APLA Ltd & Ors v Legal Services Commissioner NSW & Anor
[2004] HCATrans 373
[2004] HCATrans 373
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 TUESDAY, 5 OCTOBER 2004, AT 10.15 AM
Copyright in the High Court of Australia
__________________
MR S.J. GAGELER, SC: If the Court pleases, I appear for the plaintiffs with MR J.K. KIRK and MR P.K. CASHMAN. (instructed by Maurice Blackburn Cashman)
MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR M.J. LEEMING, for the second defendant. (instructed by Crown Solicitor (New South Wales))
MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia: If the Court pleases, I appear with my learned friends, MR R.G. McHUGH and MR B.D. O’DONNELL, for the Attorney‑General of the Commonwealth intervening as of right. (instructed by Australian Government Solicitor)
MR R.J. MEADOWS, QC, Solicitor‑General for the State of Western Australia: May it please the Court, I appear with my learned friend, MR S.J. WRIGHT, on behalf of the Attorney‑General for Western Australia intervening. (instructed by Crown Solicitor (Western Australia))
MR C.J. KOURAKIS, QC, Solicitor‑General for the State of South Australia: If the Court pleases, I appear with my learned friend, MS J.C. COX, for the Attorney‑General for South Australia intervening. (instructed by Crown Solicitor (South Australia))
MS P.M. TATE, SC, Solicitor‑General for the State of Victoria: May it please the Court, I appear with my learned friend, MR S.G.E. McLEISH, for the Attorney‑General for Victoria intervening. (instructed by Victorian Government Solicitor)
MR P.D.T. APPLEGARTH, SC: If it please the Court, I appear with my learned friend, MR G.R. COOPER, for the Attorney‑General of Queensland intervening. (instructed by Crown Law Queensland)
MR J. BASTEN, QC: If the Court pleases, I appear with MR G.J. WILLIAMS and MS R.A. PEPPER for the parties seeking leave to be heard as amicus. (instructed by Public Interest Advocacy Centre)
GLEESON CJ: Do you want to add anything to the written submissions you have made in support of that application?
MR BASTEN: Only if the Court would wish to hear me in response to the State’s written submissions. The main argument, as we understand it, put by the State against our being heard is that we are not affected by the regulation. Whether or not that is so is one of the construction issues which we wish to address.
GLEESON CJ: I thought the main argument they put was based on the test that was stated by Sir Gerard Brennan.
MR BASTEN: In Levy?
GLEESON CJ: Yes.
MR BASTEN: I am happy to address that, your Honour, if that is the appropriate issue. In relation to that, the test has two limbs. If one is seeking to be heard as an intervener, arguably one must establish an interest. If one is seeking to be heard as amicus, the test, as we would understand it, is simply that we have something to offer which other parties do not. We say that we do have interests in a strict sense and that we would be affected by the outcome but we do not seek to be heard as interveners. We do not seek to be joined as interveners in the proceedings. We merely seek to be heard as amici. We say we satisfy the test. The particular issues which we seek to address which other parties, certainly in their written submissions, do not address are the construction issues.
In part that is a matter of importance because, if our construction of the regulation is correct, then we have gone a long way to establishing the second limb of our argument, which is that in terms of the second limb of section 92, there is a significant overreaching of the legitimate purposes of
the government of New South Wales involved in the regulation. Those are the points that we wish to address, may it please the Court.
GLEESON CJ: Thank you, Mr Basten. Mr Solicitor for New South Wales, do you have anything further to say?
MR SEXTON: We do not want to add to what we have put in writing, your Honour.
GLEESON CJ: All right. We will adjourn for a short time to consider the course we will take in relation to your application, Mr Basten.
AT 10.19 AM SHORT ADJOURNMENT
UPON RESUMING AT 10.21 AM:
GLEESON CJ: Yes, you have that leave, Mr Basten. Yes, Mr Gageler.
MR GAGELER: Your Honours, we deal at the outset ‑ ‑ ‑
GLEESON CJ: Perhaps I should interrupt you to say that there is a note from the Deputy Registrar to say that she has been informed by the solicitor for the first defendant that the first defendant submits to the order of the Court, save as to costs. Yes, Mr Gageler.
MR GAGELER: Your Honours, we deal at the outset with the Act, the regulation and its purported justification. We seek to emphasise at the outset, before turning to the detail, two features of the prohibition imposed by the regulation which, in our submission, are critical to an assessment of its constitutional validity. The first is that in its direct legal operation it is a prohibition against the communication of information by a legal practitioner to another person, a criterion of legal operation being the content or subject matter of the information sought to be conveyed.
The second is that the avowed purpose or object and the intended practical operation of the prohibition is to inhibit that other person, that is the would‑be recipient of the information, from receiving legal advice and from going on to assert legal rights. A central submission, to which we will come, is that in its legal operation, but even more fundamentally in its practical operation, the prohibition here is one that burdens and burdens to an impermissible extent, a constitutional freedom of communication which, if it is not already within the terms of Lange, is closely analogous to the constitutional freedom of communication recognised in Lange.
KIRBY J: Is the freedom of communication for which you argue solely linked to Chapter I?
MR GAGELER: No.
KIRBY J: So you link it also to Chapter III.
MR GAGELER: Yes, and I do not forget Chapter II, your Honour, which establishes an Executive under law. Your Honours, the Act is the Legal Profession Act 1987. Your Honours ought have it, I hope, in Reprint No 9 as at 7 February 2004.
Section 3, commencing at page 2, contains a number of relevant definitions; centrally, the word “barrister”, the word “solicitor”, both of which definitions need to be read with the definition of “legal practitioner” and “interstate legal practitioner”, the definition of “interstate legal practitioner” taking one to section 48N, which appears at page 68 of the print. Your Honours will see in section 48N that an interstate legal practitioner is a person:
(a) who has been admitted to legal practice in another State or a Territory, and
(b) who holds an interstate practising certificate issued or given by a regulatory authority in that State or Territory, and
(c) whose sole or principal place of legal practice is that other State or Territory.
Within the definitions in section 3 there is also a reference to “incorporated legal practice”, which takes one to Division 2A of the Part 3, the relevant provisions appearing at page 45 of the print. Your Honours might note that under section 47C(1):
An incorporated legal practice is a corporation that provides legal services.
Under 47E(1):
An incorporated legal practice is required to have at least one solicitor director.
Then relevantly, for present purposes, under section 47I at page 49:
(1) Any restriction imposed by or under this Act in connection with advertising by solicitors applies to advertising by an incorporated legal practice with respect to the provision of its legal services.
(2) Any such advertisement is, for the purposes of disciplinary proceedings under this Act, taken to have been authorised by the solicitor directors of the practice.
Centrally relevant, for present purposes, is then section 38J, which your Honours find at page 30. It provides in subsection (1) that:
A barrister or solicitor may advertise in any way the barrister or solicitor thinks fit –
that was a provision, up to that comma, inserted in that form in 1993. It then provides –
subject to any regulations under section 38JA.
GUMMOW J: When was that last limb?
MR GAGELER: That was an amendment that was introduced by Act No 98 of 2003, which came into effect on 19 December 2003.
KIRBY J: There is no argument that I have seen that the regulations must be consistent with being able to advertise as you see fit.
MR GAGELER: We do not take any point of statutory construction or statutory ultra vires in that respect.
KIRBY J: It does seem as if the Parliament of New South Wales has, as it were, lurched in a completely different direction. Originally, there were the traditional limitations, then there was “as you see fit”, then there was the power by regulation to, in effect, go back to the old rule or worse.
MR GAGELER: It has, in effect, gone back to something much worse than the old rule and we would accept your Honour’s characterisation of it being a lurching. I will perhaps deal with that more fully in due course. Subsection (2) then provides a qualification:
However, an advertisement must not be of a kind that is or that might reasonably be regarded as:
(a) false, misleading or deceptive, or
(b) in contravention of the Trade Practices Act 1974 of the Commonwealth, the Fair Trading Act 1987 or any similar legislation.
One then goes to section 38JA which as I said was introduced by Act No 98 of 2003. Subsections (1) through to (3) came into effect on 19 December 2003. Subsections (4) to (7) came into effect on 1 September 2004. Your Honours will see that subsection (1) provides that the regulations may make provision ‑ ‑ ‑
GUMMOW J: We do not have (4) to (7) in this print.
MR GAGELER: Your Honours do not.
GUMMOW J: It is Reprint No 9 that we have.
MR GAGELER: Yes, your Honours may actually have (4) to (7) at the end of the Act.
GUMMOW J: Yes, you may be right.
HEYDON J: Page 334?
MR GAGELER: Thank you, your Honour, I knew they were there. Yes, nothing turns on those subsections for our purpose. Subsection (1) provides that:
The regulations may make provision for or with respect to regulating or prohibiting conduct by any person that relates to the marketing of legal services, including (without limitation) regulating or prohibiting any of the –
things enumerated in paragraphs (a) through to (d). The most relevant appears to be paragraph (d) which refers to:
advertising by any person of services connected with personal injury.
That needs to be read with the definition of “personal injury” which is in subsection (13) in terms that one would expect.
GUMMOW J: It is not just being run down by a motor car.
MR GAGELER: No.
GUMMOW J: It includes being bashed by a spouse.
MR GAGELER: Yes, and, indeed, suffering some impairment that leads to making a claim under the Comcare legislation or the superannuation provisions of Commonwealth or other State legislation. Subsection (2) provides that:
The regulations under this section may create an offence –
and under subsection (9)(b) contravention of a regulation under the section is automatically professional misconduct.
Section 38JA assumes a regulation‑making power elsewhere in the Act. The regulation‑making power is that conferred by section 216. That is at page 258. Subsection (1) is a general regulation‑making power in familiar terms allowing regulations required or permitted by the Act. Your Honours will note subsection (2) provides that:
Before recommending the making of a regulation, the Attorney General shall, unless the circumstances are exceptional, give –
amongst others, a body called the “Advisory Council” an opportunity to express its views. The Advisory Council is a body constituted under section 58 of the Act at page 108 with the functions referred to in section 59 of the Act and it is basically the statutory body set up to advise the Attorney-General on the regulation of the legal profession. The views of the Advisory Council on the regulation in question are not entirely irrelevant to the issues before this Court in that they reflect the New South Wales Government’s own contemporaneous expert advice on the utility and efficacy of the regulation. Your Honour will see those views communicated pursuant to section 216(2) at page 450 of the special case book. That is in volume 2.
