APLA Ltd & Ors v Legal Services Commissioner NSW
[2004] HCATrans 375
[2004] HCATrans 375
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S202 of 2004
B e t w e e n -
APLA LIMITED
First Plaintiff
MAURICE BLACKBURN CASHMAN PTY LTD
Second Plaintiff
ROBERT LESLIE WHYBURN
Third Plaintiff
and
LEGAL SERVICES COMMISSIONER OF NEW SOUTH WALES
First Defendant
THE STATE OF NEW SOUTH WALES
Second Defendant
GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 6 OCTOBER 2004, AT 10.19 AM
(Continued from 5/10/04)
Copyright in the High Court of Australia
__________________
GLEESON CJ: Yes, Mr Solicitor for New South Wales.
MR SEXTON: If the Court pleases. Your Honours, at yesterday’s close I was still on our first point, which was that the regulation does not burden the implied freedom of communication. I can finish that point relatively shortly. Can I say again that there is no burdening, in our submission, of the freedom to communicate about the regulation itself. The difference between that is explained, in our submission, well by Justice Brennan in Cunliffe at page 329. I will not take your Honours to that reference. I think you have already been taken to them.
We emphasise that there is no burdening of any communication between a client and a legal practitioner. In our written submissions we have set out a number of examples of legislation that prohibits or substantially restricts advertising. The examples that we give are Commonwealth legislation: the Therapeutic Goods Act 1989, the Tobacco Advertising Prohibition Act 1992 and the Classification (Publication, Films and Computer Games) Act 1995 which has to be read with the various pieces of State legislation because it is part of a co‑operative scheme in that area.
KIRBY J: Those are arguably regulations for the purpose of protecting individual citizens. The suggestion in this case is that this is a regulation that restricts or is
designed to restrict or would have the effect of restricting the access of citizens to the courts and to the vindication of such rights as they have.
MR SEXTON: Your Honour, that is probably an aspect of the Chapter III argument, to which I am going to come. We are just looking at the moment at, in a sense, the first limb of Lange and whether there is a burden on the political or government communication. We would say that obviously those advertising regimes and those prohibitions could be looked at in the same way, at least in relation to the Lange question ‑ ‑ ‑
KIRBY J: How would they relate to government? See the argument here is that this regulation relates to government because it relates to the government sector of the courts, whereas those are for people’s health or their psychological wellbeing or whatever else. They are not really relevant to any aspect of government.
MR SEXTON: Your Honour, in the case of films, for example, it is possible to imagine of course films that may have, we would concede, a political content, but we do not concede of course that these advertisements could be political or government discussion.
KIRBY J: Do you have anything to say on the suggestion – you see I think there has been an ill-focus here on Lange as a rule relating to the political process and I just do not see that this case has anything to do with that, but as government includes the third branch of government, the courts, then that is the model that we have to consider whether that applies.
MR SEXTON: Your Honour, we would ‑ ‑ ‑
KIRBY J: It seems to me. What do you have to say about that?
MR SEXTON: Your Honour, we would say that Lange, and in terms of that decision, is anchored in those particular sections of the Constitution that deal with the electoral process.
KIRBY J: But that is only one aspect. The Constitution deals with the electoral process. Fine, that is given. That was what Lange was about. That does not seem to me to be engaged here. What is engaged is those parts of the Constitution that deal with the judicature and people’s rights of access to the judicature, and knowing that you have a right, knowing that you can have access to lawyers who will do things cheaply, pro bono or on a basis that you do not pay until a result. Now, that is argued to be relevant to that aspect of government which is courts, Chapter III.
MR SEXTON: Your Honour, we say the implied freedom of communication is confined in a way that would not extend to the matters ‑ ‑ ‑
KIRBY J: But how can it be in principle? I mean, these things are not just invented out of the air; they have to be anchored in the Constitution. The Constitution contains Chapter I the Parliament, Chapter II the Executive, Chapter III the Judiciary. So how could it possibly, as a matter of concept, be limited only to Chapters I and II? If it is implied to make Chapter I and II work, it must be implied to make Chapter III work, conceptually, it cannot be otherwise.
MR SEXTON: Your Honour, because it is a limitation on both State and federal legislative power, we would say that it needs to be confined and we accept the way that it was confined by the unanimous decision in Lange itself, by reference to those specific provisions in the Constitution.
KIRBY J: That is because that is what we were dealing with. We are now asked to deal with another problem which is the Chapter III problem, the issue that relates to the protection. Just as we were there protecting the electoral system and the governmental system, here we are asked to protect the judicature.
MR SEXTON: Your Honour, we understand the Chapter III argument and I am intending to come to it, but I am just trying to separate them for the moment and saying that as far as the implied freedom of communication is concerned, we say that it is not applicable in this case. We have set out our reasons for that yesterday. I do not want to go over them again on this question of burden.
KIRBY J: Just another case of reading a decision as if it is covering the whole world, whereas it was covering the problem which we were presented with in Lange, but the language of the principle is wide enough to embrace the protection of other chapters, not just Chapters I and II. It must be so. It is protective of the Constitution.
MR SEXTON: Except, your Honour, that Lange was about State defamation laws.
McHUGH J: Yes, but Chapter III must have its own implied freedoms of communication. Surely the Commonwealth cannot pass a law that would prohibit a litigant in federal jurisdiction from communicating with his or her lawyer. Why is it a necessary incident of Chapter III structure that people with causes of action in federal jurisdiction have a right to communicate with their lawyers to get legal assistance, quite independently of section 78 of the Judiciary Act?
MR SEXTON: I am going to come to this, your Honour. The short answer is, your Honour, that assuming that there is a protection in Chapter III for litigants in proceedings in federal courts and tribunals ‑ ‑ ‑
GUMMOW J: Why do you say in proceedings? In proceedings actually constituted or proceedings that could be constituted?
MR SEXTON: Well, that is the question, your Honour.
GUMMOW J: I know, that is why we want to get to it.
MR SEXTON: How far that protection extends and we would say that it does not extend. However far it extends, it does not, in our submission, extend to advertising of legal services in a situation where there is no client and lawyer relationship at that time.
McHUGH J: But you have to look at the practical operation of legislation and the operation of an Act is what it does in the situation where it operates. It does not operate in a vacuum; it operates upon events, facts, matters and things in society. If it is valid, it has an effect on those things, sometimes directly in the sense of its legal operation fastens on one of those facts, events or things, but sometimes its practical operation modifies conduct and in that way imposes a burden. Now, arguably, if there is some right of communication between citizens and lawyers concerning matters in federal jurisdiction, a law that prohibits advertising the services of a lawyer may impact on the right of the citizen to bring an action in the Federal Court.
MR SEXTON: As I say, your Honour, it depends on how far that protection extends. If it were to extend to striking down this legislation, in our submission, it would go well beyond what was required to protect litigants in federal courts and tribunals and those proceedings and it would impinge on an area that had always been considered an area of State legislative power and, of course, was an area that has been regulated for more than a century.
McHUGH J: What is this, the reserve powers doctrine coming back again?
MR SEXTON: No.
KIRBY J: Looking up at the three first Justices. They are looking down on us.
McHUGH J: We are back before 1920.
MR SEXTON: Your Honour, it is a question of how far that protection extends and one consideration in how far it extends is a general concept of federalism.
McHUGH J: What, the federal balance? Are you going to keep the federal balance? These ideas were exploded in 1920, had a revival at one time, were exploded again 20, 30 years ago. I thought they were dead and buried. The States never give up.
MR SEXTON: It is trying to preserve that small corner that is left of legislative power, your Honour.
CALLINAN J: Not everyone is unsympathetic.
McHUGH J: But, Mr Solicitor, surely the state of New South Wales could not pass legislation saying a person registered as a legal practitioner in New South Wales cannot act for a person in federal jurisdiction.
MR SEXTON: I think that is right, your Honour.
McHUGH J: Yes. Now, could it say you cannot advertise that you will provide services in federal jurisdiction? I suppose you would say, “Yes, the State could do that”.
GUMMOW J: Then you get to practical operation. Are you not then getting away with doing indirectly what you cannot do directly?
MR SEXTON: No, your Honour, because there is a lot of other ways in which it can be done. It really to some extent depends, of course, on how you – when I say characterise the legislation, I am putting that in perhaps a broader sense as to whether it deals with the advertising of legal services or whether it is an attempt to impede litigants in federal jurisdiction.
McHUGH J: But even when the criterion of operation was riding high in section 90 and section 92 laws, Sir Owen Dixon recognised that there could be a burden imposed, for instance, on somebody’s freedom under section 92 by circuitous means and legislation which by circuitous means had the practical effect of burdening trade or commerce or intercourse was invalid for that reason.
MR SEXTON: But, your Honour, it is a question of what is necessary.
GUMMOW J: You use this word “litigant”, you see. They may never become a litigant.
MR SEXTON: Yes, that is right.
GUMMOW J: That is your object. That is one of the objects of this legislative exercise. That is what is said in the Parliament.
MR SEXTON: Yes.
KIRBY J: But if you do not know you have a cause of action or if you might think you might and you do not know how to go about it or who you go to or what it is going to cost, you never get to a court, so it is practically – it is putting the restriction, the barrier on ordinary folks getting to court.
McHUGH J: The practical operation of this legislation is not to stop a person pursuing a cause of action once they have commenced it in federal jurisdictions; its purpose is to prevent them starting it. Why should the Constitution acknowledge such a formal distinction? Why is not the constitutional answer that one law is as bad as the other?
MR SEXTON: Your Honour, it can be thought of in some senses as a question of remoteness to the core that is protected by Chapter III and the question is whether advertising of legal services, even though it may have some slight impact on cases in federal jurisdiction – bear in mind, your Honours, that most of the matters of course that are dealt with by the regulation will not be in federal jurisdiction.
McHUGH J: It is one thing if the legislation was directed at some ethical behaviour of lawyers, as some of the legislation considered by the United States Supreme Court has been, but you would have to be blind to come to any other conclusion that this legislation has nothing to do with ethical standards, even though it finds its place in the Legal Practitioners Act and regulations. It is directed to preventing litigation.
MR SEXTON: We accept that, your Honour, in this particular area and we say – this is a question that arises in relation to federal jurisdiction, but it does not need to have an ethical basis at the State level, for example. If the government wants to reduce litigation in a particular area, that is a legitimate policy decision.
McHUGH J: Certainly. It can do what it likes within New South Wales so far as I am concerned but, once it starts impacting on federal jurisdiction, you are in another area.
HAYNE J: It seems to me that once you say that the purpose of this is to prevent litigation as distinct from the prevention of creation of controversy, you have started on a slope that is fairly uncomfortable, Mr Solicitor. Unless you distinguish between the creation of controversies and the litigation of controversies, what is the terminus that you say has been passed and takes this outside the prohibited area?
MR SEXTON: Your Honour, we would put it at least as one line of demarcation the commencement of the relationship between lawyer and client and that this regulation deals with conduct that precedes that. It is possible to continue back along this chain and say, for example, that in addition to an entitlement to advertise, lawyers have an entitlement to space in shopping malls because that means that they will have greater access to clients, that there will be – and it would be easier for clients.
HAYNE J: It is not grappling with the difficulty presented by what appears at 248 of the appeal book and that the new rules will counteract the trend to excessive litigation evident in parts of our society. The avowed purpose of this set of regulations is to prevent litigation.
MR SEXTON: And it does so, your Honour, by a restriction on advertising, not on people going to lawyers, not on any litigation being commenced, not on the conduct of that litigation.
KIRBY J: It does not get started unless you know that you have a lawyer that you can go to that will bring it at fees that you can afford.
MR SEXTON: Well, your Honour, that cannot be true for the majority of litigation which is started ‑ ‑ ‑
KIRBY J: I am not so sure about that. In the category that the regulation addresses, claims up to $100,000. This is the little end of town. The big end of town can look after itself. This is ordinary citizens. By definition, as Justice Hayne has pointed out, you have the cause of action. It is the litigation of the cause of action that you are aiming to stop.
MR SEXTON: Well, I can only say, your Honour, that ‑ ‑ ‑
HAYNE J: Well, is that your premise? Is it your premise that there is an existing controversy?
MR SEXTON: When you say an existing controversy, your Honour ‑ ‑ ‑
HAYNE J: That is, is this end of counteracting the trend to excessive litigation directed to cases where persons are either ignorant of, unwilling to or unable to prosecute a controversy? For if it is directed to achieving that end by dealing with that suite of cases, I can understand an argument at least that says there is no controversy, either because someone does not know they have a right or is unwilling to pursue it or is unable to pursue it, there is no controversy, and therefore we are at a point anterior to the contemplation of engagement of judicial power.
Now, whether that distinction is valid may raise a whole set of questions, but at least I can understand a distinction cast in those terms. But it seems to me that the way the argument is presently proceeding, it proceeds from the assumption that the objective is to prevent those who have a right, know that they have a right and wish to pursue it from doing so.
MR SEXTON: I do not think that is so, your Honour. Your Honour will see from some of the materials that one of the bases for the regulation is to counter the encouragement of claims that would not otherwise be brought.
McHUGH J: But that is easily dealt with. You penalise the lawyers for bringing unmeritorious claims.
KIRBY J: As the law has in New South Wales.
McHUGH J: You make them certify that there is a reasonable cause of action and penalise them when it turns out that it is not. That is not what this legislation does.
MR SEXTON: Well, it is slightly different from what Justice Hayne was saying. It does not follow that all the claims are unmeritorious in the sense of must fail.
McHUGH J: No, I know. Some may be unmeritorious, but plenty may not be unmeritorious, and you stop both classes.
MR SEXTON: But, your Honour, the regulation will not stop someone who knows they have a claim and wants to pursue it.
McHUGH J: No, it will not but it is surely a reasonable inference that there are many people who do not know what their rights are, particularly when they are statutory rights. Probably half the legal profession, without some research, would not know what causes of action exist in federal jurisdiction.
MR SEXTON: Well, your Honour, I can only say it is a question of how far the protection – and there must be some protection given by Chapter III to federal litigation and a person ‑ ‑ ‑
HAYNE J: We know that is the question, Mr Solicitor. What we are waiting for is your answer to it.
MR SEXTON: Well, our answer, your Honour, is that at least prior to the lawyer/client relationship being formed that the zone of protection would not be operative and that it does not extend to advertising the legal services to persons who are not yet clients.
GLEESON CJ: It cannot have escaped the attention of those who formulated competition policy that advertising by lawyers promotes litigation. This is an attempt to put half the genie back in the bottle.
MR SEXTON: Your Honour will see in the materials that the National Competition authorities do not approve of advertising restrictions pretty much in any form including in this area. There is a countervailing policy consideration as far as the government is concerned which is also evident from those materials, but your Honour is quite right to say that in the area of competition policy there is a clash between those objectives.
GLEESON CJ: I would imagine that it is fairly obvious that advertising by pathologists would be likely to have a fairly significant budgetary impact too.
McHUGH J: Your argument, really, is calling into aid the old criterion of operation. You want to ignore the practical effect of the law and say it does not interfere with the cause of action as such, that is not its criterion of operation. It operates before the lawyer/client relationship is formed and on that basis it is a valid law.
MR SEXTON: And it operates on the advertising, not on a client/lawyer relationship or on existing litigation.
McHUGH J: Yes.
MR SEXTON: Now, it is a question of how far the protection extends and your Honours put some questions about that, but we would say it would be a very large step to extend an implication from Chapter III to this legislation.
GUMMOW J: The authorities beginning with the Hospital Provident Fund Case 87 CLR 1 at 36, going through to the more modern practical effect idea collected by Justice Mason in North Eastern Dairy Co 134 CLR 559 at 606 and 607 and also Sir Garfield Barwick at 588 to 589.
MR SEXTON: We look at those, your Honour. Your Honours, I was going to say if I could come back to Chapter III but I am not sure that I need to come back to a great deal after those discussions, but to just take things in order, there is one final point in relation to the question of burdens in relation to Lange, which is to note that in Cunliffe a prohibition on lawyers giving legal advice and representing clients in federal tribunals was held not to infringe the freedom of government and political discussion. In the case of three of the Judges – Justice Brennan, Justice Dawson and Justice McHugh – seemingly on the basis that there was no burden, and Justice Toohey on the basis there was a burden but it was reasonably adapted to a legitimate purpose.
GLEESON CJ: Did Cunliffe consider Chapter III?
MR SEXTON: I do not think so, your Honour, not as far as I am aware.
GUMMOW J: Except for Justice Gaudron.
MR SEXTON: Now, your Honours, can I move very briefly to the question of, if there were to be found a burden in this case, whether it could be said to be reasonably appropriate and adapted to serve a legitimate end. On that point both Justice Hayne and Justice Callinan yesterday raised the question of the use that might be made of the materials in the special case books. In our submission, the only real use of those materials is to identify the purpose of this legislation.
GUMMOW J: Yes, we know. I must say I thought when everyone was co‑operating and putting all this in it might come back to bite someone.
MR SEXTON: Your Honour will remember those discussions in the directions hearings, but we say that that is the use that can be made, but after that the material is probably not enormously helpful to the Court because, as Justice Callinan noted, it does contain a range of expressions of opinion about the merits of this kind of legislation. They really cannot be tested and therefore it is difficult to see what real use could be made of them, but from our point of view, it is sufficient that it identifies the purpose of the legislation.
We say that what is clear from those materials is that there were perhaps three overlapping purposes of the legislation: to reduce the volume of personal injury litigation, to reduce the growth in the cost of public liability insurance premiums and to increase the availability of public liability insurance for certain individuals and businesses and community organisations.
I thought at one stage yesterday my learned friend Mr Gageler accepted that the second of those, those reducing the growth in the cost of public liability insurance premiums, was a legitimate purpose but I am not sure that he did not retreat from that at a later stage.
McHUGH J: Sorry, what was your first purpose again, Mr Solicitor?
MR SEXTON: Reducing the volume of personal injury litigation, reducing the growth in the cost of public liability insurance and increasing the availability of that insurance. I do not want to go to those materials in any detail but if your Honours look at page 252 of the second volume of the special case book, it is the 2004 report to the National Competition Council by the New South Wales government. At about lines 26 to 30 your Honours will see there it says:
As outlined in New South Wales’ report to the NCC for 2003, the restrictions on advertising of personal injury services were introduced in response to the problem of dramatically escalating costs of public liability insurance and reduced public access to insurance. One of the factors that led to increasing premiums was the sharp rise in the number of public liability claims.
