to sections 7, 8, 9 and 12 of the Criminal Records Act 1991. Your Honours were not taken to the terms of those sections, suffice to say that the section 12(c)(i) would be the relevant section to which the Solicitor-General for New South Wales must necessarily rely in support of his contention.

We say a fair reading of that section would support a structural construction which limits the reference to, “any convictions of the person”, to a convicted offender personally, and has no scope of operation under section 93X to a person given a warning. That person can never fit within a definition of a person for the purposes of the conviction being spent. What the Solicitor-General wishes this Court to do is to have this Court read into section 12(c)(i) as though the section should read, quote, any convictions of the person, or any other person, end of quote.

Such a reading, we contend, is not open. Spent convictions provisions do not apply, and are irrelevant to persons given warnings under section 93X. Those convictions of convicted offenders do not become spent when considered against a background of persons given warnings. That is all I wish to indicate in my reply. If your Honours please.

FRENCH CJ: Thank you, Mr Lowe. The Court will reserve its decision. The Court adjourns until 10.15 tomorrow morning.

AT 12.23 PM THE MATTER WAS ADJOURNED