KIRBY J: Mr Gageler, I am sorry, I will put it out of my mind when you answer this question. I am still a little troubled by the thought that the only thing Parliament has said is that lawyers can advertise as they think fit and then it has added a regulation power to, as it were, qualify or modify that. I am still troubled about the thought that the qualification or modification can be, as it were, contrary to the policy which is endorsed by Parliament in the principle, the overriding principle, that they can advertise as they think fit. One can imagine a regulation power modifying or qualifying that in the means or the manner in which such a principle is carried into effect, but is there something in the statute that, as it were, condones a regulation which, in effect, completely strikes at the heart of the principle of freedom of advertising, which was such an innovative idea?
MR GAGELER: Your Honour, having looked at the statutory history and having a view to ‑ ‑ ‑
KIRBY J: You see, one thing is done by Parliament, another is done by the Executive Government, and our duty is to the Parliament unless the Executive is within power given by Parliament.
MR GAGELER: The short answer is, if there is a point, it is not one we seek to take. Can I say this further, your Honour, by way of explanation. One is, we do not think there is such a point, given the legislative history. Section 38J was amended and section 38JA was inserted after the regulation in question was made here. There is no doubt that the Parliament of New South Wales knew exactly what it was doing in authorising regulations which not only can regulate advertising but prohibit specific sorts of advertising. Secondly, and in any event, to have a narrow statutory ultra vires victory is not what my clients seek in this case.
CALLINAN J: Mr Gageler, I need to know for myself what the status of this material is. I know it is annexed by agreement. Some of it is factual and some of it is really advocacy and a lot of it would not be extrinsic material within the Acts Interpretation Act, for example. I just do not know what we do with it. We have a great mass of material – argumentative, some of it, some of it factual.
MR GAGELER: Well, in terms of knowing what to do with it, I hope I will guide your Honour in that respect. In terms of its status, it is material put before the Court in a special case. It is therefore available to the Court to draw such inferences as to it seems appropriate under the Rules.
CALLINAN J: I suppose, at the very lowest, it is factual – agreed facts.
MR GAGELER: Yes.
CALLINAN J: At the very lowest.
MR GAGELER: Yes, but this is not a case stated, so your Honour can go beyond the material. You treat it as evidentiary material rather than as ‑ ‑ ‑
CALLINAN J: It is part of the case stated, is it not?
MR GAGELER: Yes, it is part of the special case.
CALLINAN J: And some of it is argumentative with the argument unresolved.
MR GAGELER: Yes.
GUMMOW J: I did not state a case.
CALLINAN J: The parties concurred, as they say, in stating a case.
MR GAGELER: Yes.
CALLINAN J: What is the status of that?
MR GAGELER: What is the status of the material? It is evidentiary material. It is no higher than that. Your Honours may, and my submission is will, find some of it of some utility in addressing the Lange questions, but just how I will come to in due course.
I certainly will not be taking your Honours through very much of the detail of this material. Page 450, line 29:
The Council understands that the policy imperatives underlying the proposed legislative changes may well be pressing, and it supports efforts to reduce unnecessary and frivolous litigation. It strongly and unanimously considers, however, that the Regulation as now framed is overly restrictive and may well have unintended consequences that would be detrimental to the profession and the community. The Council believes that it would be preferable to focus on improving the checks and balances already in place in the system, rather than making the proposed Regulation.
KIRBY J: What page was that, I am sorry?
MR GAGELER: Page 450, volume 2. Two paragraphs further on:
The consequence of the Regulation as currently framed would be to place unnecessary and unwarranted limitation on the consumers’ access to information.
The regulation being commented on was the amending regulation ‑ ‑ ‑
HAYNE J: Is that commentary at 450 to be understood against the background provided by the discussion of national competition policy reflected elsewhere in the special case?
MR GAGELER: Yes, and I will come to some of that, your Honour.
HAYNE J: The premise for the original legislation being that ‑ ‑ ‑
MR GAGELER: The 2002 regulation, to which I will come as well.
HAYNE J: Yes.
MR GAGELER: Your Honour is right. But this is focused specifically on the 2003 regulation, with which we are concerned, that is ‑ ‑ ‑
HAYNE J: Yes, but the reference to “consumers’ access to information” takes its colour, at least, in some respects, from concepts deployed in connection with national competition policy.
MR GAGELER: That is not the bailiwick of this body, but the words are there.
HAYNE J: Good luck describing the bailiwick of this body, Mr Gageler.
MR GAGELER: The 2003 regulation substituted Part 14 of the Legal Profession Regulation 2002 (NSW) and came into effect on 23 May 2003. That, your Honours will note, was before the current version of section 38J and section 38JA of the Act were inserted. We take no point about that. Part 14 your Honours have, in its current form, annexed to our written submissions, but perhaps more conveniently your Honours have been provided with a bundle of materials by the State, called “Second Defendant’s Bundle of Materials” and the amending regulation appears at tab N, page 86 of that bundle. The operative provision is regulation 139 and it provides:
(1) A barrister or solicitor must not publish or cause or permit to be published an advertisement that includes any reference to or depiction of any of the following:
(a) personal injury,
(b) any circumstance in which personal injury might occur, or any activity, event or circumstance that suggests or could suggest the possibility of personal injury, or any connection to or association with personal injury or a cause of personal injury,
(c) a personal injury legal service (that is, any legal service that relates to recovery of money, or any entitlement to recover money, in respect of personal injury).
that is an offence, as your Honours see, carrying a penalty –
(2) A contravention of this clause by a barrister or solicitor is declared to be professional misconduct.
Regulation 138 contains a number of relevant definitions:
advertisement means any communication of information . . . that advertises or otherwise promotes the availability or use of a barrister or solicitor to provide legal services, whether or not that is its purpose or only purpose and whether or not that is its only effect.
So it is sufficient to fall within the definition of “advertisement” that an effect of a communication is promotion of the availability of a barrister or solicitor to provide legal services. That need not be its purpose and that need not be its only effect. The terms upon which the services might be provided, that is whether they are for reward or otherwise, are simply irrelevant to the definition.
There is a definition of “publish” which is extensive. It means most relevantly for the facts raised before the Court:
(a) publish in a newspaper . . .
(d) display on an Internet website . . .
(f) display of any document . . . gratuitously sent or gratuitously delivered to any person –
Paragraph (f), of course, covers a letter sent by ordinary post. There is in regulation 140 a very limited exemption for advertising by very limited means an accredited specialty.
KIRBY J: Is this the one that includes you can have a little advertisement in your own firm but it must not be seen from the street?
MR GAGELER: No, that is the next one; 140A has other exceptions. Your Honour has paragraph (b). It is just like cigarette advertising, your Honour, in that respect. Indeed, the scope of the exceptions in regulation 140A serve to confirm the breadth of the prohibition imposed by regulation 139. At paragraph (a) there is an exception for an advertisement:
(a) to any person who is already a client of the barrister or solicitor –
provided it goes to no other person. Paragraph (b) we have already mentioned. At paragraph (c) there is an exemption for what is done:
in accordance with any order by a court, or
(d) pursuant to a disclosure made by a barrister or solicitor under Division 2 of Part 11 of the Act –
Division 2 of Part 11 of the Act is concerned with fee or cost disclosure by legal practitioners. Paragraph (e) concerns legal aid but only if it is through an agency of the Crown. Paragraph (f) relates to legal education and (g) refers to what might be required to be published under a written law of the State.
To understand the intended operation of Part 14 and to go to the history to which your Honour Justice Hayne alluded, it is necessary to go back to early 2002 when there was introduced the regulation that your Honours find at tab L of the same materials, that is the Legal Profession Amendment (Advertising) Regulation 2002.
The explanatory note is perhaps the clearest guide to the detail of that, at page 67 of the bundle. It says:
The object of this Regulation is to restrict the manner in which barristers and solicitors advertise personal injury services.
Under the new Part 7B to be inserted in the Legal Profession Regulation 1994, a barrister or solicitor must not advertise personal injury services except by means of a statement that:
(a) states only the name and contact details of the barrister or solicitor, together with information as to any area of practice or speciality of the barrister or solicitor, and
(b) is published only by certain allowable methods such as printed publications and electronic databases and directories that are accessible on the Internet.
The public exhibition of such a statement in or on a hospital, or displaying the statement on any printed document sent to or left in or around a hospital, will not be an allowable publication method.
That is focused obviously on what is often referred to as “ambulance chasing”.
For the purposes of the new Part, a person advertises personal injury services when the person publishes (or causes to be published) a statement that may reasonably be thought to be intended or likely to encourage or induce a person to make a claim for compensation or damages under any Act or law in respect of a personal injury, or to use the services of a barrister or solicitor in connection with the making of such a claim.
KIRBY J: Now, actual ambulance chasing was – the regulation of it was upheld by the Supreme Court of the United States, was it not? A distinction was drawn between general advertising and actually ‑ ‑ ‑
MR GAGELER: Yes.
KIRBY J: I think it was expressed as pursuing or harassing people.
MR GAGELER: Yes, that is right. I will come to a couple of the American cases in due course.
KIRBY J: According to the submissions of the interveners, the States, you are stating too late in this history. You should really start with the previous regime which had inhibitions and restrictions on advertising, largely of a professional kind, I think.
MR GAGELER: Yes. That is an interesting history, and I would rather deal with it in reply but in a nutshell your Honour will note that there is no regulation to which any of the States point that goes back before 1940, I think.
KIRBY J: That was because of the conventions and ethical rules of the professions which were maintained at that time.
MR GAGELER: Yes. Well, your Honour, we will submitting to the extent that the history is relevant – and I really would rather save the detail for reply – that those traditional rules to which the interveners refer, put in their historical context, can be seen as a mid‑20th century aberration. They came in in the 40s, they went out in the 80s and early 90s.
HAYNE J: That is they were not encompassed by the ordinary test in In re a Solicitor 1912?
MR GAGELER: Yes. The pure ‑ ‑ ‑
HAYNE J: The touting was not caught within?
MR GAGELER: Your Honour, touting and advertising may or may not be the same thing.
HAYNE J: I understand that.
MR GAGELER: And the general test stated in that case was applied in an Irish case, to which we have referred in our written submissions, where in applying it the judge – paragraph 13 of our written submissions in reply – where in applying it the judge made clear that even as at 1915 it was not beyond doubt that advertising by a solicitor per se would have been seen to be an ethical breach. But, your Honour, I will deal with that in due course. We say somewhere there as well that Abraham Lincoln advertised, which is interesting, a bit of history.