GUMMOW J: What about the next paragraph?
MR SEXTON: That is the countervailing consideration, your Honour. That is quite right.
KIRBY J: Your point, as I understand it, is whatever we might personally think about the wisdom or unwisdom of the regulation, the fact is that there are different arguments on the merits of it and that that, under our Constitution, is a matter that is left to the elected politicians. Is that what you are trying to say to us?
MR SEXTON: That is certainly one of our propositions, your Honour, yes.
KIRBY J: Because there are different ways you could categorise the regulation than the three you have mentioned. You could categorise it as an attempt to stop the working of the market in the delivery of legal services by advertising the cheaper costs and availability and the attempt to shift the burden of wrongdoing and torts and legal breaches to the victims instead of those who do them. There are all sorts of spins you can put on what exists here, but I take it that that is your point, that there are different evaluations of it and it is not our job to evaluate them unless it breaches the constitutional norm.
MR SEXTON: That is so, your Honour. If one accepts that this is a legitimate end by which we would say not one that everyone would necessarily agree with or support, but an option that is open to the government of New South Wales, then we would say further that the regulation is reasonably appropriate and adapted to serve that legitimate end, the ones that we have already set out and that this is not a case where it could be said that there were less stringent means by which the objectives of the law could be achieved. There is reference to that principle in Lange at 568 and Australian Capital Television at 129 by Chief Justice Mason. We say, of course, that your Honours will not get to this particular issue but we make those submissions on that question.
Now, your Honours, in relation to Chapter III, I am not sure that I can perhaps add to what has already been said this morning on that question but we would underline that we would accept that there is an implication arising out of Chapter III that would extend to any interference with access to federal courts and tribunals, representation in those bodies, but that it does not extend to the legislation that is under challenge in this case. We accept, as Justice McHugh says, that in terms of its practical operation that a restriction on advertising may have an impact on legal claims, although we would say not on claims of which people are aware and which they intend to bring, of course.
So the question is the zone of protection and the line that we draw is at least the commencement of a lawyer/client relationship and it may be that the line is drawn more sharply than that in relation to those questions of access and representation, depending on the terms of any other legislation that was under challenge.
GUMMOW J: Assume you are wrong about that and a question of severance arises, how would that be answered?
MR SEXTON: Your Honour raised that yesterday. Section 31 of the New South Wales Act we would say would operate to mean that the regulation applied except in relation to ‑ ‑ ‑
GUMMOW J: Section 31 of?
MR SEXTON: The Interpretation Act (NSW), your Honour – except in relation to legal services that were provided for proceedings in federal courts and tribunals.
KIRBY J: Is there an anterior principle that because of the Constitution one reads State laws as only applying in the State domain and not applying to the statute before you use an Interpretation Act, or not? In other words, that you would read the law of a polity as applicable to the business of that polity and therefore you would read this as directed at State concerns.
MR SEXTON: Your Honour, one way of looking at it is that the State can only legislate to the extent of its powers, but if one is looking at it from a point of view of reading down, it may be necessary to have a specific statutory provision that allows that to be done in terms of a State law, which is the purpose of section 31.
KIRBY J: The problem is the undiscriminating character of the legislation, that it is not focused on and is not expressly stated to address only State matters.
MR SEXTON: We say it can be done, your Honour, but ‑ ‑ ‑
GUMMOW J: How? Textually?
McHUGH J: How would you frame it? If you were the parliamentary drafter, how would you frame the exception to keep it within State power?
MR SEXTON: Your Honour, in the definitions of “advertisement” there is a reference to the provision of legal services. It is probably there that the reference to legal services to be provided in proceedings in federal courts and tribunals would need to be inserted.
GUMMOW J: But the attraction of federal jurisdiction may arise, as Felton v Mulligan illustrates so dramatically, by something in a defence. In other words, it may not be apparent at the moment of filing the initiating process. How would that ‑ ‑ ‑
KIRBY J: Why should it be limited to federal courts and tribunals? Why is it not State courts exercising federal jurisdiction?
GUMMOW J: As Felton v Mulligan was a State court matter.
MR SEXTON: There may be a small group of cases in that category.
KIRBY J: We are asking you. You have to help us. If you want to have a severance – and at the moment, speaking for myself, that is quite an important question – you have to express the way in which it would be done. If it cannot be done simply, I do not think a court will struggle to do it. We will leave it to the draftsman to take a little time and do it correctly.
MR SEXTON: Your Honour, I do not want to pretend that it would be an easy task in this situation because, as your Honour points out, the regulations ‑ ‑ ‑
GUMMOW J: It is no good setting us an exam question.
MR SEXTON: No, I will not be doing that, your Honour.
KIRBY J: Once you concede that, is not the principle that you apply these provisions if it can be easily excised? If it cannot be, then courts do not take on themselves the task of being parliamentary counsel.
GUMMOW J: You may have a Pidoto problem. I guess that is what ‑ ‑ ‑
MR SEXTON: We have not attempted to draft anything. Your Honour appreciates that we are proceeding on the basis that we do not get to this stage but, because the legislation is in general terms and because of the matter that is raised by Justice Gummow of cases in federal jurisdiction that may not be in federal courts and tribunals ‑ ‑ ‑
GUMMOW J: Or may not appear to be there at the time of initiation.
MR SEXTON: Yes. There may be a real difficulty about that.
HAYNE J: It seems to drive you back to the proposition that the prohibition is against impeding or burdening the attempted or the contemplated or the possible invocation of federal jurisdiction. That is, it seems to drive you back to the position where it depends upon whether the party whose resort to the courts is impeded would himself or herself seek to invoke federal jurisdiction. Do you go that far? Do you simply get to the point of saying, “Look, it’s all too hard. We’ve got a problem which you’re not going to help us with”, which seems to be where we have got to, Mr Solicitor.
MR SEXTON: We do not disguise the difficulties of reading down because of the nature of the provision, your Honour. We do say, of course, that that is not an exercise that will be necessary. Apart from the question of cases in federal jurisdiction, we say that predominantly it would be cases in federal courts and tribunals, which would, of course, be very much a minority of the cases that are dealt with by the regulation.
GLEESON CJ: If you look at Strickland v Rocla Concrete Pipes 124 CLR 468, Sir Garfield Barwick, in relation to section 15A of the Acts Interpretation Act, said that is an expression of legislative intention:
But of course if the substantive enactment is single and indivisible, there can be no other legislative intention than to make the law so expressed.
This regulation bites before litigation is commenced or even before a cause of action, let alone a defence, is formulated. Solicitors are prevented from advertising their services in relation to matters that may or may not involve an exercise of federal jurisdiction. If somebody is prosecuted for a breach, the breach will have occurred, as you point out, before the relationship of solicitor and client has been entered into.
MR SEXTON: Your Honour, that is why we say that it is beyond any implication that might be raised by Chapter III.
GLEESON CJ: You may be right about that. But if you are wrong about that, it has a problem in relation to section 31.
MR SEXTON: Yes, a problem in relation to reading down. Well, I do not want to disguise that, your Honour, because it would be unrealistic. The regulation was not drafted with those considerations obviously in mind and, therefore, the exercise would pose real problems.
KIRBY J: Does any principle emerge from Coleman? I think in the view of some of us in Coleman there was a way that one could read down to avoid a constitutional impediment.
MR SEXTON: Justice McHugh, I think, used the same provision of the Queensland legislation, equivalent provision, to read down the section in Coleman.
McHUGH J: Yes. I read down the word “insulting” not to cover political discussion. But it is a rather different problem here, Mr Solicitor.
MR SEXTON: It is, yes. Your Honours, the remaining issue that I wanted to deal with is section 92, at least in part. In our submission, it is clear that the regulation is not aimed at interstate intercourse ‑ ‑ ‑
GUMMOW J: Just before you leave severance, there is a useful reference to authority including Strickland in Justice Brennan’s judgment in Dingjan 183 CLR 323 at 339. It has been applied in later cases.
MR SEXTON: Thank you, your Honour. Your Honours, I wonder if, when written submissions are being put in on the matter that was added to the special case this morning, we could have leave to put in a short submission on this reading down question.
GLEESON CJ: Yes, certainly.
MR SEXTON: In relation to section 92, in accordance with section 12 of the Interpretation Act (NSW), we would say that the reference to legal services would be legal services in New South Wales and the regulation only applies to lawyers outside New South Wales who advertise for the provision of legal services inside New South Wales. So to that extent, where there is a burden on interstate communication, it is merely an incident of the general regulation of advertising in this case. The section 92 issue, of course, arises really in relation to the website material which has been established by, I think, the second plaintiff in these proceedings.
Now, on that basis, we would say that insofar as there is any burden on interstate communications that this amounts to a reasonable regulation and we would adopt the terminology that was used in AMS v AIF (1999) 199 CLR 160 at paragraph 43 where your Honour the Chief Justice and Justices McHugh and Gummow said, and this was agreed in paragraph 221 by Justice Callinan, that the question becomes whether the impediment imposed is greater than that reasonably required to achieve the objects of the relevant legislation.
We would say that any burden that is imposed here, incidentally, on interstate communications meets that test and if, of course, it were not to cover those communications there would be an easy means of evasion by New South Wales practitioners of the advertising prohibition.
There were some judgments in Cunliffe which put the test in a way that requires an assessment of the social or the economic benefits or utility of the legislation in question to the community. In our submission, that is not an inquiry that is usefully pursued by the Court and that is why those particular formulations which take that approach ought not to be adopted. It would, for example, mean in the case of this legislation or in the case of prohibitions on advertisements for tobacco or X-rated movies or gambling that it would be necessary to make some sort of assessment of the social utility of those pieces of legislation because by using the Internet there would be, in every one of those cases, one might assume, a burden placed on communications on interstate intercourse. So that we would adopt the formulation that was used in AMS ‑ ‑ ‑
GUMMOW J: Now, in part IV of the Commonwealth submissions, paragraph 52 and following, and this would be an important point of principle, I suppose that:
“Intercourse” in s 92 is limited to intercourse that is not trade and commerce –
What is New South Wales’ position on it?
MR SEXTON: We are happy to accept that proposition, your Honour. I was planning to essentially leave the argument to my learned friend from the Commonwealth, but it does seem to us logical because given that one would imagine that almost all trade and commerce would also be intercourse, that there would therefore be negation in the sense of Cole v
Whitfield if the plaintiff’s approach were adopted and a different test were used for interstate intercourse.
GLEESON CJ: I suspect that has been said many times before in this Court. It has never actually been decided.
MR SEXTON: No, as far as we could see ‑ ‑ ‑
GUMMOW J: Before Cole v Whitfield, it did not matter so much when it was reasonable regulation across the board rather than discriminatory burden.
MR SEXTON: At any rate, your Honours ‑ ‑ ‑
GLEESON CJ: That is why the banks were interested in supporting the position of a lady who wanted to travel to Western Australia on a train or something.
MR SEXTON: Well, of course, there might be examples of intercourse that do not fit within trade and commerce but we were saying ‑ ‑ ‑
GUMMOW J: Well, AMS v AIF is such an example.
McHUGH J: And Gratwick v Johnson, the case to which the Chief Justice has referred, is a classic illustration.
MR SEXTON: Well, the movement cases, we would say, raise a different point really and that is one of the reasons for the protection that is given by the word “intercourse.”
But, your Honours, except for saying that we would support the logic of that proposition that is being put forward by the Commonwealth, and I think by Western Australia as well, we propose to allow them to develop that argument.
GLEESON CJ: Thank you, Mr Solicitor.
MR SEXTON: Those are our submissions, your Honours.
GLEESON CJ: Mr Solicitor for the Commonwealth.
MR BENNETT: If the Court pleases, I propose to deal first and very briefly with some minor points of construction; secondly, with the Lange argument; thirdly with what one might call the Chapter III implied limitation argument; fourthly with section 92 and then deal with a number of very short minor matters.
KIRBY J: You are treating severance as a minor matter, are you? Are you going to deal with that?
MR BENNETT: Minor in the sense, your Honour, that what I am proposed to submit about severance is a procedural device to enable the matter to be dealt with, which in my submission, is the appropriate way in this Court, of dealing with issues of severance in cases like this, where there were a large number of ways in which invalidity is argued and might result. It is very hard to argue severance when one does not know the basis on which the particular regulation is held to be invalid. The appropriate course, we would submit, is rather like what equity courts did in the old days, for the court to hand down reasons without ‑ ‑ ‑
GLEESON CJ: We will refer it to a Master.
MR BENNETT: No, your Honour, I was thinking more in terms of the analogy of short minutes in equity, but that the Court hand down its reasons and then give the parties the ability to make further submissions on the question of severance in the light of the reasons, and if necessary, the Court could decide whether or not there is a need for a further oral hearing, a very short one, no doubt. But it is invidious, in my respectful submission, to argue severability in any sensible way, without knowing which of the plaintiff’s many submissions have succeeded.
KIRBY J: You are here for the Commonwealth and at some stage before you close, I would be grateful if you would address the issue which is of legitimate Commonwealth concern, which is that if in the end the problem that is presented for the regulation is its overlap with or potential difficulties it presents for the prosecution of federal causes, then that issue of severance is presented and on that matter, at least, I think it will be helpful to have your submissions.
MR BENNETT: Yes.
KIRBY J: Because that seems to have been the major issue of severance that has emerged if section 109 does not do the work.
MR BENNETT: Yes, 109. Your Honour, I will say a few words about that, but the primary submission is that it should be left for later determination and that that should be the practice of the Court in cases where there is a multiplicity of bases on which it is alleged that legislation may be invalid. Otherwise hearings would be very much lengthened by the need to argue severance on a large number of alternative bases in the course of hearings before seven Justices, and in our respectful submission, that is undesirable. Now your Honours, in relation to construction, we – this is of course, primarily a matter for the State and I do not wish to make lengthy submissions about it. I just wish to point out a number of features of the regulation which do affect the question of invalidity.
The first is the ambiguity arising out of the use of the indefinite article before the word “barrister or solicitor”. If your Honours go to page 30 of the plaintiff’s submissions your Honours will see the definition of “advertisement” at the beginning of regulation 138. Your Honours see that it refers to:
communication of information . . . that advertises or otherwise promotes the availability or use of a barrister or solicitor to provide legal services –
The indefinite article there gives rise to a patent ambiguity. That could mean promotes the availability of a particular barrister or solicitor or particular barristers or solicitors, as here, being members of APLA, or it may mean promotes in the abstract the principle that one should use a barrister or solicitor when one engages in particular legal activities, the example being, I suppose, an advertisement by the Law Society saying, “Don’t go to court yourself, use a lawyer”. That would be the second meaning of the indefinite article.
GUMMOW J: The problem is, 139(1) uses “a”, too. It says “A barrister . . . must not” instead of saying “no barrister or solicitor may”.
MR BENNETT: Yes.
GUMMOW J: It seems to be any. It is used in the sense of any - in 139(1), I mean.
MR BENNETT: That is largely my submission, your Honour, but it is the first meaning not the second meaning.
McHUGH J: It is reinforced to some extent by regulation 140B which talks about “an employee of a barrister” is deemed to be.
MR BENNETT: Yes, I would so submit, your Honour. I may just say one other thing while saying that and that is that it is inherently unlikely as a matter of English that the indefinite article is employed in both senses. Where one has a patent ambiguity in English one chooses between them. One does not normally read the word or phrase as having both meanings. If one had a tax on the transfer of planes and there was a patent ambiguity as to whether it was referring to aircraft or carpenter’s tools, the function of the court would be to construe it, no doubt in the light of the general subject matter of the legislation, perhaps the second reading speech. There would be many clues which would no doubt tell the Court which was intended. But if one ends up with a total patent ambiguity, the legislation simply taxing the transfer of planes, the Court would have to select.
What it could not do, in my respectful submission, is construe it as meaning that the transfer of aircraft and the transfer of the carpenter’s tools are taxed. That would not be good English to use the word once to have the true meanings. The only places where that would occur would be in cryptic crosswords or puns used for the purposes of humour.
HEYDON J: Are you intending to withdraw paragraph 5 of your written submissions?
MR BENNETT: In part, yes, your Honour.
HEYDON J: Which part?
MR BENNETT: Your Honour, I do not withdraw it. I withdraw the implication from it. I concede, your Honour ‑ ‑ ‑
HAYNE J: This has two meanings and both are intended.
MR BENNETT: No. Your Honour, what I submit is that it I concede the first part of paragraph 5, that the purpose of it could be used to “support the second meaning” although we say the second meaning is not the intended meaning.
The second part of the submissions proceed on the basis that it has both meanings. That is simply because I have to cover the possibility, and I will proceed to do so. So in that sense I do not formally withdraw any part of paragraph 5 but I withdraw the implication that might be drawn from it that we submit that it has both meanings because, in my respectful submission, the contrary is the case.
HEYDON J: Paragraph 4 then should begin, “The Attorney-General submits that the Regulation is clearly intended to convey only the first meaning”.
MR BENNETT: Yes, your Honour, it should.
GUMMOW J: That is to say that it is not talking about barristers or solicitors as a general class in the definition.
MR BENNETT: It is not talking about the Law Society advertisement which says, “Engage a lawyer if you go to court”, but I will be putting submissions that even if it does, it does not violate any of the constitutional principles we are concerned with.
HAYNE J: Given that it is a penal provision, if there is ambiguity, why would you not choose the narrower?
MR BENNETT: Precisely, your Honour, and we would so submit, the narrower being a particular barrister or solicitor or particular barristers or solicitors. But there is a difference in kind, we would submit, between on the one hand an advertisement by APLA saying, “Come to one of our members” or “Come to us and we’ll direct you to one of our members”, and the hypothetical advertisement by the Law Society saying, “Go to a lawyer”. There is a difference.
GUMMOW J: They have had such advertisements that said, “Don’t make your own will because you will muck it up. Make sure you go to a lawyer”.
MR BENNETT: Yes. That sort of advertisement in this context would not be caught, in our respectful submission.
KIRBY J: Let me get that clear. You say that an advertisement by APLA for its members would not be caught.
MR BENNETT: No, would be, your Honour. That is the singular including the plural and that is promoting the availability to use particular barristers and solicitors as opposed to other barristers and solicitors. There is a difference in kind between that and the hypothetical advertisement I have referred to.
McHUGH J: There would no breach, in your submission, if APLA said, “Don’t conduct your own litigation, use a barrister or solicitor”.
MR BENNETT: That is so, your Honour, I would say so, yes.