Your Honours, that is the content of the 2002 regulation as introduced with effect from 1 April 2002. The provisions that it inserted as Part 7B of the then 1994 regulation were reflected pretty much word for word in Part 14 of the Legal Profession Regulation 2002, which your Honours then have as tab M, page 74 of this bundle of material.
Now, the purpose behind the April 2002 initiative is explained in a ministerial statement that your Honours find in volume 1 of the special case book at page 247. It commences with an identification of the problem of rising public liability insurance premiums. It describes that at about line 17 as “a complex national issue”. It goes on for much of the balance of that page to refer to the State of New South Wales pressing the Commonwealth Government in vain to take action in respect of that issue and it goes on at page 248, second paragraph:
to announce another sensible initiative aimed at pushing down the pressure on rising insurance costs. I mentioned earlier that one of the many factors leading to rising costs is the increase in personal injury claims and the size of compensation payouts when those claims are contested. The trend has been driven by an increasing trend towards litigation in our society. Australia is adopting a culture of blame even when the damage suffered might be minor or temporary. Elements in the legal profession have encouraged a view that someone else must always pay; that litigation is the way to resolve disputes. All it does is increase costs for insurance customers and the wider community.
So today I can announce that the Government is introducing restrictions on lawyers advertising for personal injury matters to take effect from 1 April. I have discussed this with members of the Law Society of New South Wales and they are supportive of these changes. I give them credit for that and I thank them for their sympathetic approach to the problem that this represents for the Government of New South Wales. The rules that we propose will stop lawyers advertising personal injury services on television, on radio and in hospitals. For example, patients and visitors will no longer see those offensive advertisements for lawyers in hospital lifts.
The new rules will also restrict the kinds of statements that lawyers can make about personal injury work in printed advertisements or advertisements on the Internet. The rules will prevent lawyers engaging in ambulance chasing advertising. This advertising encourages people to claim for every slip and fall, regardless of the merits of the case or their genuine need for compensation. The new rules will counteract the trend to excessive litigation which is evident in parts of our society.
KIRBY J: Is that an uncontested statement that the Law Society of New South Wales supported the regulations?
MR GAGELER: I do not know what the position of the Law Society was at that time. I am not in a position to contest it.
KIRBY J: What inference are we to draw from the absence from the table of the Law Council of Australia or the Bar Council of Australia or the local Bar Association or the Law Society? Is there any inference that should be drawn from the fact that they have not bothered to turn up?
MR GAGELER: No.
HAYNE J: Does your argument require us to consider the validity of the argument there set out?
MR GAGELER: To an extent, yes, but ‑ ‑ ‑
HAYNE J: Upon what material do we essay that task?
MR GAGELER: Your Honour, I will accept – this is a much further down the track argument, but I will accept for the purposes of my argument that the purpose of the regulation is that stated by the Premier in those paragraphs at page 248. I am, of course, partly in answer to your Honour Justice Kirby’s question, here dealing with the earlier form of the regulation in respect of which it is said that the Law Society of New South Wales were supportive. What I am seeking to show is that the 2003 amendment, 2003 regulations with which we are concerned, took the same intent but took it further.
HAYNE J: Does your argument require us to form a view about whether the argument there described is well based or ill based?
MR GAGELER: To some extent, but just precisely how I would rather leave for later. In a nutshell, your Honour – no, I am not trying to shirk it ‑ in a nutshell, I will be asking your Honours to accept that the purpose is as stated, asking your Honours to accept that the likely practical effect is as stated – that is, to curtail litigation – and I will be submitting that the legal effect is itself an infringement of the constitutional freedom. I will be saying that the object, the purpose, is one that is not permissible, and I will be saying separately and in any event that the objective could be pursued by less restrictive means. So, in those respects, my answer is yes.
The object of the 2003 amendment, as I said, was clearly enough to take the same idea but to take it further. Your Honours will see in the explanatory note to the 2003 regulation, either in volume 2 of the special case book at page 451 or in the second defendant’s bundle of materials, tab N, page 86. What is there said in the second paragraph under the heading “Explanatory note” is that:
The object of this Regulation is to broaden the current restrictions so as to prohibit a barrister or solicitor –
et cetera. It is said towards the bottom of the page, the last paragraph:
The new provisions are not intended to prevent legitimate public comment in good faith about personal injury and are not intended to interfere with the delivery in good faith of legal education to the legal profession or the ordinary use of business cards or letterheads.
GUMMOW J: What does “legitimate” mean? “Legitimate public comment”?
MR GAGELER: I do not know. It depends what you say.
KIRBY J: You mentioned earlier cigarette advertising ‑ ‑ ‑
MR GAGELER: Yes.
KIRBY J: ‑ ‑ ‑ and for some time there was a controversy as to whether that was an intrusion into people’s rights and whether cigarettes were truly harmful and so on. At that time, people might have had different views on the matter, but under our system of government we have governments and parliaments that decide such questions.
MR GAGELER: Yes, I have no ‑ ‑ ‑
KIRBY J: That is the difficulty of courts becoming, as it were, supervisors of parliamentary or executive assessments of what is in the best interests of society. As a matter of merits, one could have views on such matters.
MR GAGELER: I do not disagree with anything your Honour has said. In addition to the explanatory note, I should draw your Honour’s attention to just a couple of other explanations of the extended regulation. One of them appears in volume 2 at page 254. Again, to allude to something your Honour Justice Hayne said, quite apart from the issues – and they are quite apart from the issues that we raise before the Court – the regulation raises competition policy issues, and, as a result of this regulation, the government of New South Wales has consistently scored a fail from the National Competition Council in its annual reviews of the regulation of the legal profession.
What your Honours have at page 254 is a report of the New South Wales Government to the National Competition Council. It is March 2003, so it is contemporaneous with the introduction of the regulation in question and an explanation ‑ ‑ ‑
HAYNE J: Do we need to understand the statutory warrant or background to national competition policy or is it sufficient that we take up the inquiry at this point?
MR GAGELER: I think the answer is no, but the background is the National Competition’s principles agreement and we could easily provide your Honour with a copy of those, but the answer is no, not for the purposes of my argument.
GUMMOW J: It is an intergovernmental agreement, is it?
MR GAGELER: It is an intergovernmental agreement. There is no statute, although it is implemented in Part IIIA of the Trade Practices Act.
GUMMOW J: Yes, we looked at that in the Telstra litigation ‑ ‑ ‑
MR GAGELER: Yes.
KIRBY J: Did that follow the Hilmer Report?
MR GAGELER: Yes. For the most part it took up, amongst other things ‑ ‑ ‑
KIRBY J: By “follow” I meant follow chronologically.
MR GAGELER: Yes, it followed chronologically. It was a 1995 intergovernmental agreement.
GUMMOW J: For myself, I think we had better see it otherwise we do not know where we are, really.
MR GAGELER: We will provide your Honours with a copy. I am only going to pick out a couple of points. At page 256 there is a heading “Advertising of Personal Injury Services”:
The New South Wales restrictions on advertising personal injury services were introduced in response to the problem of reduced access to affordable public liability insurance.
The New South Wales Government is moving to strengthen these restrictions as a number of practitioners have sought to circumvent these restrictions
While the causes of this are complex (including the size of compensation claims, the pricing an investment practices of insurance companies including under‑pricing in the past, lower investment returns for insurers and rising reinsurance costs) one of the factors that led to increasing premiums appears to have been the sharp rise in the number of public liability claims . . .
At the joint sitting of the New South Wales Parliament on 18 September 2002, Trowbridge Consulting noted the disproportionate impact that claims in the $20,000 to $100,000 bracket had on the costs flowing from public liability claims. Trowbridge also noted that there had been a significant increase in public liability litigation in New South Wales when compared with other jurisdictions.
The New South Wales Government considers that one of the reasons for the growth in small claims is that advertising by some lawyers encourages people to make personal injury claims. Some of this advertising may have encouraged people to make a claim, regardless of the seriousness of their injury, their genuine need for compensation or the real merits of their claim.
Given limits to the capacity of the justice system and the growth in the number of claims, advertising restrictions may also regulate demand for litigation relative to that for the other less costly forms of settling disputes or resolving grievances. This will assist to limit the negative externalities –
that is economic speak –
arising from increasing numbers of filed claims, in particular non‑meritorious claims, which can contribute to log jams in court administration and impose efficiency costs that are ultimately borne by the wider community.
Any restrictive impact of the advertising rules in New South Wales is outweighed by the potential for a future positive impact on levels of litigiousness in the person injury area. On balance, the public interest is best served by imposing reasonable restrictions on this type of advertising.
At page 250 – I should point out that that submission I will mention later on, that submission still did not persuade the National Competition Council.
KIRBY J: Who are the National Competition Council? It is an intergovernmental body of experts, is it?
MR GAGELER: It is a statutory body set up under the Trade Practices Act. I really should give your Honours the provisions but for present purposes it is very much ‑ ‑ ‑
KIRBY J: But it is not made up of political people; it is made up of economists and other like people, is it?
MR GAGELER: Correct, who are appointed by various means. It is a national body set up under Commonwealth legislation. What it does, amongst other things, is consider compliance by each of the governments within Australia with the principles set out in the 1995 agreement, the competition principles agreement.
KIRBY J: And it is an expert body?
MR GAGELER: It is an expert body, yes.
CALLINAN J: Mr Gageler, before I can use any of this material, I need to know what its status is. What am I to do with it? It seems to me to be an expression of opinion by various people of conflicting views.
MR GAGELER: I hope not, your Honour. All that I am doing at the moment is taking your Honour to such of the material as has been included in the special case book at the request of the State of New South Wales and it is material which explains the purpose, the intended practical operation of this regulation. It is for that reason at the moment that I am taking your Honours to it.
CALLINAN J: But it is not material within the Acts Interpretation Act, is it, either New South Wales or the Commonwealth? It is extrinsic material.
MR GAGELER: It is very much extrinsic material. Your Honour is alluding to the necessity to construe the regulation. That is one part of what your Honours need to do, but your Honours need to go beyond that and to determine its constitutional validity as a matter of substance in its practical operation. In that respect this material is probative, in our submission.
CALLINAN J: You say in its practical application. Mr Carr expresses a view about it. The National Competition Council, or whatever the body is, takes a different view. How do we resolve that conflict?
MR GAGELER: Your Honours need not resolve that particular conflict for present purposes. What I am seeking to extract from the material only at the moment is the explanation for the introduction of this regulation and the explanation of its intended practical operation, that is all.
CALLINAN J: How can we go beyond what the Acts Interpretation Act says we can look at?
MR GAGELER: Because your Honour is, or will be, engaged in an exercise that goes beyond simply construing the regulation. The Acts Interpretation Act is concerned with construction, but your Honours will be asked to be concerned with the application of a constitutional prohibition which works by reference to not only the strict legal operation flaw but also to its practical operation and your Honours will have to discern to some extent what has been described in some of the cases as constitutional facts.
GLEESON CJ: This raises a real difficulty because there is probably no member of this Bench who has had any personal experience of legal practice in an environment in which advertising of the kind to which this is directed took place. You referred to a mid 20th century aberration, but we all grew up in the time of that aberration, as you describe it. If we are supposed to know what goes on and what kind of advertising legal practitioners engaged in that attracted this regulatory response, there may be a real question of evidence.
MR GAGELER: Can I say this. Neither side is asking your Honours to look into the detail of that. I am accepting at face value the explanations that are put forward by the Premier in the ministerial statement to which I have taken your Honours and in these two formal documents which are submissions to the National Competition Council. That is what the State says this regulation is about. I am accepting that that is what the State says this regulation is about.
GLEESON CJ: If you are inviting us or if anybody is contemplating inviting us to pass upon the reasonableness of regulation of this type of conduct, you might bear in mind that you are inviting us to consider the reasonableness of regulation of conduct that during our experience of legal practice was unimaginable.
MR GAGELER: I will bear that in mind.
KIRBY J: There were, of course, in those far‑off days, other ways of advertising. It was not in the newspapers or television or commercial radio, such as you hear today, but it was through the networks of trade unions and other means, plaintiffs, lawyers.
MR GAGELER: Indeed. Before the 1980s, when lawyers’ advertising was liberalised around the world, we are not aware of anybody suggesting that the justification for limiting advertising by lawyers was to prevent persons being informed of their legal rights and of bringing suits before the courts. There were other factors that were sought to justify that form of regulation, which was never a criminal offence.
CALLINAN J: Mr Gageler, I am sorry to go on about this, but you say we are going to derive some constitutional facts from all of this material.
MR GAGELER: Yes.
CALLINAN J: What are the constitutional facts that we are going to derive from this material?
MR GAGELER: Your Honours will, in approaching the two stage Lange test, need to determine first whether there is a burden, either legal or practical, on an area of constitutionally protected communication. That is question No 1. I will be asking your Honour to accept that the practical operation of this law is to impose a burden, that is, to inhibit, to impair, persons with potential legal claims from being contacted by a lawyer, from being informed of their legal rights and from pursuing those claims in court.
CALLINAN J: The practical effect will not be enough. It is legal effect that counts.
MR GAGELER: The practical effect will be enough, your Honour. That is one of my submissions. Legal effect, yes, but practical effect also. That is point No 1.
CALLINAN J: When you say “practical effect”, what you are really saying is how it may operate, is that not right? The activities which may be affected by it.
MR GAGELER: Yes, and unless it operates in that way, it will not be achieving the purpose for which it was introduced.
CALLINAN J: Well, why do we need all this material to tell us that?
MR GAGELER: Your Honour, I was going to go to two more paragraphs at page 252 and that will be the end of it, but I have not quite completed my answer.
McHUGH J: The way you just formulated your case makes me wonder, and I wondered before about this, as to why you have not got a 109 point. Persons who have rights in respect of personal injury in federal jurisdiction are arguably entitled to appear by legal representatives and have legal assistance in vindicating those claims, and arguably no State can legislate so as to impair the efficacy of the vindication of those rights. Maybe there is some flaw in what I ‑ ‑ ‑
MR GAGELER: No, your Honour is absolutely right, but the question that one then comes to is this, does that argument necessarily turn on inconsistency with Commonwealth legislation either conferring the right or establishing the courts.
McHUGH J: Well it may go beyond that. In Quick & Garran in discussing section 117 of the Constitution they state that there are various rights that arise from the nature of the Constitution, the right to petition federal authorities, and I do not think they say it expressly, but it would be covered by the principle, the right of access to federal courts, they regard it as a constitutional right.
MR GAGELER: Yes, and it is on that plane that we are seeking to put the case.
McHUGH J: Yes, but you seem to be putting it on the Constitution rather than on 109 as a fallback situation.
KIRBY J: As I understand it, your point is that there has to be a law to, as it were, enliven section 109, is that correct, and therefore, you have to have the law that clashes with the State law.
MR GAGELER: That is the scenario to which section 109 speaks, but to be absolutely frank, we have not conceived the case as a section 109 case, your Honour.
McHUGH J: But you have Comcare legislation, there are rights in – I formulated this situation in terms of federal jurisdiction.
MR GAGELER: Yes, but it is not confined ‑ ‑ ‑
McHUGH J: So any sort of case, any sort of personal injury case may turn out to be a case of federal jurisdiction. So you have those rights. You have - is it section 55A of the Judiciary Act gives barristers and solicitors a right to practice in the federal courts, a statutory right to practice in federal courts, I do not know.
MR GAGELER: Yes. Your Honour, can I take that on notice, we will think about what your Honour said. Your Honour has stolen my thunder with Quick & Garran, that was one of the principle documents to which I wanted to take the Court, but as did Quick & Garran and as did the Court in Ex Parte Benson, we seek to put this on a broader constitutional footing and we have not to date thought it necessary to go to the detail of any particular Commonwealth statute.
GUMMOW J: New South Wales concedes, does it not, in paragraph 5.14, that the regulation does not and could not apply to Part IVA proceedings under the Federal Court Act.
MR GAGELER: For the wrong reasons, but yes, it does concede that.
GUMMOW J: Why do you say for the wrong reasons?
MR GAGELER: They are wrong in two respects. One is, they say it could only apply if picked up by section 79 of the Judiciary Act. That is wrong because section 79 of the Judiciary Act has nothing to do with a general prohibition, it is concerned with what a court does.
GUMMOW J: What happens in a court, yes.
MR GAGELER: Yes, yes, so that is wrong. And then they say it would not be picked up by section 79 because to do so would be repugnant with the detailed provisions of Part IVA which regulate ‑ ‑ ‑
GUMMOW J: That seems to me a 109 argument.
MR GAGELER: Well, if it is anything it is a 109 argument but it is wrong, it is wrong because Part IVA does not seek to regulate all communications with group members by either side, by the solicitors for the applicant or, indeed, by the respondent. It has been so held in a couple of Federal Court cases. We have referred to those in our submissions in reply.
HAYNE J: But if we are to explore any aspect of the matters just agitated, it would seem to me that the questions of law that are identified in the special case would require attention. As the questions of law presently are framed, it is not evident to me that the 109 questions that have just been touched upon are raised.
MR GAGELER: There are two 109 questions touched upon, I think.
HAYNE J: Well, neither of the 109 questions just raised is touched on.
MR GAGELER: I understand that, your Honour. We will do that ‑ ‑ ‑
HAYNE J: All I am saying is give some attention to the questions if we are to go down this path, because at the moment I do not think we are heading down it.
MR GAGELER: We are not at the moment.
McHUGH J: It is natural for you to throw the weight of your argument on the effect on barristers and solicitors, but it may be more profitable to look at it from the point of view of the citizen.
MR GAGELER: I had hoped that my opening remarks had emphasised the importance of looking at it from the point of the citizen because that is what this regulation is all about. It is all about stopping the citizen from being armed with the resources to go to court to vindicate legal rights. That is the central vice of the regulation that our learned friends seek to turn into a virtue.
KIRBY J: I must admit that I read your written submissions as focusing very much on the legal profession whereas Mr Basten’s were very much anchored in the rights of individuals to have effective access to the courts.
MR GAGELER: Well, we have identified in our written submissions aspects of the legal operation of the law and aspects of its practical operation. I have endeavoured, I think, in my oral submissions to give greater emphasis to the practical operation of the law. Your Honours, I was taking your Honours to page 252. I will not read them, but there are two paragraphs under the heading “Advertising of Personal Injury Services”. If your Honours simply note the paragraphs beginning “As outlined in New South Wales’ report” and the subsequent two paragraphs.
Can I say one or two things about the facts before going to the constitutional freedom. The facts set out in the special case illustrate the scope of the prohibition in a number of ways. The most stark is that to which your Honour Justice Gummow alluded. It is that referred to in paragraphs 14 and 15 of the special case at page 239, and that is the existence of these representative proceedings in the Federal Court involving the pursuit of claims under federal law being brought on behalf of a number of group members with which the second plaintiff, that is, Maurice Blackburn Cashman, solicitors acting for the applicant and some of the group members, wish to communicate. The communication Maurice Blackburn Cashman wishes to send is the letter that appears at page 68 of the special case book. Your Honours will see that letter says at line 30:
Unless you have contacted us in the meantime, the last you probably heard about this case was when an opt out notice was sent to you in mid 2002. We understand that you decided not to opt out and therefore the case continues to affect your legal rights.
It then refers to the claim being made by the applicant and then says at line 40:
The Federal Court has indicated that the trial in this matter is likely to take place in October this year. The trial will be a trial of the case of the lead applicant, Mr Darcy. Once the outcome of Mr Darcy’s case is known, and if it is successful, group members including you will be in a position to consider whether or not to make a claim for compensation. In order to obtain compensation you will need to prove that you suffered loss or damage. It may be in your interests to obtain legal representation. You are entitled to choose your own lawyer to act on your behalf (or to choose not to have a lawyer at all). If you want this firm to act for you for purposes of assessing your individual claim for compensation you will need to enter into a fee & retainer agreement with us. If you would like to obtain a copy of our fee & retainer agreement to consider, please write to us or contact us by telephone.
GLEESON CJ: I suppose the best indication that this regulation is aimed at the rights of citizens rather than the ethical standards of lawyers is that there is nothing in the regulation that would prevent a similar letter being sent to the shareholders of a failed company inviting them to join in a class action against the directors.
MR GAGELER: Absolutely, yes. Your Honours will see over the page, page 69, it says at line 26:
Given that it is unlikely that your individual claim will be considered until at least early next year it is important that you gather together details of your potential claim as soon as you can.