KIRBY J: “And we can help you”?
MR BENNETT: Well, yes. Your Honour, one can think of various examples where one gets to the question of the effect of promoting particular ones or not, and I do not want to get involved in that detail. It is not necessary for the Court to resolve that question to decide this case.
KIRBY J: You have, therefore, suggested that if there are anodyne, uncommunicative advertisements about using barristers of the general class, it does not fall foul of the regulations.
MR BENNETT: Yes.
KIRBY J: So what? I mean, that is not a controversy. It does not really limit the regulation very far.
MR BENNETT: That is why I dealt with it very briefly, your Honour. It is not the major issue in this case. In any event, I would be submitting that, even if it did, it would not fall foul of a constitutional prohibition. Your Honour, the other matter to note about construction is that it does not prevent people informing the public about their legal rights except if, in the course of doing so, it advertises or otherwise promotes the person concerned, so the ‑ ‑ ‑
HAYNE J: That is a proposition that proceeds from the premise that you can make a useful distinction between advertising the availability of legal services and informing about the existence of rights, et cetera.
MR BENNETT: Yes, your Honour.
HAYNE J: How tenable is that distinction?
MR BENNETT: Your Honour, an advertisement by APLA or any other body saying “These are your rights” and setting out the sort of material that is in one of the websites would not fall foul of anything. That would not, in my respectful submission, advertise or otherwise promote the availability or use of particular barristers or solicitors to provide legal services.
HAYNE J: No doubt cases can be devised which are different. Cases can be devised which can be seen on the one hand to be nothing more than the advertisement of the availability of services or, on the other hand, nothing more than an informing about the availability of rights. Is it your position that there is a bright line between them?
MR BENNETT: There is a line between them, your Honour. One could imagine advertisements which are on the borderline and they might be difficult cases to decide. An advertisement in a newspaper setting out what people’s rights are and saying at the end, “Fred Nerk, solicitor” and a phone number might well be thought to fall foul of it, whereas the same advertisement by an organisation such as APLA without more probably would not.
HAYNE J: The plaintiff’s contention in part at least seems to be that advertising availability of services necessarily conveys with it information about rights.
MR BENNETT: Yes, your Honour. If one does ‑ ‑ ‑
HAYNE J: At least when judged from the point of view of the recipient.
MR BENNETT: It may well do, your Honour, but what this regulation ‑ ‑ ‑
HAYNE J: If that is right, where is the distinction that was going to form the foundation of this next segment of your argument?
MR BENNETT: The mere informing of rights, divorced from the promotion of the availability of legal services, does not. It is a question of reading the language of the definition of “advertisement”.
KIRBY J: You seem to be designing some very mind-numbing advertisements. If you are thinking of advertisements that actually help people to pursue rights that they think vaguely they may have or to get advice on their sense of grievance and to bring controversies to courts, then you have to have something practical like where they can go.
MR BENNETT: I am going to come to that, your Honour. That is when one gets to the body of the argument. At the moment all I am talking about is the construction of the regulation. I do not want to develop that any further. The construction of the regulation is not a matter that concerns us except insofar as it limits or expands the constitutional argument.
KIRBY J: There is from your point of view relevantly nothing in the regulation that suggests that it be read down so as not to affect federal causes, using that expression largely.
MR BENNETT: There is not that one can see. Your Honours, turning to the Lange principle, may I just start with this submission. Debate on the Lange principle has been bedevilled a little by the overuse of the word “political”, which, of course, is a word which has a range of meanings and a range of colloquial meanings. It would not fall within the protected area, to take the Levy v Victoria fact situation, for a person to be prevented from publishing a document exhorting people not to shoot ducks.
An environmentalist might say in a colloquial way, or argumentative way, that shooting a duck is a political act, but that is not what the freedom is directed to. It is directed to the ability to make representations to government, to exercise one’s vote, to persuade politicians and persuade the electorate accordingly that the legislature ought to enact legislation or the government ought to enact regulations or the government should act in an executive manner so as to curtail, or for that matter increase, duck shooting.
That is the relevant area of discourse upon which the principle bites. It would not have bit if the sole purpose of the plaintiffs in Levy’s Case had been to persuade the duck shooters not to shoot ducks. That would not be speech of the relevant type. That is far from the text and structure of the Constitution which confers a franchise and right to vote on various issues and the system of responsible government which may well include, and which does include, the right to communicate with members of Parliament and members of the government and to endeavour to persuade them to particular courses.
GLEESON CJ: Take the criticism that was directed to this Court by the editor of the article in the case of Dunbabin. Was that speech of a kind within the Lange principle?
MR BENNETT: Your Honour, in relation to courts there is a slightly different situation, and I will come to this when I get to my Chapter III submission, in that the judicial system does not encompass courts being persuaded to act in a particular way by public pressure or statements made outside the argument of cases, so there are differences there. There is also the question of the political pure Lange type freedom in relation to legislation affecting what courts do or executive Acts appointing particular judges. All those matters may fall within the protected area. The statement of what courts ought to do may well be in a different category. It is not necessary to determine that in this case.
GLEESON CJ: Well, one of the things that the editor of that article said was that this Court ought to give advisory opinions and then it would have some useful work to do.
MR BENNETT: Yes, well, your Honour, the ‑ ‑ ‑
KIRBY J: There may have been some point in that suggestion.
MR BENNETT: Your Honour, In re Judiciary & Navigation Acts may well be on our list, but the ‑ ‑ ‑
KIRBY J: At least it is a point of view. Academics have written articles like that, I have read them myself.
MR BENNETT: Yes, and there is no question that the current law of contempt of court and so on, would not prevent that sort of discussion or inhibit it in any way. I suppose there could be a referendum which altered the Constitution so as to alter the rule in Re Judiciary & Navigation Acts.
KIRBY J: I would not hold my breath.
MR BENNETT: Your Honour, that type of communication may well fall within the section 128 area of protection. But the point I am making at the moment is a different one, and it is that whatever the area of protection is, it does not cover the exhortation of members of the public to act in a way in which the maker of the exhortation sees as socially desirable. An exhortation to members of the public to use public transport rather than drive their own cars to work so as to save energy or to use electricity or not to shoot ducks or any of those things, would not be communications within the relevant area. On the other hand, communications suggesting that the government should provide better public transport or more or less roads or should protect ducks or extend duck‑hunting seasons, obviously anything like that would be squarely within the area of protection.
It cannot extend merely to the exhortation of people in relation to conduct other than, of course, the conduct within the text and structure, exercising their right to vote or the right to make representations to government.
GLEESON CJ: What if the communication does both? Is part of it…..principle and part of it outside it?
MR BENNETT: Yes, your Honour, communication can be severed. One sees every day – perhaps I should not say “one” – but one sees examples of that every day in publications which might be unlawful but which seek to, by making a political comment, make themselves lawful. The clearest example of that is The Rabelais Case, Brown v Classification Review Board (1998) 82 FCR 225 – and I will take your Honours to the case in a moment.
The issue concerned an article in a student magazine about shoplifting. The article contained very great detail on the methodology of successful shoplifting from large stores. It began with a short political statement to the effect that wealth was unjustly distributed in society and that poor people ought to help reverse that by stealing from department stores. The court had no trouble in holding that inserting those words at the beginning of the article did not take it out of the area which was entitled to be prohibited. Your Honours will see the article that was held - as to which censorship was held to be justified, is set out in full at the end of the judgment of Justice Heerey. It commences at page 247.
KIRBY J: It sounds like a pretty typical article in a student newspaper.
MR BENNETT: Yes. Well, your Honour, the other example I ‑ ‑ ‑
KIRBY J: Did they actually deploy this Classification Review Board to suppress it, did they?
MR BENNETT: Well, your Honour, it is – but one sees pornographic material which commences with the words “Pornography ought not to be censored – it ought to be free” and so on. Now, the expression of that political view is within the protection. The balance of the particular pornography no doubt is not. One simply severs. There is no difficulty in doing that. The insertion of the paragraph at the beginning does not save the rest. One is entitled to say there should be more or less censorship. One is not entitled to publish the specific pornography.
So, your Honours, the mere fact that the particular publication here may have commenced with a reference to the political issue of whether particular ministers should or should not be engaged in trying to reduce litigation for the purpose of reducing insurance premiums, certainly that sentence or paragraph may well be protected.
KIRBY J: I think Mr Gageler rather disarms your argument on that because he accepted that you could not by contrived insertions lift the matter up into the constitutional protection if it was not otherwise there.
MR BENNETT: Yes, that is the point. So, your Honours, the first submission then in relation to Lange is that there is nothing in the text or structure of the Constitution, to which one must always return, which protects communications, the sole purpose of which is to exhort people to act in a particular way otherwise than in relation to influencing government.
Now, that may be different if the action is itself part of a political protest. If one says, for example, the New South Wales trains are so bad all people should boycott them until they are improved, that would be within the protection.
KIRBY J: I just think, with respect to you, that you are making the same mistake as the Solicitor for New South Wales, and this is thinking only in a Lange‑type case. You may be going to come to this in your Chapter III argument ‑ ‑ ‑
MR BENNETT: I am.
KIRBY J: ‑ ‑ ‑ but the proposition, as it seems to me, that has legs is that here the communication that is relevant is a communication to ensuring that Chapter III can be effectively engaged for those who have a controversy.
MR BENNETT: Yes. I will certainly come to that, your Honour, and spend some time on it.
KIRBY J: It just seems to me to be rather pointless to be going on about it as if this were a Chapter I or Chapter II case. I only say that for myself, but I just do not see how that even starts.
MR BENNETT: Your Honour, with respect, we would agree with what your Honour says, that the way the matter has been argued on the plaintiffs’ side puts Lange at the forefront of the argument and ‑ ‑ ‑
KIRBY J: Yes, but I rather thought picking up the words that were used in Lange, “government” or “governmental”, and then saying that in principle this is addressed not just at lobbying politicians and making the representative democracy work, making the whole Constitution work, including Chapter III.
MR BENNETT: Yes, and including section 128 relevantly to some of the examples. But let me come then to Chapter III – I do not think I need to say more about Lange. I have made the submission in the written submissions that this communication simply has nothing to do with the text and structure of anything in the Constitution outside Chapter III. Now, let me come to Chapter III.
The first matter is that when one looks in Chapter III to see what implications one can find, the implications must, in our respectful submission, when confined to the text and structure, relate to the activities of courts, the ability of courts to resolve disputes and the ability of persons to bring matters before the Court. There has been a great deal of use in argument in the Court on the plaintiffs’ side to words like “prevent” and “stop” and so on. It is important to realise that nothing in any of the regulation here prevents any person from bringing any action or defending any action or acting in the course of the action in such way as the person thinks fit. This is a case which is concerned with the regulation of exhortation. There is no value to be found in the Constitution of the promotion of litigation as a desirable end in itself. That is not what Chapter III is directed to.
The choice whether or not to bring, or for that matter to defend, particular litigation is a choice which is left to the individual. One does not take away that choice by permitting, encouraging or preventing the exhortation of the citizen to litigate or not to litigate. That really is the key to this case.
KIRBY J: It really comes down, I think, to what Justice McHugh said. It is a question of whether you address yourself to the criterion chosen by the regulation or whether you address yourself to its practical consequences and effects. Is that not the old form and substance issue?
MR BENNETT: No, your Honour, because if the effect is caused by exhortation or the absence of exhortation, then there is a line between the two and it is not causation in the relevant sense. The assumption the plaintiffs make in this case is that the reason why advertising of the type being considered produces more litigation is that it informs people of their rights and informs them of what they can do in order to exercise them. It ignores the fact that a large part of the reason why advertising gives rise to action on the part of the recipient of the advertisement is that human nature is such that exhortation has an effect. That is why so many advertisements for products consist of nothing more than the name of the product and perhaps a smiling face. Exhortation has an effect.
McHUGH J: But what does exhortation have to do with it? With respect, it seems to me that you are operating in the wrong area of discourse. Surely it is a necessary implication of Chapter III that people who have rights in Chapter III courts can have the benefit of legal advice and representation from lawyers. The whole object of this legislation on its proper construction is to prevent people bringing litigation in federal courts and other courts by seeking to minimise the circumstances in which lawyers can proffer them advice, so there is a practical burden on litigants in federal courts.
MR BENNETT: Your Honour, I would respectfully dissent from the word “prevent” and the words “practical burden”. What is done here is to prevent lawyers exhorting people to go to law or persuading people to engage them for that purpose. It does not prevent any person exercising that person’s rights, it does not prevent a person being informed simpliciter of legal rights. What it does is prevent the advertising of particular services.
McHUGH J: Yes, but it is the object of the legislation. We have the Premier’s own say-so and we have the concession from the Solicitor‑General for New South Wales, that one of its objects is to reduce personal injury litigation. That is its plain object.
MR BENNETT: Your Honour, the word “reduce” is on that side. The word “prevent” is on that side. They are nothing to do with each other. They are totally different concepts.
KIRBY J: It is to prevent a particular category, the claims in the defined area for up to $100,000. That is the object of it.
MR BENNETT: To prevent the encouragement of litigation in that area.
KIRBY J: People who have disputes ‑ ‑ ‑
McHUGH J: Let us concede the debating point to you about this distinction. The practical effect is that this regulation so operates to make it difficult for people to bring actions in the courts.
CALLINAN J: So do Limitations Acts.
MR BENNETT: Yes. Your Honour, I do not accept that it does make it difficult. In my respectful submission, all it does is prevent people being exhorted or persuaded to do something.
KIRBY J: Maybe it does not make it difficult if you are Queen’s Counsel, but if you are a little person in the suburbs of Australia and you do not know whether or not you have a cause of action, you are disgruntled, you feel that unfairness has been done to you and you want to know how you get to a court, then unless you are told, you often do not do anything or, as we know in the Court, you do something too late.
MR BENNETT: One can go to the Yellow Pages. One can ask a friend. One can do many things.
KIRBY J: Yes, but the Yellow Pages are not going to be able to have anything now either. You cannot put it in the Yellow Pages. That is an advertisement.
MR BENNETT: The Yellow Pages will find one the Legal Aid centres ‑ ‑ ‑
KIRBY J: You just run your thumb, do you, down the list of the lawyers?
MR BENNETT: No, it will find one Legal Aid ‑ ‑ ‑
KIRBY J: You might strike a person who is an expert in probate when all you have is a broken and fractured femur.
MR BENNETT: And no doubt, your Honour, the probate expert will send one to someone who is expert in this area, or one can ring the Law Society. There are many ways which are open to people in a practical sense to obtain cheap legal advice, free legal advice.
KIRBY J: People are frightened – a lot of people are frightened and advertisements are the way that we bring knowledge to citizens of how they can pursue their rights. I mean, that is the whole point of the market. I thought we were all converts to the market today, but not apparently in this particular case. Legal Aid is being cut back. Legal Aid is not being made available. Lawyers are being encouraged to do pro bono. But for little people this regulation makes it very difficult for them to know where they go or what they do or whether they should do something to pursue their grievance.
MR BENNETT: Your Honour, to hypothesise a person who is so unsophisticated that the person does not know that personal injury may give rise to legal rights and does not know that there are such things as Legal Aid bureaus and community legal centres ‑ ‑ ‑
KIRBY J: There is not too much legal aid in personal injuries. The whole pressure is to put caps, limitations, restrictions, prevent lawyers and to shift the burden from the injured to the injurer.
MR BENNETT: Your Honour, that is, with respect, the sort of decision which has to be made by Parliament and balanced. There are considerations, as was put by my learned friend, the Solicitor for New South Wales, the other way. There are people who say, “I would like there to be surf lifesaving clubs and other communal organisations which are able to carry on and have functions and events and get public risk insurance”.
KIRBY J: Yes, you can strike at the root. This is the point Justice Hayne was raising. You can strike at the root of the existence of the cause of action or you can ‑ ‑ ‑
McHUGH J: You can do many things. You can change the law.
KIRBY J: But you cannot put a barrier in the Chapter III courts in the way of people to come to litigation.
MR BENNETT: But, your Honour, the point I am making is that this does not put a barrier in their way. To hypothesise a person who is of the degree of unsophistication that the person does not know that one can take the Yellow Pages and try and find a community legal centre or the public solicitor or a Legal Aid office or a solicitor and ask the solicitor if that solicitor or someone else will do a case cheaply or on spec or whatever or on a pro bono basis ‑ ‑ ‑
McHUGH J: Mr Solicitor, just take a practical illustration from the advertisements in this case, how many laypersons and, for that matter, how many lawyers, would be aware that they may have rights under the disability provisions of superannuation entitlements - not too many, I would say – and without being told about them they just do not bring any claim in respect of them.
MR BENNETT: Yes, and your Honour, there is nothing to stop APLA or anyone else placing material in the public view which informs people of their legal rights. That is just not what this does. What it does is stop the advertising or promotion of the availability or use of legal practitioners in personal injury cases. That is all it does. Your Honour focuses on one aspect of the proposed advertisement, an aspect which does not itself, on its own, fall foul of the regulations.
McHUGH J: Yes, but you are looking at it from the point of view of what is done to the barrister and solicitor. The other way of looking at it is what effect it has on the citizen, on the potential litigant, who has a cause of action, does not know it. Surely the state of New South Wales, or any other State, or for that matter the Commonwealth, cannot say lawyers shall not advise people about their rights in respect of federal claims.
MR BENNETT: It does not say that.
McHUGH J: No, I know that. It does not say it in terms but that is its practical effect, is it not?
MR BENNETT: No, your Honour, we would submit not. We would submit this does not prevent anyone ‑ the hypothetical organisation for the informing of the public of legal rights could put ads in any paper it wished telling people everything which is in the second plaintiff’s database.
McHUGH J: They may be able to but that barrister, that barrister, that barrister, none of them can.
MR BENNETT: They can as long as they do not promote themselves or their availability or use in doing so.
GLEESON CJ: “Availability” is the key word because a lot of this advertising is directed towards informing people that they can be represented on a particular financial basis.
MR BENNETT: Yes, and, again, there is nothing wrong with an APLA advertisement which simply says, “Many lawyers are willing to work pro bono or on a speculative basis”, or whatever.
McHUGH J: But it is very important. The late Mr Lusher told me a story once about meeting a person who had lost an arm as a passenger in a motor vehicle in Victoria, never brought an action in respect of it, could not find anybody to act for him. He would have been swamped if he had been in New South Wales, there would have been plenty of lawyers in New South Wales that would have acted for him.