Then some suggestions are made as to what should occur. Then over the page it finishes off by saying:
If you have any questions . . . please contact –
the writer. This is within the terms of the regulation an advertisement and it is prohibited. As I said, the only response from the State is that it is not picked up by section 79, and that is an inadequate response. Section 79 of the Judiciary Act has nothing to do with it and Part IVA does not require the sanction of the Federal Court before such a communication is sent.
GUMMOW J: I notice “publish” includes a broadcast by radio or television.
MR GAGELER: Yes.
KIRBY J: Justice Gummow would never listen to commercial radio, but if you do, you quite commonly hear advertisements from solicitors, or you did.
MR GAGELER: And it is not uncommon to have the resident ‑ ‑ ‑
GLEESON CJ: I think his Honour might have had in mind the Broadcasting Act.
GUMMOW J: I think so.
MR GAGELER: I am sorry, your Honour?
GUMMOW J: His Honour had in mind the broadcasting legislation. How does this permit State activity of this sort directed to a licensee as to what they may or may not broadcast?
MR GAGELER: Your Honour, that is a potential 109 question that I have not considered.
GUMMOW J: I know.
MR GAGELER: I will put that in the melting pot. The website material is also worthy of a look.
McHUGH J: The legal profession in one sense can get the benefit derivatively of what are, in effect, rights of other people, just as in the Melbourne Banking Case the legislation was directed at councils and State government bodies but the banks were the beneficiaries of it.
MR GAGELER: And just as in the Political Advertising Case it was the commercial broadcasters who received the commercial benefit of the decision. Your Honours, the website material is referred to in the special case at paragraphs 10 to 12. That is at pages 238 to 239. Maurice Blackburn Cashman is a firm which operates on the eastern seaboard. It has its main office in Melbourne, has its computer server in Melbourne, and uploaded, I think is the terminology, onto the computer server is certain information.
At page 36 of volume 1 your Honours will see some of the information on Maurice Blackburn Cashman’s website. That is information about Comcare. That is the scheme established by the Safety, Rehabilitation and Compensation Act 1988 (Cth). It involves to some extent enforcing legal rights created by Commonwealth legislation through administrative mechanisms and to some extent enforcing them through the courts.
What your Honours see is a general description of Comcare on that page and in the pages that follow. About two thirds of the way down, it says that:
The law relating to Comcare compensation entitlements can be complicated. Circumstances in which you should contact Maurice Blackburn Cashman for advice include:
. . .· where you have suffered an injury which is not of a temporary nature. If this occurs you may be able to pursue a lump sum compensation claim or to sue for compensation.
If these circumstances apply to you, or if you have any queries in relation to any aspect of your Comcare entitlements, you should contact solicitors at our Melbourne, Brisbane or Sydney offices for advice.
There is then, as your Honours will see, over the next few pages a description, which would no doubt be helpful to the layperson, of what the Comcare scheme is and the nature of the compensation that one might be able to obtain from it. Then at page 46 there is a similar webpage dealing with superannuation law. I will not go through the detail but it is very similar in structure. It invites persons who want to know more to contact Maurice Blackburn Cashman for advice.
In the material about superannuation that follows, page 48 onwards, what your Honours will see are references, amongst other things, to dealing with the Australian Taxation Office, page 51, and, at pages 61 through to 63, making claims on the Victorian Government Superannuation Scheme and the Commonwealth Government Superannuation Scheme.
HAYNE J: As things presently stand, are we to decide the case on the assumption that there is no 109 effect on the operation of this prohibition in matters to do with, for example, Comcare, the federal aspects of superannuation, the broadcasting and television limitations?
MR GAGELER: If I can put it this way, your Honour, on the pleadings and in the questions raised in the special case, there is no issue raised for the consideration of the Court based on section 109, but I have heard what has been said.
KIRBY J: The advertising of superannuation – that is caught up by the regulation, is it? It is not purely personal injury‑type litigation?
MR GAGELER: No. Your Honour has seen the form of the prohibition.
KIRBY J: I was just thinking of the Chief Justice’s question earlier about the shareholders.
MR GAGELER: I am sorry, yes. That may not ‑ ‑ ‑
KIRBY J: I mean, one could perhaps draw a distinction between, say, personal injury‑type litigation, causing lots of trouble out there in the community of people pursing that, but superannuation is right in the heart of economic interests and people’s economic benefits and entitlements.
MR GAGELER: Yes.
KIRBY J: What, then, is the difference? What is the suggested difference between the people who are shareholders and the people who are persons with superannuation claims?
MR GAGELER: I had not suggested a difference in my answer to the Chief Justice, but what your Honour ‑ ‑ ‑
KIRBY J: No, I know you did not. I am just wondering what it can be.
McHUGH J: Well, one difference is that the prohibition is against “personal injury legal service”, which is defined as “any entitlement to recover money in respect of personal injury”, which covers “personal injury”, being defined to include impairment of a person’s physical or mental condition and disease.
MR GAGELER: Yes. So the superannuation scenario falls within the scope of the prohibition, but I had, I think probably wrongly, assented to the Chief Justice’s question in saying that the letter to shareholders would fall within the scope of the prohibition, but in terms of principles it is difficult to distinguish the two.
GLEESON CJ: I thought you said that the letter to shareholders would not fall within the scope of the prohibition.
MR GAGELER: If I said that, I was correct, I am sorry, your Honour.
GLEESON CJ: Yes. I was suggesting to you that the fact that it would not fall within the prohibition demonstrates that this is not a method of regulating legal ethics.
MR GAGELER: Yes, I am sorry.
GLEESON CJ: The purpose of the regulation is to reduce the number of personal injuries claims that are brought to court.
MR GAGELER: Yes, and I assented to that absolutely and I maintain that position. Your Honours ought also glance at the advertisements. There is the APLA advertisement at page 25. It is suggested in some of the written submissions that what I might call the political element, “Despite the best efforts of Premier Bob Carr and Senator Helen Coonan to stop you”, is somewhat contrived and somewhat trivial.
CALLINAN J: What was her portfolio, Mr Gageler?
MR GAGELER: Senator Coonan?
CALLINAN J: Yes.
MR GAGELER: She was the Assistant Treasurer. She is now the Minister for Communications. Put that to one side, your Honours, there is nothing contrived or trivial about the statement “you may still have legal rights to compensation”, and that is the essence of the communication and it is the essence of the prohibition.
There are other advertisements that are the subject of questions before the court. One is at page 32. These are the standard form of advertisements that used to be made and your Honours see the Maurice Blackburn Cashman advertisement at page 32 referring to the possibility of superannuation lump sum entitlements. That is now prohibited. At page 33 there is an advertisement in the middle of the page concerning asbestos and dust diseases injuries, and that is now prohibited. At page 34, advertisement:
Seriously Injured?
Maurice Blackburn Cashman
Provides legal advice in the following areas:
That is now prohibited.
KIRBY J: These are New South Wales publications, are they?
MR GAGELER: These were New South Wales publications, yes. At page 72, the advertisement of the third plaintiff, Mr Whyburn – apparently Mr Whyburn could still have an advertisement that referred to all of the subject matters on the right-hand column in that box, but he would have to leave out most of the things referred to in the left-hand column if he ‑ ‑ ‑
GUMMOW J: He could do conveyancing.
MR GAGELER: He could do conveyancing; he can do wills and probate; query industrial and labour law. Your Honours, can I come to the constitutional freedom ‑ ‑ ‑
GLEESON CJ: Before you get onto the substance of your argument, can I ask you whether you have agreed with the other people at the Bar table on a division of time? If you have not, can you do so at lunchtime?
MR GAGELER: Yes, we have. Your Honour, may I focus on the first limb of the test stated in Lange ‑ ‑ ‑
KIRBY J: No one, of course, is stopping Mr Whyburn doing any of these things. It is simply advertising and letting people know that he does it.
MR GAGELER: Yes, what the prohibition is seeking to do is to stop the person from knowing that Mr Whyburn or any other lawyer does these things - 189 CLR 567, and I am focusing on the first limb. As we see it, on the issues joined between the parties and the interveners, two quite fundamental issues arise. The first is what is or ought be included in the concept of government or political matters, if I could expand on that with a number of sub‑questions. Does government add anything too political and is the constitutional protection confined to communication on topics that affect federal electoral choice under sections 7, 24 and 128 of the Constitution, or does or ought the constitutional protection also extend to communication on topics that affect the recognition and enforcement or legal rights either against the Commonwealth Executive, Chapter II of the Constitution, or through the Courts, Chapter III of the Constitution.
KIRBY J: Now, as to the second point, has that been the subject of comment in the court apart from Chief Justice Mason’s remark in Cunliffe?
MR GAGELER: Yes, and I will take your Honours to that. Thirdly, is a communication to be excluded from the constitutional protection if it has a commercial purpose or motivation? Those are the sub‑issues that we see as arising under the first of, what I have described as, the two fundamental issues.
The second fundamental issue that we see as arising and really arose in part in my answer to some questions from Justice Callinan is what does it mean to burden a constitutionally protected freedom and may I address that first and very briefly. In our submission, it is answered in the Lange formulation itself, the reference being at page 567 to a law that effectively burdens communication in its terms, operation or effect. So that what we are concerned with, with this implied constitutional prohibition, leaving scope to one side for the moment, is like any constitutional prohibition, substance and not form. We are concerned with practical effect as much as with strict legal operation. We are concerned with a practical effect that stops short of outright prohibition.
There is, in the American First Amendment cases, terminology that invokes the notion of killing free speech. In our submission, it is sufficient to fall within the first limb of Lange, leave the scope of the communication protected to one side for a moment, that there be a killing effect on the exercise of constitutionally protected communication, or putting the same point another way, that there be a substantial, and by that I mean non-trivial, practical impediment to the exercise of the freedom.
GLEESON CJ: As to the first, what is the difference between a government matter and a political matter?
MR GAGELER: I am going to come to that.
GLEESON CJ: When you do, you might consider what kind of matter is not capable of being political.
MR GAGELER: Yes, I will come to that as well. Dealing simply with the practical effect, can I give your Honours Levy as a useful illustration of that. Levy (1997) 189 CLR 579, your Honours will recall, was a case where the legal operation of the law was to prevent persons from entering a particular area where duck hunting was occurring. It was accepted that the practical operation of the law was to burden freedom of communication. I just wanted to refer your Honours to two short passages, one at page 614 in the joint judgment of Justice Toohey and Justice Gummow, where your Honours said that:
The Regulations exemplify a law which has the effect, if not the purpose, of curtailing to some degree the constitutional freedom.
That was enough to bring the first limb of Lange into play, even though your Honours went on, on the same page, page 614, to make the point that it was not a significant curtailment. So any curtailment was enough to invoke the freedom. Similarly, at page 623 in the judgment of your Honour Justice McHugh, a very similar point is made, about point 6 of the page and following, concerning practical impediment to communication.
Your Honours, to come to the issue of what is included in government or political matters, what I seek to do is to take your Honours through a number of authorities, some very old, some much more recent, all of which suggest that there is a constitutional freedom to approach the institutions of government established by the Constitution for the purpose of asserting legal rights. In our submission, that line of authority has survived Lange and is consistent with it.
The first is the passage in Quick & Garran to which your Honour Justice McHugh referred, Quick & Garran pages 958 and 959. Dealing with section 117, but going beyond the text, heading page 958:
FEDERAL PRIVILEGES AND IMMUNITIES. – In the Constitution of the Commonwealth there is no special section corresponding to the Fourteenth Amendment of the American Constitution, declaring who are “the people of the Commonwealth,” affirming their privileges and immunities, and placing them beyond the power of the States to abridge. Since the decision of the Supreme Court of the United States in the celebrated Slaughterhouse Cases (16 Wall. 36) it has been doubted, by competent American jurists, whether the Fourteenth Amendment was really necessary in order to place Federal privileges and immunities beyond State control. The mere fact that the Constitution has created privileges and immunities is, it is argued, of itself sufficient to place them beyond the reach of unfriendly State legislation. The State laws can only operate within the sphere of power assigned to the States. The same reasoning applies to the Constitution of the Commonwealth, and accounts for the absence of any affirmation similar to that of the Fourteenth Amendment. The privileges and immunities of the people of the Commonwealth exist within the sphere of Federal power, and by the Constitution itself the Federal laws are paramount and supreme; they cannot be impaired or abridged by State legislation. (Cooley’s Principles of Const. Law, 274.)
Although there is no special section affirming the existence of Federal privileges and immunities, such privileges and immunities may be gathered from the express provisions or necessary implications of the Constitution.
There is then a number of references to express provisions, and towards the bottom of the page:
To be allowed to visit the seat of Government, to gain access to Federal territories, to petition the Federal authorities, to examine the public records of the Federal courts and institutions, are rights which, if not expressly granted, may be inferred from the Constitution, and which could not be taken away or abridged by the States any more than those directly and clearly conveyed.
Then over the page:
Immunities are generally the corollaries of privileges.
GUMMOW J: What happened in Crandall v Nevada, again?
MR GAGELER: I think it is summarised by the sentence that precedes it, that that was where a State sought to tax ingress and egress.
McHUGH J: Yes, it was a tax on travellers, was it not?
MR GAGELER: Yes, which was struck down. Your Honours will see a little further on the reference to Insurance Co v Morse. It is said in the text here:
The people of the Commonwealth having a right to sue in the Federal courts in the prosecution of causes specified by the Constitution, a State could not obstruct the citizens of other States in suing its own citizens in the Federal courts.
Then there is a reference to the American case of Insurance Co v Morse. That was a case that struck down a State statute which said, “If you want to do business in Wisconsin, you have to waive your rights to bring suits in federal courts and only come to sue in our courts”. Then there is a heading your Honours will see, “ENFORCEMENT OF FEDERAL PRIVILEGES AND IMMUNITIES”. It is said in the last two sentences there:
Every privilege or immunity conferred by the Constitution implies a prohibition against anything inconsistent with the free exercise or enjoyment thereof. Any law passed by a State, in violation of any constitutional privilege or immunity, would be null and void; the courts would not enforce it.
Then there is R v Smithers; Ex parte Benson (1912) 16 CLR 99. This was a case in which the Court unanimously struck down a conviction under State law that had the practical effect of preventing an indigent Victorian from entering New South Wales.
GUMMOW J: This legislation, it seems to us, is rather odd now, but in 19th century colonial Australia there was quite a bit of that legislation. There was Victorian legislation passed as soon as they got representative government to keep out Tasmanian convict people.
MR GAGELER: Yes, and it was said as well as a result of the Constitution you cannot have that sort of thing any more.
GUMMOW J: Yes.
MR GAGELER: Your Honour may recall that amongst other powers, including lighthouses, lightships, beacons and buoys, one of the powers – influx of criminals is one of the powers given to the Commonwealth Parliament.
GUMMOW J: Yes, exactly.
MR GAGELER: Two of the members of the Court, Justices Isaacs and Higgins, applied the intercourse limb of section 92, but two other members of the Court, that is, the Chief Justice and Justice Barton, based their reasoning on the applicability in Australia of the approach taken by the Supreme Court of the United States in Crandall v Nevada.
At page 108 your Honours will find this in the judgment of Chief Justice Griffith. His Honour said:
The so-called “police power” of the Colonies before the establishment of the Commonwealth extended to the exclusion of any person whom the Colonial Parliament might think an undesirable immigrant. It is clear that the continuance of such a power in its full extent after the federation is inconsistent with the elementary notion of a Commonwealth. On that point I adopt the language of Miller J in the case of Crandall v State of Nevada. After referring to the right of federal officers to free access to, and transit through, the States for federal purposes he proceeded:- “But if the government has these rights on her own account, the citizen also has correlative rights. He has the right to come to the seat of government to assert any claim he may have upon that government, or to transact any business he may have with it; to seek its protection, to share its offices, to engage in administering its functions. He has a right to free access to its seaports, through which all the operations of foreign trade and commerce are conducted, to the sub-treasuries –
and so on. Over the page it is said:
In my opinion, therefore, the former power of the States to exclude any persons whom they might think undesirable inhabitants is cut down to some extent by the mere fact of federation, entirely irrespective of the provisions of secs 92 and 117.
The extent to which it is cut down, and the line of demarcation which should be held to separate a justifiable from an unjustifiable exclusion, may be hard to determine, and yet it may be possible to say on which side of it a particular case lies. The basis of the discrimination, so far as it does not depend upon positive enactment, must be the necessity of the continuance of the power, to use the words of Sir Montague Smith, to make laws “designed for the promotion of public order, safety, or morals.”
In the present case, the offence committed in Victoria by reason of which the applicant was convicted on his coming into New South Wales was “being a person having insufficient lawful means of support,” which offence may by the law of Victoria be punished by twelve months’ imprisonment. I do not think that the exclusion of an inhabitant of another State for such a reason can be justified on any such ground of necessity as I have referred to.
This alludes to an approach of reasoning that is very similar to the second limb of the Lange test. Partly in answer to your Honour Justice Callinan’s earlier question:
I think that on this application the Court is entitled to go behind the formal words of the statute attacked, and inquire as to the real reason of the interference with the applicant’s freedom of migration from one State to another.
Then Justice Barton says that he was of the same opinion:
The reasoning of the Supreme Court of the United States in the case of Crandall v State of Nevada, as expressed by Miller J, portion of which, quoted by my learned brother, has been expressly adopted by the same Court in a later decision, is as cogent in relation to the Constitution of this Commonwealth, as it was when applied to the Constitution of the United States. The whole of that memorable judgment is instructive upon the rights of the citizens of a federation. The reasoning shows that the creation of a federal union with one government and one legislature in respect of national affairs assures to every free citizen the right of access to the institutions, and of due participation in the activities of the nation.
There is then in the Dixon Court in Pioneer Express v Hotchkiss (1958) 101 CLR 536 an endorsement of similar sentiments.
Your Honours, I think will have this as a photocopy. This was a case that was concerned with the validity of a State law that required a licence to carry passengers by commercial vehicle, relevantly from Sydney to Canberra. It was argued that the law was invalid under section 92. That argument was by majority rejected.
McHUGH J: It is good to see these old cases again. We have not seen much of them in the last 17 years since Cole v Whitfield.
MR GAGELER: There is life in them yet, your Honour. There was another argument though that was based on an implied freedom and the argument your Honours will see at page 540. This is in the argument of Mr Menhennitt for the plaintiff at about point 6:
There is implicit in the Constitution a right of free movement of all persons to and from the seat of government, that being the Australian Capital Territory.
There is a reference to Crandall v State of Nevada, Ex parte Benson and Quick & Garran. Now, that argument was rejected. It was rejected in its application for the law. It was not rejected in totality. Your Honours see the relevant discussion in the judgment of the Chief Justice at the bottom of page 549 over to the top of the next page. In the last three lines at page 549, the Chief Justice said this:
A claim resting on a much more solid foundation was made for a constitutional implication protecting the citizens of Australia, or if one prefers to put it from the corresponding opposite point of view, protecting the Capital Territory, from attempts on the part of State legislatures to prevent or control access to the Capital Territory and communications and intercourse with it on the part of persons within the States, and to hamper or restrain the full use of the federal capital for the purposes for which it was called into existence. No one would wish to deny that the constitutional place of the Capital Territory in the federal system of government and the provision in the Constitution relating to it necessarily imply the most complete immunity from State interference with all that is involved in its existence as the centre of national government, and certainly that means an absence of State legislative power to forbid, restrain or impede access to it. But no such immunity can be held to be invaded by the State laws here in question.
So the principle was accepted.
HAYNE J: His Honour goes on to point out that pressing the implications so far as to disable a State from making such a law as the law then in question would be to go beyond and outside the constitutional doctrines by which implications are authorised, and something may turn on the content on that, perhaps Delphic, statement.
MR GAGELER: Yes, a Delphic cancer.
HAYNE J: You do not have the smoke around you, Mr Gageler.
MR GAGELER: Page 500 ‑ ‑ ‑
McHUGH J: An extreme application was being pressed for in that case. That was prohibition of driving without being registered in the Territory, was it not?
MR GAGELER: Yes, and page 560, in the judgment of Justice Taylor, there is a reference to the same argument at about point 2:
Such a right is, it is said, implicit in the constitutional instrument and is the only view reconcilable with the Federal structure of the Commonwealth. I have no doubt that some such implication is clearly justifiable. But, equally, I have no doubt that –
the law does not infringe the implied prohibition, his Honour goes on to say.
KIRBY J: Their Honours did not seem to be shocked by these constitutional implications which are often said to be a horrible creation of the Mason era. They just accepted that there were constituted implications and, indeed, in the Boilermakers’ Case they found a very big one.
MR GAGELER: Yes.
CALLINAN J: Sir Owen Dixon had been there a long time. He would be immune to any shock by then.