MR BENNETT: Well, one does not know whether he did not have a good cause of action, or not.
KIRBY J: It sounds pretty good if he is a passenger. I am not giving an advisory opinion.
MR BENNETT: The point we make is that the method by which this regulation seeks to reduce litigation is not to prevent a single person. It is to prevent people being exhorted or encouraged and it is human experience that exhortation or encouragement will cause people to act in a particular way. An advertisement saying, “Ducks feel pain, don’t shoot them”, will no doubt encourage some people not to shoot ducks. An advertisement saying, “You can win money if you bet on a particular contingency”, no doubt will encourage some people to do so. An advertisement saying, “If you have a right, sue”, will no doubt induce some people to sue who would not otherwise sue. One cannot, in my respectful submission, make the assumption that a regulation directed at promoting and advertising, directed at exhortation, is in some way preventing people from doing something any more than advertisements saying, “Don’t smoke. Smoking causes cancer”, and so on, prevent people smoking. They do not. They discourage them from smoking.
As I have submitted, there is no right contained in Chapter III, no implication in Chapter III which says that people must not be discouraged or dissuaded by verbal persuasion from suing or not suing. If that were not the case, a government which encouraged mediation as a means of settlement of disputes could be said to be acting contrary to an implication in Chapter III because it was preventing, to use the word that has been used in this Court, people from litigating. It is not doing that at all, of course. It is preventing people from persuading or dissuading.
If one had a body which believed as, if you like, a political belief that everyone who had a right at law should enforce it and that no cause of action should go unsued for and that every piece of litigation should be brought to its conclusion without settlement, if an organisation had that belief and advertised, “Don’t mediate. Litigate and fight for your rights” and so on and that were to be prevented by some State or Federal Government – the Federal Government acting within some power in section 52, a State Government, of course, acting under its general powers – that would not be in a protected area under Chapter III.
GLEESON CJ: Is APLA Limited a trading corporation?
CALLINAN J: It is a company limited by guarantee.
MR BENNETT: Probably not, your Honour. It may be. Certainly there are cases which suggest that one can be in trade and commerce although one’s primary motivation is altruistic, as the Ku-ring-gai Building Society Case and there were other sporting club cases ‑ ‑ ‑
GLEESON CJ: What about Maurice Blackman Cashman Pty Ltd, is that a trading corporation?
MR BENNETT: Yes, your Honour.
GLEESON CJ: So it is within the law‑ making power of the Federal Parliament?
MR BENNETT: Yes, your Honour.
McHUGH J: You reject Justice Dawson’s dictum in Street’s Case?
MR BENNETT: Yes, and we say also – and we have put some submissions on this – that the times have changed since then in any event and in many ways the Bar has changed since those days. But certainly in relation to firms of solicitors, we would submit that there is no doubt that they are engaged in trade and commerce in the relevant sense and the sale of services.
There is a more difficult question in relation to pro bono community legal services, but even though, we would submit, if the activities are primarily activities that are in trade and commerce, the mere fact that a motivation may be altruistic does not take it out of that. Of course, in engaging in litigation today on behalf of plaintiffs one can earn a living and recover one’s costs by cost orders in the cases in which one is successful without necessarily charging the client, even without charging the client disbursements. That, of course, is a common feature of modern litigation.
GLEESON CJ: If the Commonwealth Parliament enacted a law that said “No trading corporation engaged in the provision of legal services shall advertise the availability of those services to members of the public”, that would bring you directly to the question we are now concerned with, would it not?
MR BENNETT: Yes, your Honour, it would. What one has to do by analogy to the Lange principle is find in the text and structure of Chapter III something which says that the persuading of people to litigate, what used to be known as barratry in some contexts ‑ ‑ ‑
GUMMOW J: It says “to provide legal services” actually. They can be legal services by way of mediation.
MR BENNETT: Yes, but the implication that is sought to be found is an implication protective of people being persuaded to litigate. That is why I gave my example of the State which chooses to ban advertisements which say, “Don’t mediate; litigate”. The State is entitled to protect its courts from being swamped. It is entitled to discourage people from engaging in litigation.
GUMMOW J: Why do you say “protect its courts”? The theory is that it is part of the responsibility of the other branches of government to establish and sustain a healthy court system.
MR BENNETT: Yes, your Honour, but the system would collapse if every person who had a cause of action in any amount, whether five cents or a million dollars ‑ ‑ ‑
GLEESON CJ: Knew about it.
MR BENNETT: No, your Honour, that is not what this is directed to. The system would break down if every person who had a cause of action sued, in the same way as the criminal justice system would break down if every single person charged with an offence pleaded not guilty. Of course, that is one of the most sacred rights that a person has but one would be entitled to discourage or prevent a body which advertised “Make them prove it in every case. Never plead guilty”. That would not be within the protected area. That would be something which a government would be entitled to discourage because, among other things, it is consistent with the provision of courts for the purposes of Chapter III because it enables them to exist and operate, as they would not be ‑ ‑ ‑
GUMMOW J: The point is, Mr Solicitor, that the legislative branch passes laws that fill perhaps five volumes each year. That creates an enormous complex of rights and norms which are potential objects of litigation. That being so, there is a concomitant responsibility upon those legislators to sustain the Executive branch to vote the necessary funds and make the necessary arrangements to sustain a court system that will deal with the inevitable consequence of this legislative flood. It is not a question of protecting the courts. The other branches inevitably generate that with which the courts are going to have to deal because people have an enormous burden of rights and responsibilities placed upon them every year, many of which they will not know about.
MR BENNETT: Your Honour, that is a different question, as I have said, and that is just not involved in this case, the question of not knowing about what one’s rights are.
GUMMOW J: The federal jurisdiction is all about, in practical terms, rights arising under federal laws. That is what flows into the Federal Court.
MR BENNETT: Yes, but not necessarily the ability of people to encourage the exercise of those rights in every ‑ ‑ ‑
GUMMOW J: Created by the Parliament, which creates them on the basis they will not be exercised. That seems rather ridiculous.
MR BENNETT: Your Honour, if someone owes me 5 cents, I am entitled to sue for it.
GUMMOW J: We are not talking about small actions in common law debt, Mr Solicitor.
MR BENNETT: I know, your Honour.
GUMMOW J: We are talking about federal jurisdiction at the moment in a practical sense – 76(ii).
MR BENNETT: Your Honour, one might have a right within federal jurisdiction to a very small – there might be a claim against the Commonwealth for less than $1. Now, there would be nothing wrong with legislation which endeavoured to dissuade or prevent the encouragement of litigation for less than $1. The mere fact that one can bring it, that one has the right to bring it, does not mean that it is ‑ ‑ ‑
GUMMOW J: The answer is in the Parliament of the Commonwealth. They can create the right with the necessary curtailment in its creation. What they seek to do is to get the public acclamation for passing the laws, creating the rights, and then you seek to cut that down by this backward method, by saying you are saving the courts in some way or other.
MR BENNETT: Your Honour, once one accepts that the bringing of litigation is not in itself a value protected by Chapter III, it is availability which – if something is protected by an implication, it is the availability, not the person’s right to do it, ability to do it and so on.
McHUGH J: But one has to look at the principles that underlie Chapter III. The case that seems to me to be closest in point here is The Commonwealth v Queensland where Queensland passed legislation saying it is lawful to refer a case to the Privy Council concerning a law of the State of Queensland, and this Court struck it down on the basis that it conflicted with the principles underlying Chapter III of the Constitution, because it interfered with the whole structure which was meant for cases to go from this Court. You had to go to this Court, get an inter se question, et cetera. There was no direct conflict with any provision of any section in Chapter III, nor, arguably perhaps, for the structure. It was just inconsistent with the principles upon which Chapter III was constructed.
MR BENNETT: But, your Honour, discouragement or encouragement or the prohibition of encouragement is not inconsistent. This Court has held that one may impose a requirement for special leave, for example, on appeals to this Court and one can impose time limits. One can erect ‑ ‑ ‑
McHUGH J: That is done by the Parliament under 51(xxxix) of the Constitution. It gives them express power.
GUMMOW J: And section 73.
McHUGH J: And 73, a combination of the two.
MR BENNETT: Yes. It is an illustration, I suppose, of the proposition that the right to litigate is not necessarily to be accompanied with the right to persuade people to litigate or the prohibition on the persuasion of people to litigate. That is why I referred to barratry and the old common law rules about maintenance and champerty. The courts have long recognised that their services could not be provided if every person who had a cause of action brought it.
HAYNE J: Would you accept that a State law, the legal operation of which was to prevent or impede access to federal jurisdiction, would be invalid?
MR BENNETT: Subject to a qualification about the meaning of the word “impede”, yes.
HAYNE J: That is, if its legal operation is of that kind, it would be invalid?
MR BENNETT: Yes, your Honour.
HAYNE J: What then, does one do with the practical effect notions developed particularly in connection with section 92? Are they relevant in this field of discourse?
MR BENNETT: Not where there is an intervening act of free choice. Your Honour, a State law making mediation facilities available in the federal jurisdiction would no doubt have the effect of reducing federal litigation, but that would not be invalid.
HAYNE J: The practical effect doctrines developed in connection with a constitutional prohibition, a freedom, relevantly a freedom having in important respects, though not exclusively, economic features. Now, does that mean that the ideas developed in that context have no operation in this present context?
MR BENNETT: To the extent that they might otherwise be applied to situations of persuasion or dissuasion, they do not have application. The persuasion or dissuasion will always have a statistical effect, but it leaves freedom of choice intact. The prohibition of persuasion or dissuasion is permissible if otherwise within power and for appropriate purpose.
Your Honour, that is the short point that this case is about, and if the plaintiffs are right, it would be contrary to an implication in Chapter III for the Commonwealth or a State to endeavour to reduce federal litigation by encouraging settlement of disputes or mediation or submission to arbitration for that matter. Whatever implications there are, are implications about availability and about what occurs when one goes to court. They are not about influencing by persuasion the decision to go to court or not. Wherever the line is drawn, it is drawn short of the prohibition of such persuasion, and the ‑ ‑ ‑
GLEESON CJ: What is the relevance to this point of the purpose of the regulation? Suppose you had a general prohibition as you used to have on advertising by solicitors which was an aspect of regulation of professional conduct for ethical reasons, that would have the same practical effect, indeed, it would have a larger practical effect. But when you are dealing with an implication under Chapter III, what is the relevance of the fact that the acknowledged purpose of this is to reduce litigation?
MR BENNETT: Simply, your Honour, that there is no implication in Chapter III which would prohibit that purpose or laws directed to that end, and, indeed ‑ ‑ ‑
McHUGH J: No, but surely the object makes the difference between whether it directly affects the operation of Chapter or affects the implication, or whether it incidentally affects it.
MR BENNETT: Yes.
McHUGH J: So if you construe it, if its object is to regulate behaviour of practitioners from an ethical point of view, well it may burden the Chapter III implications, but it does so incidentally. But if its object is directed at those implications, then it is another matter.
MR BENNETT: We answer that in two ways, your Honour. The first is by analogy to what your Honour said in Cunliffe.
McHUGH J: Nobody relied on Chapter III in Cunliffe, if I remember rightly.
MR BENNETT: No, I said by analogy, your Honour.
KIRBY J: Chief Justice Mason certainly referred to it in the passage quoted by Mr Basten in his submissions.
MR BENNETT: Yes, but the aspect I was thinking of was this, that the objective sought to be achieved is not inconsistent with the purpose of Chapter III. There is nothing inconsistent with the purpose of Chapter III that people should be discouraged from encouraging, promoting or persuading to litigate. There is nothing inconsistent with Chapter III in that.
McHUGH J: Mr Solicitor, you keep looking at it from the point of view of the barrister and solicitor. Why is it not the proper way to look at it from the point of view of the client, that the object is to prevent a client obtaining information as to that person’s right?
MR BENNETT: Your Honour, with respect, I dissent from that description of the object.
McHUGH J: I know you do, I know.
MR BENNETT: The object is not to prevent anything except persuasion. The object is by preventing persuasion to have the practical effect that fewer people will chose to litigate. The other analogy, I suppose, might be Langer. Again, one has the right to vote and to fill out the ballot paper as one sees fit. It is permissible to prohibit a person from filling it out in a way which renders the vote partially invalid because one is entitled to say, although a person may have a right to do something, we will prohibit people from endeavouring to persuade him or her to exercise that right. There is a huge chasm between prohibiting something and prohibiting the advocacy of that thing.
GLEESON CJ: Can we put to one side for the moment the element of encouragement in the sense of exhortation involved in these advertisements. An equally important element in them is the element of facilitation, is it not, by providing legal services on certain financial terms? Is one of your arguments, it may be right or it may be wrong, but is one of your arguments that there is no implication in Chapter III that people have a right to be assisted to litigate?
MR BENNETT: Your Honour, it depends which meaning of the word “assisted” your Honour is referring to. There would be an argument that Chapter III would preclude legislation prohibiting legal assistance in federal proceedings. No doubt it would be a strong argument to that effect on a broad brush approach, although it might be permissible to deny legal assistance in particular areas where one can demonstrate a justification, for example, very small claims, and we have seen examples of this. “Assistance” in that sense ‑ ‑ ‑
GLEESON CJ: Suppose you had a law that prohibited – I am trying to think of an elegant way of describing speculative actions - you know what I mean, a law that prohibited that kind of arrangement between a lawyer and a client assuming that its purpose was not one of ethical regulation but of reducing litigation.
MR BENNETT: Your Honour, that would be closer to the line. There would be arguments that could be put either way in relation to that, but this case is a very long way from that. That would be a borderline case on which one could argue either way.
Your Honours, I should move to section 92 because I have gone over the time I was allotted. I might by way of excuse say that one reason is that the clock on the lectern is about 20 minutes slow. I say that by way of excuse or apology.
Your Honours, in relation to section 92, our primary point is the point just made by my learned friend, Mr Sexton, and that is that because virtually all trade and commerce must have an element of something included in interstate intercourse, whether it is goods, crossing a border or people crossing a border or communications crossing the border, if one said whenever both are involved one applies the intercourse test, not the trade and commerce test, then the Cole v Whitfield trade and commerce test would simply never be applicable and one would always be applying the other test.
We submit the appropriate resolution of that problem is, for reasons we have put in our submissions, to say that where both are involved one applies the trade and commerce test. If that is so, of course, there is no question that this case does not discriminate in any way against interstate trade and commerce.
McHUGH J: It is rather ironic because for about 50 years the view was taken that the carrier was not in trade or commerce but was merely an adjunct to trade or commerce, but now you would say the carrier falls under the trade and commerce and not the intercourse then.
MR BENNETT: Yes, your Honour. Of course, now that intercourse covers communications, there are very few communications which do not at some point cross State lines. The scope of the intercourse limb in section 92, if one applies it in full to all cases where some communication happens to cross a State line in the course of it, would create a very great restriction on the legislatures of the Commonwealth and the States.
The word “anarchy” was used in one of the cases as to what might flow if one were to apply the intercourse test to all trade and commerce. We have dealt with this at paragraph 66 and following of the submissions. Assuming one has the trade and commerce test, the Cole v Whitfield test, I do not need more than one sentence. There is just no doubt that there is no discrimination here against interstate communication or interstate trade and commerce.
McHUGH J: It does make you wonder whether Cole v Whitfield was rightly decided though, does it not, when you have to break up this trade and commerce on the one hand and intercourse on the other?
MR BENNETT: In my respectful submission, that is what one has to do. May I also say this about it, that even if one applies the intercourse test in this case – we have dealt with that at paragraph 66 – the question is whether the impediment to interstate intercourse is greater than is reasonably required to achieve the law’s object, assuming that that object is not itself to impede interstate intercourse.
Taking that test from the AMS Case this clearly falls within it. One has a purpose which is the purpose, ultimately, of reducing insurance premiums, of preventing people from being encouraged to litigate certain types of claim and the restriction on interstate communication is very much incidental to that and no more than reasonably required. So we would submit even if one applies that test the result is the same. Otherwise, the plaintiffs have not spent any time addressing the Court on section 92 and I will simply refer to and adopt my submissions.
The minor matters I wished to mention were these, and I hope I am not using the word “minor” in any offensive way, first, that there is no extraterritoriality problem in this case for the reasons given in paragraph 70 of our submissions. Again, that has not been separately argued and I will not devote time to arguing it separately. The second matter to note is that when one looks at what Cunliffe is authority for it should not be regarded as being authority for some proposition that the type of communication involved in that case, namely, to the extent that it involved communication, private communication between an adviser and potential clients, or even actual clients, was covered by the Lange freedom.
One only gets that result if one adds opinions expressed in minority judgments to opinions expressed in the majority judgments and I do not need to take your Honours to the law on the appropriateness of that course. In relation to severance, for the reasons I have given, we would submit the appropriate course is for judgment to be delivered on all aspects of this case other than severance and directions then to be given as to the appropriate means of the parties putting in submissions on severance and, if necessary, applying to the Court for a further hearing.
It will all no doubt depend on what basis, if any, the plaintiffs were to succeed on. Of course, it will not arise if they fail. If they succeed on one basis the question of what should be severed may well depend on the basis on which they have succeeded and we would submit that is the appropriate course. For those reasons we respectfully submit that the Court should find for the defendants in relation to this claim. If the Court pleases.
GLEESON CJ: When we take the luncheon adjournment, after that we will resume at 2.00 pm. That should mean that people will not have to curtail the time they were intending to take. Yes, Mr Solicitor for Western Australia.
MR MEADOWS: May it please the Court. If I might be forgiven for going back to what might be regarded as something of a grass roots issue, could I remind the Court of what was said in Lange 189 CLR 520. At page 564 at about point 8 the Court said:
Under a legal system based on the common law, “everybody is free to do anything, subject only to the provisions of the law”, so that one proceeds “upon an assumption of freedom of speech” and turns to the law “to discover the established exceptions to it”.
So it is that in relation to the Lange principle that it is necessary to discern from the Constitution whether there is any limitation on legislative or executive power which would seek to curtail the ability of people to communicate freely about political and government matters.
In our submission, the same approach needs to be followed in this case. In other words, if we are going to look to Chapter III for the purposes of seeing whether there is any relevant implication, it must be an implication which is negative in nature, that is, one which would invalidate any law or executive action.
Perhaps it is sufficient for me to refer to what his Honour Justice Brennan, as he then was, said in Cunliffe v The Commonwealth 182 CLR 272 and in particular at page 327, where his Honour said:
The implication is negative in nature: it invalidates laws and consequently creates an area of immunity from legal control, particularly from legislative control.
I would note in passing that your Honour Justice Kirby cited these passages that I have referred to with approval in Coleman v Powers [2004] HCA 39 in paragraph 253 of your Honour’s judgment.
KIRBY J: Well, what is the argument against there being a negative implication that you cannot negatively try to prevent people who have causes of action from receiving actual legal advice and getting actual assistance to bring those to resolution in the court?
MR MEADOWS: I am coming to that, your Honour. The point that I am trying to make at the present time is that one must look for some negative implication and that we are not here looking for the existence of some freestanding right which might be derived from the Constitution.
You do not have to turn to the Constitution to discern the existence of the right of citizens to be informed about their legal rights or, for that matter, to resort to the assistance of legal practitioners in order to ascertain those rights. These are rights which simply exist under the general law or by virtue of the general law. So we would say that consistently with the approach taken in Lange, if there is any such right, it cannot be some freestanding right conferred on individuals by the Constitution. It is something which is there by virtue of the common law, and what would need to happen is to ‑ ‑ ‑
KIRBY J: But is not the importance of Lange that it took the step of coalescing the Court around the principle of anchoring the implication in the text of the Constitution that States cannot enact laws which inhibit, in that case, the political system that the Constitution establishes, so there is not really a debate in this case, is there, that here the suggestion is that we have the regulation, it is a State regulation and it is said to impede the coming at Chapter III. So I just do not see that these are live controversies in this case.
MR MEADOWS: If you are speaking about whether the principle in Lange applies in this case, then I would agree with your Honour. We would say that it clearly does not because the issue that we are talking about, particularly in its context, has nothing to do with political or government matters in the context of the elections or the referendum provisions.
KIRBY J: Not then, but there is the argument that it is governmental in the wider sense of the Chapter III part of government. If it is in the Constitution, it is part of government. We cannot get away from that.
MR MEADOWS: I accept that it is part of government in that it deals with the judicial arm of government, Chapter III. All I am saying is that the test in Lange is related to political and government matters which are to do with the elections and the referenda provided for by the Constitution.
KIRBY J: I will not say it again, but that was because that was what that case was about, but the principle, if you look at it conceptually, something that we of the common law tend to resist, the concept is you cannot put a burden by State law on the proper working of the federal Constitution in all of its aspects of government. That includes Chapters I and II, which was Lange. Now we have a new case, Chapter III.
MR MEADOWS: Yes, which I am going to come to, but what I am saying is you cannot derive from any principle in Lange anything to do with Chapter III of the Constitution because the principle that was developed there was not related to Chapter III.
KIRBY J: Except the approach which was given, which you would then, if you are in our position, seek to answer this case in a way that is compatible with the approach which was taken to Chapters I and II.
MR MEADOWS: That was the point of my primary submission that I have put to the Court, that you have to adopt the same approach and look for a negative implication.
HAYNE J: What do you understand the negative implication to be that is urged against the position you adopt?
MR MEADOWS: My understanding of the negative implication which is being put by the plaintiffs is that you can discern from Chapter III of the Constitution a limitation on legislative and executive power which would invalidate laws which interfered with the system of justice prescribed by Chapter III of the Constitution.
HAYNE J: A more narrow formulation of the implication would be the implication urged against you, being that no law may be made that would prevent or impede persons from receiving unsolicited invitations to consider whether they may have a right which they may wish to enforce by resort to the judicial power of the Commonwealth. That is to tailor the implication to the particular facts of the case rather than to seek a more general statement of the implication, but its content relevantly appears to be of that kind. Do you see the case against you differently?
MR MEADOWS: No, I do not, your Honour. What I see as the case being put by the plaintiffs is that as an extension from that – I was going to say “principle” because I am not prepared to concede that it is a principle. That is the principle that is being put by the plaintiffs – has an extension to it which takes you into this particular area of operation, that takes you into the area of advertising by lawyers to potential claimants in order to seek to procure their services.
That, we would say, is to put it this way, something of an implication based on the fundamental implication which we would see the plaintiffs as having sought to derive from Chapter III of the Constitution.
McHUGH J: But if you want to relate the implication – I do not say the only implication, but an implication to the text of Chapter III, why can you not fasten on section 71 itself and the definition of “judicial power” and say that the negative implication is that no law of a State or the Commonwealth can affect or impede the determination within federal jurisdiction of legal rights or duties? If that is a proper negative implication to be drawn from section 71, why can you not say that the object of this regulation being to prevent persons bringing actions, including within federal jurisdiction, its operation affects that implication, it impedes the determination within federal jurisdiction of legal rights and obligations?
MR MEADOWS: For the reasons which my learned friend, Mr Bennett, put to you, I would dissent from that particular point of view. Can I just say this, that you do not have to look to implications in section 71 in order to say that litigants should be capable of bringing proceedings in federal jurisdiction to invoke the judicial power of the Commonwealth ‑ ‑ ‑
McHUGH J: The implication I formulated for you really was not in terms of litigants, it was a protection of the judicial power of the Commonwealth itself, just in the same way as some members of this Court held that the contempt power arises out of Chapter III itself.
MR MEADOWS: It does because it is a part of the concept of judicial power but it is not so much an implication. It is something which, as a matter of construction, flows from section 71 which is the source of the judicial power of the Commonwealth.
GLEESON CJ: Is that a convenient time, Mr Solicitor?
MR MEADOWS: It is, your Honour.
GLEESON CJ: We will adjourn until 2.00 pm.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.00 PM:
GLEESON CJ: Yes, Mr Solicitor.
MR MEADOWS: May it please the Court. May I come back to what I was saying before lunch about the nature of the limitation which would need to be found. If I could, once again, take the Court back to the judgment of the court in Lange at page 561 where the Court said:
However, the freedom of communication which the Constitution protects is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution.
We would submit that applying the same approach to Chapter III, what you have to look for is a limitation which is limited to what is necessary for the effective operation of the system of justice provided for by Chapter III and to develop that further, if I can take the Court to page 567 of the judgment in Lange and to adapt what is said there.
KIRBY J: Which page?
MR MEADOWS: Page 567 in the paragraph at the top of the page where it is said:
Under the Constitution, the relevant question is not, “What is required by representative and responsible government?” It is, “What do the terms and structure of the Constitution prohibit, authorise or require?”
As I say, to adapt those words to the situation here, the question is not what is required by the judicial system; it is what do the terms and structure of Chapter III of the Constitution prohibit, authorise or require. So to the extent that Chapter III might require some form of freedom of communication between lawyers and their clients, the implication is one which can validly extend only so far as is necessary to give effect to Chapter III.
In this case, it is not necessary for your Honours to define the limits of what implications might be derived from Chapter III. It is sufficient to deal with the regulations in question in this case. To pick up what your Honour Justice Hayne put to me before lunch, the question is, is the receiving of unsolicited invitations to seek legal advice about potential claims something which involves the exercise – in a claim which involves
the exercise of federal judicial power, something which is necessary to give effect to Chapter III? We would submit that it is not for the reasons which my learned friend, Mr Bennett, outlined before lunch. That is to say, these regulations do not prevent the giving of legal advice, they do not prevent people from being informed about their legal rights, they only prevent lawyers soliciting for clients.
Now, for the purposes of argument we can accept your Honour Justice McHugh’s proposition that any implication which exists may arise out of section 71 of the Constitution, and, your Honour, as I recollect, suggested that the implication may extend to a law which impedes the exercise of federal jurisdiction. However, in our submission, it is simply drawing the bow too far to say that a law which has the effect of preventing lawyers from soliciting for clients impedes the operation of Chapter III. This is so even if the politicians stated that the purpose of the law was to reduce the number of claims. It is important, we would submit, to focus on the effect of the regulations, and that is simply to prevent the solicitation or the touting for clients by lawyers by the use of advertisements.
May I now turn very briefly to section 92, and say that we agree with the submissions put by my learned friend the Solicitor‑General for the Commonwealth. We too have submitted in our written submissions that the trade and commerce limb of section 92 needs to be treated differently from the intercourse limb, and this is set out in some detail in paragraphs 25 to 37 of our written submissions and we would commend these to your Honours.
We would go one step further and say that when it comes to the intercourse limb, it is necessary to decide whether the legislation has the purpose or effect of imposing a burden or restriction on intercourse by reason of the crossing of a State border. That is to say, it is necessary to ask the question: does it discriminate by reason of the crossing of a State border? However, in our submission, it is unnecessary for the Court to actually answer that question in this case because it is quite plain, in our submission, that the activity for which the plaintiffs contend is clearly in trade and commerce and is therefore picked up by the first limb and Cole v Whitfield would apply and there is no way that these regulations are protectionist in character.
So, if it please the Court, they are our submissions.
GLEESON CJ: Thank you, Mr Solicitor. Mr Solicitor for South Australia.
MR KOURAKIS: Your Honours, I wish to address two questions. The first is the content of the test for infringement of implied rights and, secondly, to address the question of the implication, if any, that arises from Chapter III.
As to the first issue, it is the second limb of the test that I wish to direct my submissions to. Your Honours, determining whether a legislative or executive act is reasonably appropriate and adapted to a legitimate end involves, in my submission, a process of reasoning that is similar to the test that is applied to determine the validity of subordinate or delegated legislation.
His Honour Justice Brennan drew that connection in Cunliffe 182 CLR 272 at pages 323 to 325. In that connection and context his Honour referred to his judgment and the joint judgment in South Australia v Tanner 166 CLR 161. I will not take your Honours to Tanner. Your Honours, it is the history of the use of the words “reasonably appropriate and adapted” in contexts like the determination of the validity of delegated legislation that, in my respectful submission, your Honour the Chief Justice had in mind, for example, in Mulholland recently.
If the words or the formula “reasonably appropriate and adapted” is given a consistent meaning then, in my submission, it can be applied in a way that is familiar to the courts without importing notions from other constitutional contexts. The application of the principle or the formula in a similar way means that the test in an infringement case is whether the appearance or the assessment of legislation that appears to impose obligations, on their face, excessive, arbitrary or inconsistent demonstrates that the legislation is not appropriate and adapted to the legitimate end that is, that an assessment of the legislation having those features can be said in fact to have as its purpose the pursuit of the prohibited end.
McHUGH J: What context are you talking about? Are you talking about freedom of political discussion or are you talking about the implication arising from Chapter III?
MR KOURAKIS: In my submission, a similar test for infringement would apply to any Chapter III implication as that which arises from Chapter I and Chapter II.
McHUGH J: I think there are some difficulties about that applying to Chapter III. You can hardly talk about a law that, for instance, is on its face contrary to Chapter III is nevertheless valid because it is reasonably appropriately adapted to achieve some end compatible with Chapter III. Under that rubric there would not be much of Chapter III left.
MR KOURAKIS: In my submission, not so. Indeed, it is my submission that it is necessary to import such a test, especially if the test is stated widely and as widely as your Honour Justice McHugh articulated it before lunch, because there are well‑accepted and, in my submission, constitutionally valid restrictions on the bringing of proceedings ‑ ‑ ‑
McHUGH J: Well, take a clear example, Mr Solicitor. Supposing the Federal Parliament set up a tribunal to determine matrimonial causes. Surely that could not be justified on the basis that it was reasonably appropriate and adapted to have a tribunal because you are seeking to achieve some end compatible with Chapter III.
MR KOURAKIS: Your Honour, that legislative attempt would fail because it was incompatible. Both elements of the second limb would be necessary, reasonably and appropriate – that is, the legislature would have to satisfy both limbs, that it is reasonably appropriate and adapted to a legitimate end that is not incompatible with the establishment of a separate and independent judiciary. Your Honour, vexatious litigant provisions impede access to justice but they are appropriate and adapted to a legitimate end. Nor are they incompatible with the establishment of an independent judiciary.
McHUGH J: It is not a question of being reasonably appropriate and adapted, it is because banning them is protective of the judicial process. It is a necessary implication that Parliament can take such steps as is necessary to protect the judicial process. That is why the law of contempt is consistent with Chapter III.
MR KOURAKIS: Your Honour, if the implication is limited to a prohibition on legislative attempts or attacks on the judicial process then there would be no need for the test that I have proposed. If it is to extend further then, in my submission, it is necessary to have this test because there are legitimate ends which the Parliament may wish to pursue which would otherwise be invalid if the implication is as broad as that articulated by your Honour. To allow legitimate legislative regulation in pursuit of some of those purposes, a test similar to that one used in Lange would ‑ ‑ ‑
McHUGH J: But it is not because it is reasonably appropriate and adapted; it is because, in a real sense, it does not burden. A law which regulates the ethical standards of lawyers prohibits them advertising in an outlandish way, for example, would have as its object regulation of the profession and any effect it has on Chapter III is merely incidental. It does not burden it in that sense.
MR KOURAKIS: Your Honour, an incidental burden is nonetheless a burden. If the implication is that the legislature cannot enact legislation that has the effect of impeding access, then it is necessary to have some escape valve – pressure valve, for legislation enacted to pursue some legitimate end such as the ethical work regulation of the profession. Ethical regulation will no doubt have the result that some claims, including some meritorious claims, may not be brought.
McHUGH J: In the section 92 jurisprudence, laws which only incidentally affected, restricted or burdened interstate trade or commerce were never regarded as infringing the freedom because their characterisation was as remote laws, not laws that directly affected trade and commerce.
MR KOURAKIS: Your Honour, arguably since Cole v Whitfield, a test that is reasonably appropriate and adapted to an end other than protectionism is a legislative ‑ ‑ ‑
GUMMOW J: We know that, but it is a question of translating these principles to Chapter III. You do not deal with it just by talking about Cole v Whitfield.
MR KOURAKIS: No. Your Honours, if the test is not to be applied then, with respect, it is simply a matter of formulating the prohibition so that it does not cover the unethical advertising, for example, that your Honours referred to. If that is the case, it will be a much more restricted implication. The alternative is to adopt the more flexible approach in those other areas. Your Honours, can I give examples of other occasions or other restrictions. Court fees, for example, may be increased under legislation to an extent which discourages litigation.
GUMMOW J: There was a question about that. Not that many years ago there was a huge increase in court fees.
McHUGH J: There was a suggestion of $10,000 to run a special leave application in this Court, a filing fee of $10,000. That was the proposal.
GUMMOW J: It did not get through the Senate, as I remember.
KIRBY J: No, but if it had, I think there are questions and there have been decisions. I believe that in some cases such fees would amount to a tax and you would have all sorts of other problems as to whether it is a burden on Chapter III.
MR KOURAKIS: Yes, and your Honour, the reason I raise it though, is simply to make this point. One can either deal with those problems by developing a jurisprudence that gives the answer as to whether an increase of a certain level is or is not a burden or one can apply the reasonably appropriate and adapted formula and test from Chapter I which allows some room for the legislature to regulate these things but with the court simply deciding whether their attempt is within or without power, applying the standard that comes out of the Lange test.
KIRBY J: I just do not think your analogy to delegated legislation is a very good one because in the field of constitutional elaboration, you have to think not in terms of the Dog Act and regulations under the Dog Act, but in terms of the whole political construct and how it is supposed to work together in a Constitution which is very, very brief in its language and therefore, you do not have the type of questions you have in judging delegated legislation. You are making, in a sense, a political judgment of how the Constitution is intended to operate.
MR KOURAKIS: Your Honour, the guidance from the text is much less useful. The issues are obviously larger and his Honour Justice Brennan himself observed that in construing the scope of constitutional powers one takes the liberal approach and the Court has taken an exactly opposite approach in construing the scope of legislative powers when it comes to delegated legislation. There are differences. It is the process of reasoning that is directed towards a test which goes to power and whether the legislation or executive act is within or without power, that his Honour Justice Brennan drew attention to.
KIRBY J: I think you do make a fair point when you say that the Court has got itself into a position where it is giving different formulations for permissibility of legislation under a section 92 issue, under a question of a Lange‑type issue and there is lurking behind these instances a constitutional concept that some things are permitted and some things are not permitted, and that dreadful phrase “appropriate and adapted” has been used to try to explain it in mystical terms, but there is a common thesis here, and maybe you make a fair point that we should be looking at the different formulations to try to find something which at least is generic to them all.
MR KOURAKIS: Your Honour, in the Lange test, in my submission, importantly the work is not left only to the expression “reasonably appropriate and adapted”, but also the question of incompatibility. A measure might be appropriate and adapted in the sense that it is rationally connected to the legitimate purpose that is pursued, but nonetheless, either the means, as Coleman v Power made clear, or the end, might on ultimate analysis be incompatible with the constitutional freedom that is protected. But ultimately, the test in my submission is one of incompatibility. One can ask and compare and weigh the respective merits of having the prohibition or not having the prohibition, but ultimately, the choice for this Court or the decision for the Court is not to make a legislative choice obviously, but to decide on analysis whether the position of the burden by the legislation is consistent with the continuing enjoyment of the constitutional freedom.
McHUGH J: The problem with “reasonably appropriate and adapted” is, from recollection, I do not think you will find many cases, if any, before 1987 where that expression is used. It was very popular for about a decade. We still have its legacy in Lange, but speaking for myself, I do not think we should be enthusiastic about extending it. It was never used in Sir Owen Dixon’s day.
KIRBY J: I think it was Justice Brennan who, reading Marbury v Madison, or perhaps Justice Deane brought it into our – and we all know what it means and any other formula maybe would not be any better, but it is a very obscure formula.
CALLINAN J: About as precise as a test of experience and commonsense.
KIRBY J: I think in Lenah Game Meats, Justice Callinan, you have reached into the section 92 jurisprudence to suggest something else, reasonably ‑ ‑ ‑
CALLINAN J: I think in Coleman v Power I suggested a slightly different formulation.
MR KOURAKIS: Your Honour the Chief Justice in Mulholland referred to a decision of his Honour Justice Higgins, I think it was in about 1917,
The Commonwealth and the Postmaster General 10 CLR 456 at page 469 where the expression was used there.
GLEESON CJ: He took it from McCulloch v Maryland.
MR KOURAKIS: Yes.
GLEESON CJ: Yes. You were going to give us some examples of restrictions?