MR GAGELER: Yes. There was the Boilermakers’ Case, there was the Melbourne Corporation Case, these are all within the same period. Justice Menzies, your Honours might note, page 566, about point 8. Then we come to the more modern authorities and start with Nationwide News 177 CLR 1. I am not planning to take your Honours laboriously through the more recent cases with which your Honours are well familiar but can I just go to a couple of significant passages. At page 72, in the judgment of Justices Deane and Toohey, there is this statement about point 3 of the page:
The people of the Commonwealth would be unable responsibly to discharge and exercise the powers of governmental control which the Constitution reserves to them if each person was an island unable to communicate with any other person . . . Moreover, the doctrine of representative government which the Constitution incorporates is not concerned merely with electoral processes. As has been said, the central thesis of the doctrine is that the powers of government belong to, and are derived from, the governed, that is to say, the people of the Commonwealth. The repositories of governmental power under the Constitution hold them as representatives of the people under a relationship, between representatives and represented, which is a continuing one. The doctrine presupposes an ability of represented and representatives to communicate information, needs, views, explanations and advice. It also presupposes an ability of the people of the Commonwealth as a whole to communicate, among themselves, information and opinions about matters relevant to the exercise and discharge of governmental powers and functions on their behalf.
GUMMOW J: There is nothing new in this. If one goes to Theophanous 182 CLR 104 at 125, there is a reference in footnote (73) and (74) to Canadian decisions in advance of the Charter which have come, more or less, to the same conclusion back in the 1930s, Sir Lyman Duff, not a notable wild radical.
MR GAGELER: No, absolutely not.
GUMMOW J: What Sir Lyman Duff said in Re Alberta Legislation repays some study, I think. It is referred to in Theophanous at 125 and again at 180.
HAYNE J: It is cited at some length at page 49 of Nationwide News v Wills in Justice Brennan’s ‑ ‑ ‑
MR GAGELER: Yes, and it is relied upon extensively, to my recollection, by Chief Justice Mason in the political advertising case, but we will look carefully at it again, your Honour. What I wanted to draw further out of Justices Deane and Toohey’s judgment at page 73 is this. His Honour said at the bottom of page 72:
It follows from what has been said above that there is to be discerned in the doctrine of representative government which the Constitution incorporates an implication of freedom of communication of information and opinions about matters relating to the government of the Commonwealth. In so far as the people of the Commonwealth are concerned, that implication of freedom of communication operates at two levels.
The first is important:
The first is the level of communication and discussion between the represented and their representatives, that is to say, the level of communication and discussion between the people of the Commonwealth on the one hand, and the Parliament and its members and other Commonwealth instrumentalities and institutions on the other.
In that respect, your Honours will see that there is an invocation of R v Smithers; Ex parte Benson and in footnote 28 Quick & Garran. Then over the page, page 74.3, their Honours say:
The second level at which the implication of freedom of communication and discussion operates is the level of communication between the people of the Commonwealth.
Then Theophanous (1994) 182 CLR 104, again, if I can pick up just a couple of passages ‑ ‑ ‑
KIRBY J: At some stage, when you have finished this analysis, would you come back to say how one can fairly characterise this regulation as something that interferes with communication about governmental and political matters? It seems a bit of a long bow, really, to characterise it in that way, and that is why I am just wondering why you have put so much emphasis in your written submissions on this, as distinct from the implied freedom of access to the courts, which is a much more natural category, one would think, to be talking about.
MR GAGELER: I hope, in my oral submissions, I am putting the emphasis on the latter, your Honour. We do not abandon the former, but the substance of this legislation is the latter.
KIRBY J: I can see how it is a burden on communication between citizens in the Commonwealth, but of a governmental or political character? It does not seem to ‑ ‑ ‑
MR GAGELER: Again, and this is in part in answer to the Chief Justice, does the word “government” as formulated in Lange cover it or is it a slightly different implication? I will come to that. Theophanous, in the judgement of Justice Deane at page 166 – in Justice Deane’s terminology, as would be gathered from the passages in Nationwide News to which I have referred, the word “political” covers communications with government. At page 166, what your Honours see is, again, his Honour invoking R v Smithers; Ex parte Benson and in footnote (4) also Pioneer Express Pty Ltd v Hotchkiss; then, at pages 169 to 170, even more clearly treating Crandall v Nevada, as explained in Quick & Garran, as applicable to the Australian constitutional structure and, indeed, as underlying what his Honour termed “the freedom of political communication”.
Similarly, your Honour Justice McHugh at page 206 – while your Honour did not at that point of history accept that any general freedom of communication is to be discerned in the Constitution, what your Honour did say at page 206.4 was:
No doubt some rights of freedom of communication are necessarily implied in the Constitution –
and went on to cite Quick & Garran.
Can I then come to Cunliffe 182 CLR 272. Your Honours, that was a case where there was a law that was held by majority to restrict the constitutional freedom but nevertheless to be appropriate and adapted to a purpose that was within power. The law in question your Honours can pick up at page 288 where it is said:
The centrepiece of the regulatory restrictions is the requirement that a person who is not a registered agent must not give immigration assistance (s 114F(1)). That requirement is subject to certain qualifications . . . Lawyers are excluded, but only from giving “immigration legal assistance” –
What your Honours see over the page at page 289 at the top of the page is the definition of “immigration assistance” and towards the middle of the page the definition of “immigration legal assistance”. “Immigration legal assistance” covered doing things in relation to courts.
Four members of the Court, on our reading, accepted that the giving of immigration assistance fell within the scope of the constitutional freedom. The Chief Justice, at pages 298 to 299, so held. At about point 8 of page 298 the Chief Justice, dealing with a Commonwealth submission, said:
That submission, which asserts that the freedom does not extend to communications with government authorities or other persons in the course of, or for the purposes of, the administration of an Act according to its terms, takes a too narrow view of the part which freedom of communication plays in the workings of representative democracy and government. That freedom necessarily extends to the workings of the courts and tribunals which administer and enforce the laws of this country. The provision of advice and information, particularly by lawyers, to, and the receipt of that advice and information by, aliens in relation to matters and issues arising under the Act falls clearly within the potential scope of the freedom.
Justice Deane unfortunately did not say anything quite as pithily but the substance of his Honour’s judgment was to the same effect. At the bottom of page 335 his Honour, under the heading “Freedom of political communication and discussion”, referred back to the joint judgment in Nationwide News and to the two levels of communication that were being referred to there and said in effect that while that discussion was framed in respect of the people of the Commonwealth, it also applied in respect of communications with aliens or about aliens seeking to enforce or assert rights within Australia.
At page 340, dealing with the Act, his Honour under the heading “Part 2A of the Act” said in the second sentence:
Clearly enough, “immigration assistance” essentially consists of communication and discussion. A person “makes immigration representations if he or she makes representations to, or otherwise communicates with, the Minister, a member of the Minister’s staff or the Department (whether directly or indirectly and whether orally or in writing) on behalf of an entrance applicant in relation to the entrance application”. The giving of such immigration assistance and the making of such immigration representations constitute communication and discussion about matters relating to the government of the Commonwealth, that is to say, political communication and discussion.
There may be, as I have said, some quibble about the precise terminology but as his Honour used “political” it encompassed information about ‑ ‑ ‑
KIRBY J: Chief Justice Mason and Justices Deane and Gaudron dissented in this case, but there does not seem to be a disagreement about the existence of implications in the Constitution.
MR GAGELER: That is right. What I am dealing with is the first limb of Lange. In relation to what has since become the first limb of Lange, there is a majority of the Court that accepted that these communications fell within it. It was the second limb where the plaintiff was unsuccessful ‑ ‑ ‑
KIRBY J: At this stage, did Justice Dawson – he was adhering to his view that there was no such implication.
MR GAGELER: I will come to him, he is not quite as clear as that. Your Honours will see at page 341 it said at about the middle of the page:
The overall effect of the provisions of Pt 2A is to curtail the freedom of the citizen, who is not a registered agent, to give immigration assistance, whether paid or voluntary . . . It follows from what has been said above that such a direct restriction of a class or type of communication and discussion which is inherently political in its nature is beyond the legislative powers of the Parliament except to the extent that it can be justified in the public interest in the sense which I have explained.
Now, the “sense” that his Honour explained is the “sense” at page 339 and that is in a nutshell the highest level of scrutiny. The bottom of page 339, his Honour says that high level of scrutiny applies:
where the impugned law prohibits or controls a particular class or type of communication or discussion which is either inherently political in its nature or is a necessary ingredient of effective political communication or discussion. In those cases, the law will be consistent with the implication only if its curtailment of the freedom of political communication or discussion can, according to the standards of our society, be justified in the public interest for one or other of the possible reasons identified in . . . Nationwide News –
and I will not go on, but it was that most stringent standard of scrutiny that his Honour held was satisfied in this particular case.
GLEESON CJ: I can understand why in order to have a system of representative government, the conduct of politics requires freedom of communication.
MR GAGELER: Yes.
GLEESON CJ: It does not necessarily follow that the freedom of communication that is required is freedom only of political communication because any topic about which a Parliament may make laws is potentially political, is it not?
MR GAGELER: Yes.
GLEESON CJ: I have difficulty imagining any kind of conduct that is not potentially the subject of political communication.
MR GAGELER: Yes, that is looking at “political” even on a narrow view, that is, as what might ultimately actuate voters in exercising rights under sections 7, 24 or 128 of the Constitution. It is hard to see where the line is to be drawn, I agree. But his Honour here was using “political”, as we read him, in a more expanded sense and, in fact, he was using “representative democracy” not simply as a label for the processes contemplated by sections 7, 24 and 128 but as the description of the relationship between a citizen and the institutions of government more broadly defined that the Constitution establishes.
McHUGH J: But in this area context is everything, is it not?
MR GAGELER: Yes.
McHUGH J: If you talk about marriage, as such, you are not talking about a political or governmental matter. If you talk about marriage in the context of legislation with respect to it, then you are in a different area of discourse.
MR GAGELER: Yes. If you are selling apples or cigarettes, then while it is possible to imagine scenarios where some political element might arise, that would have to be rare.
GLEESON CJ: Why, if you are going to draw an implication from the existence of representative democracy, would you not just draw an implication of freedom of communication, full stop, rather than force yourself into trying to distinguish on a case‑by‑case basis whether any particular kind of communication was political?
MR GAGELER: Your Honour, I would not seek to argue against that, but I can for present purposes accept that there may be some limit to the concept of freedom of communication on political or governmental matters, that is, accept the qualification “political or government matters”, but say I fall within it. I do not seek to argue against a wider implication.