MR KOURAKIS: Yes. The restriction of lawyers in small claims courts is a restriction that clearly affects the access to justice and the exercise of federal jurisdiction by some litigants; those that would have chosen to engage a legal practitioner but cannot in the small claims court. But that measure, in my submission, is adapted to the pursuit of another purpose and that is maximising the access of justice to many other litigants, including those who cannot afford to engage a lawyer against the insurance company or the large corporation. That, too, is an example, in my submission, of a form of regulation and restriction ‑ ‑ ‑
McHUGH J: Yes, but the term was used in determining whether or not a particular law was within a head of power. It goes back to McCulloch v Maryland. It is only from about 1987 onwards that we see this expression start to be used to justify laws which are in conflict with some prohibition, express or implied in the Constitution.
MR KOURAKIS: Yes. Your Honour, used in that context because it assists to identify a purpose, and whether the law or Act can be characterised as one that is directed to the prohibited purpose - that is, destruction of the freedom – or whether indeed it has another purpose. If it has another purpose then it will not be invalid as long as that other purpose is compatible with the freedom. One can use the tool for analysis to establish a purpose other than the prohibited purpose, and that is where it seems to have its function, in my submission.
Your Honours, as to the application of any implied freedom in this case, in my submission, it is important to bear in mind that the regulation, of course, does not prohibit advertising by lawyers as to their fees, even in a union journal, for example, as long as they do not mention personal injury in that. Lawyers can generally advertise the financial basis upon which they can be engaged. Others, that is non‑lawyers, can advertise the fact that some lawyers practise in a certain area, and the basis upon which financially they would be engaged. Both lawyers and non‑lawyers ‑ ‑ ‑
KIRBY J: You are making this regulation seem more and more discriminatory. I mean you can engage to large corporations and you can advertise to bankers and you can advertise to all sorts of wealthy people, but to ordinary folks you cannot, and that sounds discriminatory to me.
MR KOURAKIS: Your Honour, in a sense when it comes to personal injury, everyone is an ordinary folk. Everyone – it is a personal injury, if your Honour is referring to bankers and insurers ‑ ‑ ‑
KIRBY J: Not really. No, I do not agree with that. If you happen to be a banker then you are not – you know how the system works, you know lawyers, you have some idea of assertion of your rights and where to go for advice, but if you are somebody out there in the suburbs you may know these things. In the old days you got to know it through trade unions, they told you, but their numbers have dwindled in recent years, and public legal aid has dwindled and been cut back, partly because of Dietrich and, therefore, increasing numbers of people in matrimonial causes and in personal injury litigation they are just left to themselves, and they are frightened by the law. They are frightened by its costs, and this regulation stops them getting to first base. It is discriminatory.
MR KOURAKIS: Your Honour, all laws will apply throughout a community where the levels of understanding and financial levels vary and, for that reason, will have an effect that varies. In this particular case the law
does not prohibit the form of advertising that I have just mentioned. It is not directed, and does not in any way prohibit the engagement of the lawyer; that is, in terms of interfering with the contract of engagement and terms of engagement. It does not prohibit the communications between a lawyer once engaged. It is about as far back from the commencement of the exercise of judicial power as you can go. Chapter III confers judicial power. Judicial power does not commence to be exercised until the court’s jurisdiction is properly invoked. The advertising in this case is obviously directed at a step anterior to that.
It may well be that the imposition of obstacles, even before the commencement of jurisdiction, will make the conferral of federal jurisdiction an empty façade but, in my submission, that is not this case because it operates, as I have said, so far back and in such a limited way. If the Court pleases.
GLEESON CJ: Thank you. The Solicitor‑General for Victoria.
MS TATE: May it please the Court. We seek to make only two points, your Honours. Our first point is to indicate our support for the submission made by the Solicitor‑General for the Commonwealth in relation to section 92, namely that the intercourse limb of section 92 should be confined to non-commercial intercourse.
Our second point addresses the issue of the nature of any implication arising from Chapter III. We submit that any such implication would not be an implication directed to the protection of freedom of communications, as was the implication drawn from Chapters I and II in Lange. The Lange implication protected freedom of communications because it was a necessary implication for the provision made by the Constitution for a representative government.
McHUGH J: There must be some implications concerning freedom of communication that can be derived from Chapter III, must there not, Ms Solicitor, for instance, communication between lawyer and client? Surely that must be at least one implication.
MS TATE: We would say, your Honour, that the Lange implication was grounded upon the requirement that electors have a free and informed choice with an opportunity to gain an appreciation of the available alternatives.
McHUGH J: I understand that, and this case seems to me a long way removed from Lange. The question is whether or not there is – just answering what you have put about implications from Chapter III, surely there must be an implication in Chapter III that a lawyer and client engaged in federal jurisdiction can communicate with each other and that neither State nor government nor federal law can interfere with that right.
MS TATE: Your Honour, we would say that the preservation of the integrity of the federal judicial system has not been to date at risk by reason of any restrictions on the communications by lawyers in relation to the advertising of their legal services.
HAYNE J: Leaving that aside, do you get to a point where you constitutionalise legal professional privilege? If you imply a freedom of communication between lawyer and client, are you thereby constitutionalising legal professional privilege?
MS TATE: There could be a risk of that, your Honour.
HAYNE J: Is that a risk or is that something to embrace?
MS TATE: Your Honour, it is our essential submission that while any implication to be drawn from Chapter III may be an implication with respect to laws which impair access to the courts exercising federal jurisdiction, it is difficult to discern in Chapter III anything which relates to the exchange of information or communications. We would say essentially, your Honours, that any implication to be drawn from Chapter III ought not to be drawn as an extension or a variation of the Lange implication but ought to be seen, if it is to be drawn at all, as an implication which has an independent foundation and an independent content, not an extension of the protection of freedom of communications. It may be, your Honour, that ‑ ‑ ‑
McHUGH J: I was not putting to you that the case has anything at all to do with Lange. But take a law – let us assume a federal law – that said one party cannot ask another party for particulars of a statement of claim and statement of defence. It may be there is an implication of that, that it can only be justified in certain circumstances. These are implications that derive from the nature of the judicial process.
MS TATE: Indeed, your Honour. They are implications that are drawn from the nature of the judicial process and it may be that it is a subsidiary aspect of a right of the access to the courts that there be some limited recognition of a need for communication between lawyers and clients.
HAYNE J: But that would be founded in an assumption that Chapter III requires an adversarial system. The area for debate is very large if we are debating implications because what is the assumption that one makes from the structure and text of Chapter III, for example, about the nature of the judicial process?
MS TATE: It may be, your Honour, that clients clearly require information in relation to simply lodging claims for statutory forms of compensation. It may not be based upon an adversarial system, but to complete my answer to Justice McHugh ‑ ‑ ‑
GUMMOW J: I am not sure about that. In Davison’s Case 90 CLR 353 at 368 Sir Owen Dixon and Justice McTiernan look to what they saw as forming part of the exercise of judicial power as understood in the tradition of English law. That does seem to me to involve an adversarial system. They said there were exceptions to it and they indicated various ex parte procedures, but by and large it is centred on an adversarial rather than a civilian system.
MS TATE: Indeed, your Honour, the application for compensation under a statutory compensation scheme may only be a matter which is an additional form by which somebody could claim recovery. Of course, that would not at all be central to the system and it may be that the adversarial system is, in fact, central to the judicial system under Chapter III.
GUMMOW J: Hence, the motion of matter is a lis inter partes.
MS TATE: Indeed, your Honour. It has to be a justiciable controversy between the parties. That is accepted, your Honour. To return to my answer to Justice McHugh, it may be that it is a subsidiary part of the right of the access to the courts that there be a limited recognition of a need for communication between lawyers and clients. Our central submission is more fundamental than that, your Honour. It is a submission that it ought not to be seen centrally as a form of protection of communications, it ought not to be seen as an extension or a variant of the implication drawn in Lange; rather, it ought to be recognised as having an independent basis and content of its own.
KIRBY J: Let me understand that. Is the suggestion therefore that we have been so blinded by Lange that we have been focused very much on communications and in the realm of Chapter III we should be saying there are necessary implications and arguably one necessary implication is that there can be no inhibition by State law upon ordinary citizens being able to get access and being invited to find the ways to get access to knowledge about how they initiate and trigger the Chapter III process and that that is what the implication is, necessary to Chapter III, not that there be particular forms of communication, but you would then apply that implication to this case and say the regulation is contrary to that implication?
MS TATE: We have offered a construction of the regulation, your Honour, whereby there would be no inhibition on the publication of information about rights.
GLEESON CJ: How would you relate that to the fact that for most of the 20th century there has been a blanket prohibition upon advertising of the kind with which we are here concerned? Was that always contrary to Chapter III?
MS TATE: No. Indeed, your Honour, it is our submission that the existence of those restrictions, the co‑existence of those restrictions with a federal judicial system, which successfully operated, is an indication that those restrictions do not impair the functioning of the judicial system.
KIRBY J: That does not work, does it, because until 1956 there was the combined Conciliation and Arbitration Court and no one thought that that was incompatible with the Constitution or at least few did. Sir Owen Dixon always harboured that thought and then, ultimately, in 1956 in the Boilermakers’ Case it was struck down. This is how constitutional elaboration works. People make assumptions. No one questions it and then an implication is found. It was found in 1956 and in Theophanous and other cases it was found in the 1990s. Now we are invited to find another one.
MS TATE: Your Honour, it is not simply a case of looking at previous history, it is rather looking at the nature of the operation of that judicial system during the course of that history.
GLEESON CJ: But I thought it was accepted on all sides that a blanket prohibition on advertising, for the purpose of regulating the conduct of the legal profession in terms of their ethics, would not contravene whatever is the relevant implication.
MS TATE: No, indeed, your Honour ‑ ‑ ‑
GLEESON CJ: Well, let us start from that basis. If that is right, the contravention lies not in the nature of the implication but in the purpose of the regulation. It is because this regulation is not for the purpose of regulating the ethical standards of the legal profession but if there is an implication in Chapter III that no law can be enacted that prevents lawyers advertising their services and thereby prevents citizens from getting to know about the availability of services, why does it matter whether the purpose of the law is regulation of the ethical standards of solicitors or the purpose with which we are confronted?
MS TATE: Your Honour, we are not inviting you to draw an implication in relation to laws which impair communications from lawyers to potential clients. We are not inviting your Honour to draw that implication. We are simply saying that if there is any implication to be found in Chapter III in relation to laws that impair access to the courts then that implication ought to be characterised as an implication about access to the courts and not as an implication about the protection of freedom of communications. It ought not to be seen as an extension or as a variant of the Lange principle.
KIRBY J: Why does it have to be either/or? Maybe there is the implication of freedom of communication relevant to Chapters I and II, freedom of communication relevant to Chapter III and, in relation to Chapter III, no impediments on access to the courts, no relevant impediments of this kind on access to the information that gets you into the courts. Everyone in this room, everyone at the Bar table and on the Bench knows how you get into courts but I have to say, once again, a lot of ordinary people do not. That is what this regulation strikes at. Remind me, I know there is in Western Australia a regulation that is not the same but like the old regulation, do you have such a regulation in Victoria?
MS TATE: No, your Honour. There is no restriction on the advertising by lawyers for the provision of legal services in relation to personal injuries in Victoria.
GLEESON CJ: Do you have a law in Victoria that says that only lawyers can represent people in litigation?
MS TATE: No, your Honour.
HAYNE J: Is there not a prohibition against practising as a lawyer unqualified?
MS TATE: There is a prohibition against practising as a lawyer if unqualified, but there would be various tribunals, your Honour, where parties could be represented by other persons, whether or not those people be legally qualified.
HAYNE J: Not as a paying advocate surely.
GLEESON CJ: Does a law of Victoria prohibit a person appearing as a paid advocate in the Federal Court of Australia sitting in Melbourne or in the Supreme Court of Victoria exercising federal jurisdiction unless that person is a lawyer?
MS TATE: Yes, your Honour.
GLEESON CJ: Does that law inhibit access to justice?
MS TATE: No, your Honour.
GLEESON CJ: Why not? There may be skilful advocates who, for some reason or another, do not hold a practising certificate as lawyers and whose services would be very welcome and perhaps even useful for some kinds of litigant.
MS TATE: Your Honour, we would say that that is an issue upon which reasonable minds might differ, that the legislature has chosen, no doubt with consultation with all of the interested bodies, to determine that in its wisdom there ought to be such a restriction.
GLEESON CJ: Assuming that restriction exists and is valid, why or by what process of reasoning do you conclude that it is compatible with the implication in Chapter III?
MS TATE: If there is an implication to be drawn in Chapter III, your Honour, it is not an implication which says that access to the courts must be unfettered and there ought be no hurdle of any kind or description placed in the way of anybody who seeks access to the courts. My learned friend, the Solicitor-General for South Australia, has already identified a number of restrictions which are placed upon access to the courts which are restrictions which have been regarded by the legislature as justifiable restrictions. Justice McHugh mentioned the restriction in relation to vexatious litigants in response to the submissions from the Solicitor-General for South Australia and said that that was a restriction which actually enhanced the functioning and operation of the judicial system.
Now, indeed, reasonable minds might differ as to what the nature of the permissible restrictions should be, but it is nevertheless the case, your Honour, that there may well be some restrictions, there may well be some hurdles put in the place of people who seek access to the courts which does not infringe any implication arising from Chapter III.
GLEESON CJ: What about a law that said unrepresented litigants have no right to appear in the High Court?
MS TATE: Again, your Honour, it is a question of the courts deferring to the wisdom of the legislature. If it has decided that it is necessary that certain restrictions be put in place for the proper functioning of the judicial system and of the superior courts, then save for restrictions at the outer limits – and that may well be a restriction at the outer limit – that is a matter, in our submission, which is for the legislature and not for the courts to determine.
McHUGH J: But does not your answers and the questions that were put to you all indicate that everything turns on the purpose or object of the law. In the cases that have just been put to you, the object is to facilitate the exercise of federal jurisdiction or the exercise of judicial power by ensuring that properly qualified persons appear in the court and, therefore, although there may be a restriction on the right of access to the court, it is regarded as an incidental restraint or burden and, therefore, not relevantly a burden. Those of us of my generation had to deal with this fairly regularly in relation to section 92 litigation. This sort of problem arose in those days, so that was how these laws were characterised.
KIRBY J: We have had a hint today that we might go back there. The problem I have with purpose is that it is really searching objectively for what people had in mind, whereas law normally attacks consequences. It normally addresses itself to the outcome, not to what people thought they were doing or hoped they were doing or wished they were doing but what they did, when you are talking of constitutional validity.
MS TATE: But, your Honour, I do not eschew some consideration of the purpose of the law when a court is to determine whether the implication drawn from Chapter III, if there is to be such an implication drawn, whether that implication has been infringed. It may well be that the test to determine whether the implication has been infringed must take account of the purpose for which the law was enacted.
GLEESON CJ: Well, that depends on what the implication is.
MS TATE: It does depend upon the implication, your Honour, yes, indeed. My central submission, your Honour, is simply to say that any implication to be drawn from Chapter III ought not to be drawn as some form of direct analogy or extension or variation of the Lange implication, but rather ought to be set upon its own independent foundation.
GUMMOW J: Yes, well, Lange operates on the basis that part of the political process involves “pressure” – to use a neutral term – being applied by constituents to their representative.
MS TATE: Yes, your Honour.
GUMMOW J: This Chapter III is a completely different idea.
MS TATE: Indeed, your Honour, a completely different idea.
KIRBY J: But there is that common element of communication at the threshold as to whether you have a case and how you bring it, and who will act for you and how much they will charge and what will happen if you lose and who you will have to pay, and all of those things, which we all know but which many citizens – I would warrant the great majority of citizens do not know.
MS TATE: Yes, your Honour. May it please the Court, those are our submissions.
GLEESON CJ: Thank you. Mr Applegarth.
MR APPLEGARTH: May it please the Court, we propose to briefly address the implied freedom of communication about government and political matters and then address implications from Chapter III of the Constitution. We otherwise rely upon our written submissions.
The New South Wales regulation does not impinge on freedom of communication between the electors – elected between the electors and candidates for election and between the electors themselves so that the people may exercise a free and informed choice as electors. This was the point to which your Honour Justice Gummow just adverted.
Advertising by legal practitioners has no apparent connection with the system of representative and responsible government provided for in the Constitution. In our submission, it does not assist the plaintiffs to base their argument upon Lange and to contend that the law in this case affects communications with respect to legal rights and legal proceedings because legal rights and remedies are not government or political matters.
So in summary, your Honour, on the first point, the Attorney‑General for Queensland submits that the New South Wales regulation is not a law which is apt to burden freedom of communication about government or political matters at any level of government, but if it does any burden is slight and, as we have outlined in our submissions at paragraph 14, that burden is indeed slight. May we briefly turn to the ‑ ‑ ‑
KIRBY J: Well, it is slight if you are wealthy, but it is not slight if you are in that category of people with claims between 0 and $100,000 who do not know how the system works. It is big.
MR APPLEGARTH: I am sorry, your Honour. I was not talking about its effect upon litigants. I was talking about its effect on discussion of government or political matters, and it is our submission that legal rights and remedies are not government or political matters.
KIRBY J: I just think that this is a bit of a red herring actually, and everybody is sort of so fixated on Lange that they have used the language of Lange and not stopped to think of what the concept of Lange is about.
MR APPLEGARTH: Well, your Honour invited us before lunch to proceed by way of analogy to Lange. So your Honour has raised the point about Lange. We say too that the plaintiffs in their submissions have invited an extended category of government and political matters in respect of legal rights and proceedings. We say that is not supported by authority or principle. We think that the – and we submit that the analogy is not a good one. Your Honour invites us to proceed by analogy with Lange but we say it would be quite wrong to do so.
The implication recognised in Lange about freedom of communication is anchored in the provisions of the Constitution that give rise to an implication about representative and responsible government.
KIRBY J: I will not say this again, but that is because Lange was addressed to Chapters I and II. We have here a case about Chapter III and we lawyers really have to lift our game and look at the issue in terms of the concept which is at the heart of Lange, not just at the case.
MR APPLEGARTH: We look at the concept, your Honour, and we say that the concept is one that one says what is necessary for the constitutional implication.
KIRBY J: Exactly. I think that word “necessary” is the matter that must cause one to pause. It is not just “Is it convenient?”, “Would it be good?”, “Is it useful?” It is “Is it necessary?” so that you can draw the implication.
MR APPLEGARTH: Your Honour, we will only spend one more sentence on Lange and its analogies because we have to because the plaintiffs have raised it as an analogy. We say there is no analogy because Chapter III courts and the integrity of Chapter III courts does not depend upon demands being made to them or people letting know their wishes, as are demands of communications to the political arms of government. There is no ready analogy with Chapter III courts because the integrity of those institutions does not depend on the court being open to popular demands or surveying the wishes of the people. May we move then immediately to the Chapter III point which your Honour wishes me to address.
KIRBY J: Can I just ask you is there a regulation in Queensland similar to the New South Wales regulation?
MR APPLEGARTH: I would not say it is similar. We can give your Honours a note about it and we can give your Honours the provisions. It in substance ‑ ‑ ‑
KIRBY J: Is it like the Western Australian one?
MR APPLEGARTH: It is like the Western Australian one and it is like the 2002 New South Wales regulation. In substance, although it has some constraints, it permits, for example, an advertisement to be placed in a widely circulating form of publication that identifies the lawyer, gives the lawyer’s contact details and identifies that lawyer’s area of practice. So the Whyburn-type publication could exist.
KIRBY J: As far as we know, there is nothing in Australia similar to the New South Wales regulation?
MR APPLEGARTH: We have not heard from the Northern Territory, but I am not sure. I cannot answer that question, your Honour. We can only speak for ourselves. May we turn briefly to Chapter III of the Constitution. Our submissions on the implication points are these, that Chapter III is silent about and does not imply anything about the communication of advertisements between lawyers and non‑clients. Secondly, the regulation of such advertisements is not incompatible with Chapter III.
Now, with respect to our learned friends for the plaintiffs, the implication from Chapter III for which they contend is not entirely clear even at this stage of the argument. In particular, it is not clear whether the implication is about communications or whether the implication is something else and that the argument is that the practical operation of the law impairs the integrity of Chapter III courts. We say whatever the implication be, whether it be an implication concerning communications at that secondary level or something more direct, the implication has to have its origin in the Constitution, not in preconceptions, however desirable and widely accepted that are outside it.
May we simply cite as the test for determining an implication Chief Justice Mason’s statement in Australian Capital Television (1992) 177 CLR 106 at 134, which has been subsequently adopted by members of this Court, that “any implication must be securely based” and it must be an implication not merely an:
assumption upon which the framers proceeded in drafting the Constitution.
If it is a textual implication, it has to be drawn from the terms of the Constitution. If it is a structural implication, the term must be – and this appears about point 4 on page 135:
logically or practically necessary for the preservation of the integrity of that structure.
CALLINAN J: What does “practically necessary” mean?
MR APPLEGARTH: I am sorry, your Honour?
CALLINAN J: What does “practically” add, the word “practically”? It is a much less stringent test than the one his Honour suggested in Codelfa for contracts.
MR APPLEGARTH: Yes, your Honour. May we say that so far as one is concerned with the textual implication, the text of the Constitution refers to the judicial power of the Commonwealth and to courts, and one can readily accept that ‑ ‑ ‑
CALLINAN J: And to matters.
MR APPLEGARTH: And to matters, and therein lies the heart of the matter if we are concerned with implications. The Court hears claims that are brought to it.
KIRBY J: Maybe the answer to Justice Callinan’s problem, the question is that Codelfa was dealing with implications in contractual terms which are multifarious and millions of them are made every year, whereas the Constitution is fixed, very difficult to change and, therefore, it is not quite as rigid in the drawing of implications as the history of the Constitution has shown. It may be that that is the point of distinction.
MR APPLEGARTH: We will not delay to observe about the possible meanings that can be attributed to the words “practically necessary”, that passage, but may we say this, that Chapter III says nothing about and really implies nothing about how claims and controversies are generated, whether it be by a potential litigant approaching a lawyer or a lawyer approaching a potential litigant, or perhaps a potential litigant appreciating the existence of a possible claim, without the assistance of a lawyer.
The framers of the Constitution may have made, and we today may make, certain assumptions about how controversies come to be generated, but those are assumptions and preconceptions outside of the Constitution. They may be assumptions that people had when they framed it and they may be assumptions that one has when one comes to interpret it, but those assumptions and preconceptions about the need for persons to have information about legal rights do not have the status of a constitutional implication. We submit that it is not practically necessary, to use that term, for the integrity of the constitutional structure for every unlitigated right to be litigated. A court determines claims that are brought to it, leaving the generation of those claims to others.
Now one may assume that the generation of legal claims operates through a variety of processes, including education about legal rights, legal advice, and one can assume, to adopt some remarks that Justice Hayne made this morning, that there are claims that are not brought forward because of ignorance of rights or an inability or unwillingness to pursue them.
But the fact is that today, like 50 years ago, potential legal controversies go unlitigated. To the extent that 50 years ago claims went unlitigated because of a prohibition on lawyers advertising, this does not mean that the Dixon Court and the other Chapter III courts were impaired in performing their constitutional function of ‑ ‑ ‑
KIRBY J: But those restraints were largely restraints of convention and ethics, and we are talking here about a regulation of a State of the Commonwealth which is setting its face against litigation as a bad thing.
MR APPLEGARTH: But, your Honour, whatever their purpose may have been, it still would have been the case that whatever their well‑intentioned purpose, legitimate purpose, say what you will, they had the practical effect of the very thing which your Honour has taxed us with in the last few days, the practical effect of leaving people who would depend upon advertising in ignorance of their rights.
KIRBY J: They were not a regulation of the State, of the Commonwealth, whereas that is what we have now. This is a deliberate and apparently unique attempt of one State of the Commonwealth to prohibit communication or activity that brings entitlements and how they can be enforced in federal courts to the notice of citizens.
MR APPLEGARTH: May we again give your Honour a note about the history of regulation in Queensland because we say that in that era there were prohibitions which had, we would say, probably the same practical effect as the New South Wales regulation, so it does not avail one to say they had the high‑minded purpose of ‑ ‑ ‑
KIRBY J: I understand your submission, but the answer to it is, first, they were not challenged in this Court and now they are and, secondly, they were not challenged with the benefit of a century or half a century more of constitutional elaboration and now they are.
MR APPLEGARTH: But, your Honour, we also have the benefit of the last 10 or 20 years of the difficulties that the Court can generate by identifying implications.
KIRBY J: You say they are difficulties. Others say they are liberties. Your view is rather hierarchical and patriarchal. “Don’t worry about getting to know about your rights. Just keep away. Don’t come to the courts. You are a nuisance.”
MR APPLEGARTH: Your Honour, we have not said that and we do not submit that. We will move to the next point. But suffice to say that 50 years advertising to potential clients did not occur and the text and structure of the Constitution remains unchanged and we submit that it would ‑ ‑ ‑
McHUGH J: That is debateable. The text maybe. Its meaning may have changed.
MR APPLEGARTH: We can summarise our point on the implication this way. The Constitution’s text or structure dictates that courts determine controversies brought to it. That implication does not give rise to implication at a secondary level, to use your Honour Justice Gummow’s phrase in McGinty at 291 about the need for people to be informed about their legal rights. If it is an implication about communications, it is an implication at that secondary level, it would seem to us. We say it does not give rise to ‑ ‑ ‑
KIRBY J: What was Justice Gummow’s context there? McGinty was an election case, was it not?
MR APPLEGARTH: Yes, but his Honour was referring to the constitutional freedom to discuss government and political matters.
McHUGH J: It was a second order implication.
MR APPLEGARTH: The citation is McGinty 186 CLR 140 at 291 where your Honour at about point 5 said:
The first is that, as McHugh J explains in his judgment in the present case, the process of constitutional interpretation by which this principle was derived (being an implication at a secondary level) –
That is simply the point we make. If it is an implication about communications, it is at that secondary level. It is once removed from the primary implication about representative and responsible government. We simply mention that because it seems to us that the case which we have some difficulty in identifying put against us is put forward as an implication concerning communications.
If it is not put forward on that basis, if it is put forward on a different basis, then we similarly submit that the Constitution does not give rise to an implication about the need for people to be informed about their legal rights or the proposition that unlitigated rights should be litigated in order to preserve the structure of the Constitution. One can say many things in terms of social or economic policy about the desirability of people being informed about their legal rights, but we say it does not ‑ ‑ ‑
KIRBY J: The question though is whether you can inhibit it, you see. That is the question. There are all sorts of things that would be desirable, no doubt, but the question is whether you can inhibit it by a regulation which sets out to discourage litigation of people’s claims which by hypothesis they have but do not know about or do not know how to go about prosecuting in federal courts.
MR APPLEGARTH: Your Honour, I think we have made the submissions that we wish to make about the fact that, whether it be in 1950 or today, a restraint on persons being informed about their legal rights is of a kind that threatens the structure of the Constitution and we say ‑ ‑ ‑
KIRBY J: That is surely not the test that threatens the structure. We have not put it that high. The bar is not up there. This is not the Olympics.
MR APPLEGARTH: We should say, and return to what was said ‑ ‑ ‑
KIRBY J: Necessary, necessary.
MR APPLEGARTH:
logically or practically necessary for the preservation of the integrity of that structure –
and our simple point is that the litigation of unlitigated claims is not necessary for the preservation of the judicial structure of this country.
Your Honours have observed, particularly this morning, about the issue of practical operation and we apprehend that the Court may have a difficulty in determining what the practical operation of this regulation may be due to a lack of evidence. We do not want to say anything more about that. The case seems to be put that one should infer that the law has had its purpose. There seems to be a distinct absence of evidence about that in the types of claims that it has constrained, if any, but we say that if the practical operation of the law is to impact on persons who do not know that they have a legal claim and who are not otherwise likely to ascertain it, then whatever view is taken of the law as a matter of social policy, there is no controversy for a Chapter III court to determine, as your Honour Justice ‑ ‑ ‑
KIRBY J: I do not know. Is that right, because we have three instances? One is a website, one is an advertisement in local papers and the other is an
advertisement in trade union journals and it is said that all three of those fall foul of this regulation. They are very hard cases. There is no hypothesis about them. They are good or they are bad, but it is a question of whether the regulation applies to strike them down and I did not take the New South Wales Solicitor-General to say that it did not.
MR APPLEGARTH: Your Honour, the only point we wish to make is that the hypothesis that we are here concerned with is one concerning practical operation, and if we are concerned with the practical operation of this regulation it has to be its practical operation in inhibiting the bringing forward of claims in this Court, and that practical operation must be in respect of persons who, if they did not receive the advertisement, would not bring forward a claim because they would not ascertain their legal rights by any other means.
KIRBY J: That is catch-22. We will not know them until they know that they have not had their rights.
MR APPLEGARTH: We do not see it as a chapter 22, your Honour. We see it as a ‑ ‑ ‑
KIRBY J: I say catch-22. That is outside even our Constitution.
MR APPLEGARTH: We do not see it as a catch-22. We see it as a matter of interpretation of the Constitution and if one is concerned with Chapter III, one is not concerned with unlitigated rights. One is not even concerned, as the Solicitor-General for South Australia recently put it, at the time that the jurisdiction of the court is invoked, one is concerned with when a controversy comes about, and if it be the case that persons who do not receive these advertisements would remain unaware of their legal rights and not ascertain them by any other means, then sad as that may be from some points of view in terms of social and other economic policy, the fact is that one does not have a controversy that Chapter III of this Constitution is concerned with. As your Honour Justice Hayne stated on this approach, one is concerned at a point anterior to the invocation of judicial power. Those are our submissions.
GLEESON CJ: Thank you, Mr Applegarth. Mr Basten.
MR BASTEN: Your Honours, with Mr Gageler’s consent may I have the indulgence of the Court to use two minutes of the time I did not use yesterday to respond to two matters relating to our materials. The first point concerns the material to which the Solicitor for New South Wales took your Honours at page 217 of the special case book. He sought to make the point that this document taken from the website of the Inner City Legal Centre concerned with victims’ compensation did not have the effect of promoting the use of lawyers.
The document goes over three or four pages. At the bottom of page 219 there is a heading “Legal assistance” which goes over to the next page which expressly advises people as to how and why they should seek assistance from solicitors. At page 221 at line 20 there are contacts for solicitors, including the Inner City Legal Centre itself.
The second point concerns the manner in which the Solicitors‑General for the Commonwealth and Western Australia sought to deal with our argument concerning section 92. The material which appears at 222 of the special case book deals with communications from a website which relate to federal law and constitute intercourse for the purposes of the second limb of section 92 only. They are not made in trade or commerce because a welfare rights legal centre is a “not for profit” organisation. The material seeks to supply information about legal rights and their enforcement, for example, by the mechanism of maintaining that material on a website.
A law, the purpose and effect of which is to restrict the content of that website, impairs the ability of citizens to have access to such communications. It may raise no question of discrimination against interstate communication, but it may yet engage the balancing test propounded in AMS. But if the object of the State law is to inhibit the enforcement of rights, it is inconsistent with the fundamental constitutional purpose of Chapter III. That is not a legitimate object of a State law and hence the balancing test, with respect, is not engaged at all. The law is an impermissible constraint on the second limb of section 92. If the balancing exercise were engaged as we said yesterday, the overreaching effects of this regulation, having regard to its agreed object, means that it is not in any event reasonably required to achieve that object.
GLEESON CJ: Is that your reply?
MR BASTEN: Well, I did not intend to exercise a reply so much as deal with that matter.
GLEESON CJ: I see. You have a right of reply – I am sorry ‑ ‑ ‑
MR BASTEN: Yes.
GLEESON CJ: Are you going to deal with question of the nature of the Chapter III implication?
MR BASTEN: There is a demarcation dispute in process, your Honour, which may need to be resolved.
GLEESON CJ: You can both deal with the question.
MR BASTEN: That was our resolution of it, your Honour.
GLEESON CJ: Yes. What do you say is the implication in Chapter III?
MR BASTEN: Well, we put it in different ways for different purposes, your Honour, because for the purpose of section 92 I was seeking to put the implication as one concerned with a limitation on State powers to exercise laws which would restrict the communication of information about Commonwealth laws and access to Commonwealth courts. Now, that may not be an implication which is derived strictly and without reference to section 92 from the existence of Chapter III.
GLEESON CJ: Well, does that mean that a general blanket prohibition on advertising by lawyers will defend that implication?
MR BASTEN: No, we were looking at the purpose and object of the regulation.
GLEESON CJ: That is why I am concerned. Is it a purposive implication? It is built into the implication? Is there something about the reason why this has been done?
MR BASTEN: For present purposes, your Honour, it is sufficient for us to accept that that may be so.
GLEESON CJ: That is the problem. We are coming at this perhaps from the wrong end. I know what would provide a happy solution to this case from your point of view, but we have to concern ourselves with such things as user pays in relation to court filing fees or prohibition on litigants in person appearing or even perhaps a challenge to conferring on the legal profession a monopoly of representation in courts. So we are looking for an implication founded in principle rather than an implication of a kind that happens to meet the exigencies of this case.
MR BASTEN: Yes.
GLEESON CJ: What do you say is the implication founded in the text and structure of the Constitution?
MR BASTEN: May I answer that question first by referring to what I was just saying. The purpose of it was to identify what would be a legitimate object of a State law which infringed, in the way we have suggested, the communication of information within the second limb of section 92. The implications in relation to the protection of Chapter III courts are in a different category, in a sense, because each of the matters to which your Honour has referred may depend upon the precise effect, to say nothing of the purpose, of the laws. A law with respect to vexatious litigants may be a law designed to promote access to the courts.
Other laws regulating the manner in which you get to the court, including the costs you have to pay, are laws directly related to obtaining access to the court and regulating that access in a manner which makes them accessible to all litigants. They are not laws which are either designed or have the effect in a real sense of prohibiting or preventing people finding out about either their rights to go to the courts or how they may enforce their rights by going to the courts or otherwise. Your Honour gave one other example, I am sorry, which might not ‑ ‑ ‑
GLEESON CJ: User pays.
MR BASTEN: The user pays ‑ ‑ ‑
GLEESON CJ: User pays provisions in relation to fixing court fees, which some States have employed.
MR BASTEN: Yes.
GLEESON CJ: And which in some other countries are employed.
MR BASTEN: Yes. The answer to that, your Honour, may be that – and that may be different from imposing a $10,000 cost on filing a special leave application which might have nothing or very little to do with the user pays principle.
GLEESON CJ: Quite. That is user pays as distinct from a tax.
MR BASTEN: That is so. The question really becomes then whether the imposition of any fee is permissible, and we would say it is. If one of the effects of imposing a fee on use of the courts is to prevent litigants, who would otherwise come perhaps in forma pauperis to get access to the courts, then either there may have to be an exception or there may have to be a welfare system, as in other areas of services, which assist with the payment of fees which would otherwise be involved.
GLEESON CJ: What if you substituted for the word “prevent” the word “inhibit”?
MR BASTEN: Indeed. It does not alter my argument. There comes a stage at which for some people it will be a prohibition, for others it will be an inhibition. That is the sort of reason why we have welfare provisions in relation not only to medical services but legal services. We have rules which allow waiver of fees. Now, whether the absence of such a rule or such provision might give rise to a different constitutional question is perhaps difficult to predict in advance, but the fact that one imposes a fee would not, we say, be a law or regulation which seeks to inhibit, prevent or even burden, in an inappropriate constitutional sense, the use of Chapter III courts.
HAYNE J: Let us go back then to the implication that you say is engaged here. Do you articulate that implication, otherwise than the formula you gave in connection with section 92?
MR BASTEN: The implication which I think I sought to articulate yesterday in relation to Chapter III was an implication which gave rise – I am so sorry – an implication that a law which gave rise to an inhibition on seeking access to the courts, which might include access through legal representation, would be beyond the power of a State or arguably the Commonwealth to enact.
HAYNE J: It follows, does it not, that if a Premier chooses to say, “There’s far too much litigation. The courts are costing us far too much money. No lawyer may advertise availability of that lawyer’s services for any form of litigation.”
MR BASTEN: Yes.
HAYNE J: That would breach the implication?
MR BASTEN: We would say it undoubtedly would, your Honour.
HAYNE J: In effect, is not the consequence of the argument just see the consequence, that you thereby constitutionalise the ability to advertise? That is a large conclusion.
MR BASTEN: Your Honour, the purpose of the State law was ‑ ‑ ‑
HAYNE J: I understand the purpose, but do you not constitutionalise a right in lawyers to advertise?
MR BASTEN: Not in an unqualified sense. The qualifications are these. Firstly, if the purpose of the State law is to promote ethical behaviour on the part of lawyers, then one is promoting rather than inhibiting access to the
court because one is promoting the creation of a responsible and effective legal profession.
HAYNE J: That invites close attention to the content of the expression, “ethical behaviour”. True it is advertising has been put into the category of ethics simply because it has been an ethical rule of the Bar, “Thou shalt not tout”, and it has been treated as a matter of ethical behaviour. That is simply a matter of taxonomy and it has a symmetry of circularity about it. It is ethical because we say it is ethical.
MR BASTEN: I accept and endorse the way your Honour puts it. One might also say it has a legal history to it and it has been accepted in judgments of the courts in various countries which follow our tradition. The other qualification I was seeking to put though was that the question that your Honour put to me – and it must have been in this form in order to say that it constitutionalised something – concerned the federal jurisdiction under Chapter III of the Constitution. If the truth is that the government of the day is concerned with the cost and volume of litigation in a court, then the answer we gave before remains. The government can withdraw legal rights which are enforceable in the courts if it wishes to address that system, otherwise the Constitution is vested on the premise that people with rights can enforce them in a Chapter III court. If the Court pleases.
GLEESON CJ: Thank you, Mr Basten. Yes, Mr Gageler.
MR GAGELER: Your Honours, our answer to your Honour the Chief Justice’s question is as follows. Chapter III, in particular sections 71, 73, 75, 76 and 77, requires for its effective operation that the people of the Commonwealth have the capacity, ability or freedom to ascertain their legal rights and to assert those legal rights before the courts there mentioned. The effective operation of that capacity, ability or freedom requires that they have the capacity or ability or freedom to communicate and particularly to receive such information or assistance as they may reasonably require for that to occur.
The prohibition, in our submission, is one that extends to any law of the Commonwealth or of a State that burdens the assertion of legal rights before the courts, including the correlative communication to which we have referred, and does not – and here we adopt the formulation of Justice Deane in a section 92 context adopted by three members of this Court in AMS v AIF – go beyond what is necessary or appropriate and adapted for the preservation of an ordered society or the protection or vindication of legitimate claims of individuals in an ordered society. Now, your Honours, there may be different ways of formulating the same principle. The principle may be criticised in its verbal statement or by reference to fuzziness at the edges but the ‑ ‑ ‑
GLEESON CJ: Is it the qualification that picks up and admits of a blanket prohibition on advertising by way of ethical regulation?
MR GAGELER: Can I deal with that this way. It is by reference to the qualification that a blanket prohibition on advertising must be ascertained. In our submission, a blanket prohibition on lawyers advertising is one which burdens the freedom to which I have referred. At least prima facie one would need to assess whether the blanket prohibition on advertising could now be said to be appropriate and adapted for the preservation of an ordered society or for the protection or vindication of legitimate claims of individuals in an ordered society by reference to the contemporaneous operation of the Constitution.
It may well be, your Honour, that what was accepted, indeed never argued in the 40 or so years in which such a prohibition existed in Australia, if challenged contemporaneously, would admit of the answer that that prohibition is invalid.
GLEESON CJ: And is it also the qualification that picks up conferring a monopoly of a right of advocacy for reward upon members of the legal profession?
MR GAGELER: Yes. Your Honour, there is an analogy in the transport cases and there is nothing wrong with requiring metaphorically a licence to drive a passenger vehicle in federal jurisdiction. One would have to look at the particular licensing regime, and it may well be that the particular licensing regime had the practical effect of impeding access to justice.
McHUGH J: Total prohibition subject to an arbitrary discretion to relax would not be compatible with ‑ ‑ ‑
MR GAGELER: Yes, even if the arbitrary discretion were that of a judicial officer perhaps but, yes, that is the point. Your Honours, in relation to the qualification, one is in the realm where necessarily one is striving for a verbal formula and no single verbal formula will necessarily capture the point, but what is involved is a manipulation of really three concepts. One is the end to be achieved by the law, another is the means by which the law seeks to achieve that end, and the third is the fit between the means and the end.
GUMMOW J: In this last stage you are mentioning, is that where purpose comes in?
MR GAGELER: Yes, very much.
GUMMOW J: So, in other words, the blanket prohibition has then to undergo this examination.
MR GAGELER: Absolutely, yes, blanket prohibition.
GUMMOW J: And the examination might in fact confirm that it is out of court or it might say it is okay.
MR GAGELER: Yes, but one would need to look very carefully at it and one would need to look, amongst other things, at what the Americans call “overbreadth”. Does the scope of the prohibition extend beyond that which is tailored to achieve at the end?
GUMMOW J: Yes, this may look like an overbreadth case, this regulation here.
MR GAGELER: Yes. We say we do not actually get to that because here you look first to the end and you do not get past that but if you did, hypothetically, then, yes, you have overbreadth. You have the good and the bad being swept up together in terms of meritorious litigation and you have a prohibition that inhibits far more than the core area of personal injury litigation resulting in damages which might ultimately impact upon insurance premiums. Your Honours, by way, more strictly of reply, perhaps, the State, as we understand it, accepts that there is a zone of constitutional protection and as we understand it does not dispute that it has an operation something like the way that I have articulated it.
GUMMOW J: Yes. It seemed to me it may be a distinction without a difference, I do not know, but in this case you are really talking about a State law that cannot touch Chapter III because it is repugnant to it. It is not a 109 situation.
MR GAGELER: That is where I started.
GUMMOW J: In the Commonwealth sphere we would be talking about a restraint on 51(xxxix) by the opening words of 51, would we not?
MR GAGELER: Yes, your Honour, subject to this Constitution.
GUMMOW J: Yes.
MR GAGELER: That is right. Your Honour, we have mentioned some relevant cases in footnote 29 of our submissions in reply concerning the inability of State laws, in particular, to stultify the exercise of federal jurisdiction. I think your Honour Justice Gummow mentioned one of those yesterday.
GUMMOW J: John Robertson.
MR GAGELER: Yes, but there is quite a recent statement of three members of the Court, your Honour the Chief Justice, Justices Gaudron and your Honour Justice Gummow in Edensor particularly at paragraph [68]. I will not read it to your Honours.
GLEESON CJ: Coming back to the first part of your proposition, that raises the question that always excites the Solicitors‑General. Does it constitutionalise legal professional privilege?
MR GAGELER: Not necessarily.
GLEESON CJ: You started off with the principle that Chapter III requires for its effective operation citizens of the Commonwealth have the capacity and freedom to ascertain and assert their legal rights.
MR GAGELER: Yes. Your Honour, let me just go back a step: I do not say that it automatically constitutionalises the role ‑ ‑ ‑
McHUGH J: Do not fall into the Theophanous trap. These implications strike down laws that are inconsistent with the implication. They do not create rights themselves. What they do is strike at laws.
MR GAGELER: Yes.
GUMMOW J: There is a bit of mischief in the word “constitutionalise”.
MR GAGELER: Am I saved from answering the Chief Justice’s question?
GLEESON CJ: No. What you have to address is whether or not the effect of your implication is to prevent the States’ legislatures from making laws with respect to abrogating or restricting legal professional privilege.
MR GAGELER: The effect of my implication is to require such laws to be assessed by reference to what your Honour correctly described as the qualification to the principle.
GLEESON CJ: Because in the past in many cases this Court has treated it as a matter of construction of legislation, and strict construction of legislation, and said we require clear expressions of intention. But do you get to the result that no matter how clear the expression of intention might be, a State legislature cannot impair legal professional privilege?
MR GAGELER: No, not even on the strictest application of my test because it is a matter of looking at the means, the ends and the degree of impairment. Again, a blanket abrogation of legal professional privilege ‑ ‑ ‑
GUMMOW J: But they could not do it in federal jurisdiction anyway. That is what John Robertson would tell you.
MR GAGELER: Yes, your Honour. You have to get section 79 to pick it up.
GUMMOW J: You would have to get section 79. It would be a question whether section 79 could pick up such a law, would it not?
MR GAGELER: Yes, that is right, and our answer would be that it would depend on the law. It would depend on the detailed operation of the law and it is most unlikely that a blanket abrogation of legal professional privilege would survive.
Your Honours, going again more strictly to matters of reply dealing with the State of New South Wales. The central point is here one has a law that operates prior to the zone of constitutional protection. It operates at a point before a lawyer/client relationship is formed.
GUMMOW J: This has a section 92 resonance to it too from the old days.
MR GAGELER: A very dated section 92 resonance, a criterion of legal operation resonance.
GUMMOW J: It has a margarine resonance to it, the manufacture of margarine. Remember all that?
MR GAGELER: Yes, that is right. If you manufacture you cannot be in trade or commerce. Such a priori distinctions, in our submission, put form over substance and ignore the practical operation of the law. The Commonwealth, as we understand it, attempting to focus on the substance says here you have a law that does not really erect a barrier to litigation at all and, in particular, it still leaves an individual with a choice to litigate or not litigate in federal jurisdiction.
Your Honours, if it does not erect a barrier to litigation then it is a law that fails to achieve its avowed purpose. It is, to use the Latin, I hope correctly, a fulmen brutum. So far as leaving choice to the individual, in our submission, it is the most formal of choices and the submission rings of a view that was strongly rejected in the analogous situation in Lange 189 CLR 561 where the Court unanimously said in relation to sections 7 and 24 that:
If the freedom to receive and disseminate information were confined to election periods, the electors would be deprived of the greater part of the information necessary to make an effective choice –
In our submission, the choice which the Commonwealth Solicitor‑General quite rightly identified in relation to the individual invoking the jurisdiction for which Chapter III provides is an informed choice or an effective choice.
Your Honour the Chief Justice raised, I think in a question to the Commonwealth Solicitor‑General, the possible analogy of a law preventing the advertising of pathology services. In our submission, the fundamental distinction between such a law and the present is that such a law would have no, or at least at slightest and most tangential, effect on the ascertainment or assertion of rights in federal jurisdiction and pathology itself has not got a chapter.
Your Honours, so far as history is concerned, I have addressed that I think very much already. In paragraphs 10 to 14 of our submissions in reply, we address the history of limitations on lawyers advertising in a way that draws substantially from the article by Mr Attanasio which we referred to in footnote 38.
What one sees from the history and broad overview is that the specific legislative prescription or proscription of lawyers advertising is one of comparatively recent origin and, two, was comparatively short-lived. It came in in the 1940s but went out in the 1980s, and while it existed it was portrayed, or at least sought to be justified, as a matter of ethics or etiquette and never, so far as we have seen, as a means of restricting access by persons to lawyers or in turn restricting access to the courts.
GLEESON CJ: Do you mean by that piece of history that you are referring to legislation as distinct from professional self-regulation?
MR GAGELER: Yes.
GLEESON CJ: If you look at the first edition of Cordery on Solicitors, you are not likely to find a large commendation of solicitation for business.
MR GAGELER: No, there were certain things that gentlemen did not do.
GLEESON CJ: Or certain things that professional people did not do.
MR GAGELER: Yes, and all expressed – and I am aware of that edition.
GLEESON CJ: What would have been new in the middle of the 20th century was not some disapproval of a lawyer advertising; what would be new would be legislation dealing with something that previously had been left to their self-regulation.
MR GAGELER: Yes, which had a ring of the medieval guild to it as well, the self-regulation that existed during that time. If your Honours would permit me to say one or two things on section 92 by way of reply, I will take no more than five minutes. Your Honours, section 92 is raised on the facts in two discrete ways. There is the Maurice Blackburn Cashman letter to group members which was sought to be sent from Sydney to some recipients in other States. There is also the material displayed on the Maurice Blackburn Cashman website. As we understand it, it is accepted by the parties and all of the interveners that the conduct in question, that is, those communications, fall within the constitutional conception of interstate intercourse.
Now, it is put against us, and we do not deny, that those communications also bear the character of trade or commerce, so the question is raised, what is the relationship between the trade or commerce then, and the intercourse then of section 92? That has been addressed squarely as we see it in one case post‑Cole v Whitfield, that is, Nationwide News, and two views emerge. One is the view that we see as having been taken by Justice Deane and Justice Toohey in Nationwide News 177 CLR 1 at pages 83 to 84, and that is to treat the two limbs of section 92 as discrete alternatives and to determine which limb applies by characterising the law. You do not characterise the conduct, you characterise the law, and the law in ‑ ‑ ‑
GUMMOW J: By what criterion?
MR GAGELER: Well, does the law itself prohibit just a communication irrespective of the commercial character of the communication, or is it addressed to something that is inherently commercial? This is one alternative, it is not our preferred alternative, but if that alternative were to be applied here, then the law in question, regulation 139, adopting the definition of “advertisement” in regulation 138 is one that is about communication, in our submission, about intercourse irrespective of the commercial element of that intercourse.
GLEESON CJ: The Court in Cole v Whitfield as quoted here said the notions of absolutely free trade and commerce and absolutely free intercourse are quite distinct. Is that accurate?
MR GAGELER: The notions may be ‑ ‑ ‑
GLEESON CJ: But the Court said the notions are quite distinct. That is in a passage quoted on page 82.
MR GAGELER: Who am I to question that, your Honour? They can be treated as quite distinct in concept but it can be recognised that in application they will overlap. We are prepared to start from that basis.
The other approach that emerges in the judgment of Justice Brennan, particularly at page 59 of Nationwide News, picked up also, as we read it, by Justice Dawson in Australian Capital Television 177 CLR 106 at pages 191 to 192, is to recognise that the two limbs of section 92 can apply cumulatively to the same conduct. That is, you can recognise that you can have one conduct which is both trade and commerce and intercourse and it must pass muster under each limb of section 92. It is that view of section 92 which, in our submission, ought be adopted.
As we see it, that view of section 92 was at least implicitly adopted by all members of the Court, with the possible exception of Justice Toohey, in Cunliffe 182 CLR – I will give your Honours only the references: Chief Justice Mason, pages 307 to 308; Justice Deane, pages 346 to 347; Justice Brennan, page 333; and your Honour Justice McHugh at pages 395 to 397. It is important to recognise in Cunliffe that when you look at the facts in the case stated to the Court there, what you were concerned with was Mr Cunliffe, who was a lawyer whose business had been until the provisions of the Migration Act in that case came into force, his business had involved interstate communications for a fee.
Once one then gets into the intercourse limb of section 92, then one is concerned with essentially the same notion of freedom as that I sought to articulate before, that is, by reference to the language of Justice Deane picked up in the AMS case.
GUMMOW J: What do you say about Pidoto and Concrete Pipes?
MR GAGELER: The severance?
GUMMOW J: Yes.
MR GAGELER: Sir Maurice Byers once told me never to put a severance argument, your Honours.
GUMMOW J: He was not always like that.
MR GAGELER: He said never make it easy. But in this case, in our submission, it is impossible to sever the regulation.
GUMMOW J: Why could you not just write “in federal jurisdiction” then?
MR GAGELER: Whereabouts would your Honour do it? I do not ask that facetiously.
GUMMOW J: I know.
MR GAGELER: I ask it because I think it illustrates the difficulty.
GUMMOW J: You may be right.
MR GAGELER: The difficulty is that the ‑ ‑ ‑
GUMMOW J: After “legal services”, I suppose in the third last line, “to provide legal services in federal jurisdiction”.
MR GAGELER: Well, you would have a different regulation but you would have a regulation that still would have an effect in practical terms of impeding communications which may well lead to the assertion of rights in federal jurisdiction, that is, you would have a prohibition against an advertisement that involved the communication of information that promoted the availability or use of a barrister or solicitor to provide services in federal jurisdiction. That was one effect.
GUMMOW J: The Judiciary Act talks about being entitled to practice in federal courts.
MR GAGELER: Yes, I had not made the connection with the ‑ ‑ ‑
GUMMOW J: That is what you have to have under 55C and those sections.
MR GAGELER: Yes, I am not addressing the section 109 argument, but my problem is that even a law in that modified form which involves not reading down but reading in really would have a practical impediment on the giving of legal assistance in relation to matters in federal jurisdiction because you cannot know.
GLEESON CJ: I was going to say, is there not a fundamental problem and that is the offence is complete – the offence created by the regulation is complete when you publish the advertisement even before it is answered and even before you have the opportunity to advise the client whether the claim is in the Federal Court or the State.
MR GAGELER: Absolutely, yes. So we do not see severance as an answer to the fundamental practical operation of the law, your Honours. Can I just mention two very practical matters. One is your Honour Justice Gummow has given leave to file a further amended statement of claim and an amended special case that raises additional issues under section 109 of the Constitution, that there is no question as to whether Cole v Whitfield was correctly decided. It will be necessary though to issue new 78B notices and we would seek a direction from the Court as to a timetable for written submissions just on the section 109 issue.
GLEESON CJ: You would want a response to the 78B notices presumably before the time for filing written submissions.
MR GAGELER: Either that or that the submissions of any interveners simply be accommodated in writing.
GLEESON CJ: Almost all the recipients of the 78B notices are represented here, are they not?
MR GAGELER: It is only the Territories who would have no direct interest in a section 109 point and Tasmania, and we have not been able to ascertain Tasmania’s attitude.
GLEESON CJ: Why do we not proceed on the basis that the 78B notices will be issued within seven days and that within 14 days you and Mr Basten have an opportunity to put in further written submissions on the section 109 argument and within 14 days after that your opponents and the interveners have an opportunity to put in their written submissions in response to yours? Is that satisfactory?
MR GAGELER: Yes, thank you. A reply, your Honour?
GLEESON CJ: You will have a further seven days to reply.
MR GAGELER: Thank you. The only other thing is I promised yesterday to provide the Court with copies of the Competition Principles Agreement which I now do. The relevant provisions of the Trade Practices Act which establish the National Competition Council are found in Part IIA of that Act.
GLEESON CJ: Does the Competition Principles Agreement involve some kind of financial sanction for failure on the part of the States to observe or apply the competition principles?
MR GAGELER: A potential financial sanction. The relevant principle is principle No 5 at page 19 of the bundle.
GUMMOW J: Legislative review.
MR GAGELER: That is provided, of course, simply to give context to some of the material contained in the special case.
GUMMOW J: Where is the potential sanction?
McHUGH J: It is the Federal Treasurer who imposes it.
MR GAGELER: Yes, it is. I have not traced it through, to be honest. It is in the last of the agreements, I think, the “Agreement to Implement the National Competition Policy”, which is pages 36 and following.
McHUGH J: It might be an exercise in judicial power by the Treasurer.
MR GAGELER: If the Court pleases.
GLEESON CJ: Thank you, Mr Gageler. We will reserve our decision in this matter and we will adjourn until 10.00 am tomorrow morning.
AT 3.51 PM THE MATTER WAS ADJOURNED
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