CALLINAN J: That would involve abandoning one limb of the Lange test, would it not? You would simply have whether it is reasonably adapted, appropriately adapted, would you not, because everything is politics?
KIRBY J: There may be some highly technical, mathematical or uncontroversial matters that do not fall within the category.
MR GAGELER: Your Honours, I do not want to be seen to be necessarily arguing for an abandonment of some words in the first limb of the Lange test to achieve the result that I seek. I am seeking to explain that if one looks at the core value that is sought to be protected by this line of authorities that goes back beyond the beginning of our own Constitution, we fall within the core area of constitutional protection.
CALLINAN J: The Chief Justice has certainly raised in my mind a question that I had not thought of before, that is whether the Lange test correctly states what should be the test. If, in fact, everything is political, then you just throw out part of the test. I know you are reluctant to do that, but this is a constitutional matter and we have to find out what the implication is.
MR GAGELER: Yes.
KIRBY J: The value of the first limb of Lange is that it anchors the principle in the test and structure of the Constitution.
MR GAGELER: Yes.
KIRBY J: Therefore, it cannot go. It is the foundation. It has to go back and we do not have to decide in this case what the outer perimeters of political and governmental are because ‑ ‑ ‑
McHUGH J: You can discuss any subject under the sun for the purpose of government or politics. If you do, it then becomes a government or political matter. If you do not do that ‑ ‑ ‑
MR GAGELER: If you are discussing it for some other purpose where the subject matter is ‑ ‑ ‑
McHUGH J: If you are discussing the law of physics in front of a group of students, you are not discussing a political or government matter.
KIRBY J: We have had that discussed at some length in the special leave.
MR GAGELER: I am conscious that your Honours have heard it.
CALLINAN J: But this Court has held that representative government encompasses municipal government, State government. I cannot think of any area that could not be the subject of some kind of legislation or regulation. It covers the field.
MR GAGELER: Yes.
KIRBY J: It cannot regulate where the sun rises in the morning.
MR GAGELER: It might mean that Pandora cannot be put back in the box.
GLEESON CJ: But by hypothesis we are dealing with laws that burden freedom of communication. That is the presupposition of the entire discussion.
MR GAGELER: Yes.
GLEESON CJ: If a law burdens freedom of communication, why is the subject not political?
MR GAGELER: The subject matter ‑ ‑ ‑
GLEESON CJ: Why would you want to pass a law burdening freedom of communication about something that is not capable of being political?
MR GAGELER: Because you might be concerned with child pornography.
GLEESON CJ: Is that not a political subject?
MR GAGELER: It may be for some. It may be seen to be for some.
GLEESON CJ: That is a good example. Why would that be excluded from the realm of political discourse?
MR GAGELER: Your Honour, I do not feel comfortable being in a position where I am arguing for things to be excluded from a constitutional protection which I seek to invoke. I can admit of the possibility that it may be excluded and it does my argument no harm. I can also accept that the line is difficult to draw.
HAYNE J: That is because you are debating the content of the constitutional protection formed a priori. You are not debating the implication. Unless you root the debate back in the implication in the Constitution, you are at risk of debating the content of the minor premise of the argument to the exclusion of the major premise or to the predetermination of the major premise a priori.
MR GAGELER: Your Honour, I accept that as fair criticism and I think I have been attempting to focus on the major premise. The question that is raised is one that I must say I find difficulty in answering. That is once one accepts an area of political dialogue, how is it possible to exclude on any categorical basis different subject matters of communication from the label “political”? I think it is very difficult and the jurisprudence of the United States Supreme Court on the First Amendment demonstrates that.
HAYNE J: Just so. That is concerned with specific text rather than with the requirements which follow from Engineers’ Case and the like. We begin with the constitutional text. We do not begin at some later point.
MR GAGELER: Fully accepted. I am concentrating on the major premise. Your Honours, I am also concentrating on authority and I just wanted to complete what I had to say about Cunliffe. That is Justice Deane’s judgment in Cunliffe. Justice Gaudron at page 387 at about point 3 agreed with Justice Deane. She says:
The third matter on which I agree with his Honour is that Pt 2A operates to curtain communication and discussion of political matters.
At page 390 her Honour added something to which your Honours’ attention should be drawn. At about point 8:
One other matter should be noted. The prohibition in s 114F operates with respect to the preparation for, or representation of, an entrance applicant in court proceedings. Although no separate argument was directed to this aspect of the prohibition –
that is because the plaintiffs were lawyers and fell within the exemption in any event –
I have the gravest doubts whether, consistent with Ch. III of the constitution, the Parliament may limit the assistance available without charge to persons involved in court proceedings, particularly if they are not legally represented.
Justice Toohey, the fourth of the four members of the Court who accepted that the giving of immigration assistance fell within the scope of the constitutional protection, is at pages 378 to 379. Page 378.7:
The implied freedom which the plaintiffs seek to derive from the two decisions mentioned is identified as freedom of communication between the people of the Commonwealth and the institutions and agencies of government and, further, freedom of communication among the people of the Commonwealth of information and opinions about the institutions and agencies of government.
At the top of page 379:
The question is: in what respect, if any, does the law in question impair the implied freedom of communication which the plaintiffs have properly identified?
GLEESON CJ: Well, now, if the communication in question is a letter from a lawyer to somebody who is not the lawyer’s client saying, “If you engage my services I can get a huge award of damages for you”, in what respect is that a communication about a government or political matter?
MR GAGELER: Leave aside the terminology of government or political, what the communication is about is establishing a relationship between the lawyer and the client, pursuant to which relationship the client would receive legal advice and assistance and may choose to approach the courts to assert legal rights.
So that those two forms of communication between the lawyer and the client about legal rights and between the client, or the lawyer on the client’s behalf, and the institutions of government which are there for the vindication or assertion of legal rights, are burdened by the law that stops the initial communication.
GLEESON CJ: I might have my facts wrong.
MR GAGELER: Yes.
GLEESON CJ: But are there not some kinds of tribunal in New South Wales in which people are not entitled to be represented by lawyers?
MR GAGELER: Yes.
GLEESON CJ: I had in mind perhaps a small claims tribunal or perhaps industrial tribunals. Would it be within the power of the Parliament of New South Wales to provide that people could not be represented by lawyers in pursuing claims for damages for personal injury?
MR GAGELER: Your Honour, can I put it this way. Such a law, if I can just think of it as a blanket prohibition, would need to be assessed within the framework of Lange, in our submission.
GLEESON CJ: Whatever is the law that prevents lawyers representing people in the Small Claims Tribunal, suppose a law of the same kind was enacted to prevent lawyers representing people in pursuing claims for damages for personal injuries. If that were valid, it goes a great deal further than the law with which we are presently concerned, does it not?
MR GAGELER: Yes, it does.
CALLINAN J: Mr Gageler, could I draw your attention to page 255 in that report, where it is said that there has been legislation to allow:
specialist accreditation schemes to be conducted by persons or bodies other than the professional associations ‑ ‑ ‑
MR GAGELER: I am sorry, your Honour, I have missed ‑ ‑ ‑
CALLINAN J: Page 255, which is related, I think, to the sort of question that the Chief Justice is asking you. Legislation in relation to non‑lawyers concerning legal matters.
MR GAGELER: Yes, your Honour, can I put it this way. Any law that places a substantial burden on the ability of a citizen to approach a court for the vindication of legal rights would need to satisfy the most stringent of the possible gradations of the Lange test, in our submission. In relation to the provisions that might exist for representation or lack of representation in things like small claims tribunals or residential tenancy tribunals, as we understand it, none of those prohibitions are in any way directed to preventing people from being able to vindicate their rights in those tribunals; quite the opposite. It is really putting the parties to proceedings in the tribunal on a level playing field, where they are seen to be more equally able to assert and defend actions. Now, to simply say ‑ ‑ ‑
HAYNE J: Level playing field had to come into play sometime, did it not, Mr Gageler? I mean, really, that covers the most wonderful multitude of sins, does it not?
MR GAGELER: I was not saving it up, your Honour. All I am saying is that one is there looking at ends and means and less restrictive means – one is in the second limb of the Lange principle.
KIRBY J: That appears to be confirmed, because if you had a law that said the person could not be represented by a lawyer in a criminal trial or in a criminal trial for a non-indictable offence because this might get cases through more quickly and more efficiently and save a lot of money, then a real question would be presented as to whether that was compatible with the Constitution.
MR GAGELER: Yes, and would admit of a fairly ready answer ‑ ‑ ‑
GLEESON CJ: But would the answer – I think I could understand a fairly ready answer, but not one based on freedom of communication.
MR GAGELER: Well, it depends on how you put it, your Honour. One placed on what is really two sides of the same coin, one placed on the institutional operation of the court, and the other side of the same coin on the right or freedom of the citizen to invoke the operation of the court.
GLEESON CJ: I do not know what came of it, but I have in the back of my mind, and once again my memory may be playing tricks on me, that there was some kind of legislation to that effect proposed in relation to family law at one stage in the last couple of years.
MR GAGELER: I do not know. Your Honours, can I just mention the other members of the Court in Cunliffe, as we read them, did not in any way reject the – in any outright way anyway – the application of the constitutional freedom. Justice Brennan, page 328, at about point 2, where his Honour said that aliens cannot have any constitutional rights, but did not rule out that citizens, or the Australian people, may have a right of access to government.
Justice Dawson, at page 364 to 365, appears to have accepted the analysis of Justices Deane and Toohey in Nationwide News and appears, at the bottom of page 364 and at the top of page 365, to have seen this law as imposing “no barriers” to communication between members of the public and government about the operations of Government. Justice McHugh, at page 395, referred back to your Honour’s judgment in Theophanous, and, of course, it was in Theophanous that your Honour did not seem to doubt the continuing application of some form of freedom of communication of the type mentioned in Ex parte Benson.
Can I come then to Lange itself, your Honours, and I hope focusing on the major premise. As a matter of authority, we read Lange as not concerned to delimit for all purposes the scope of the constitutional freedom of communication. It was concerned specifically with the availability of the constitutional defence to the common law action of defamation recognised in Theophanous and Stephens and to the correctness of the holdings in that case.
McHUGH J: Lange was faced with a number of problems concerning the formulation of the freedom. One simple way would have simply been to say that freedom of political discussion is an indispensable system of representative and responsible government. One view was that to talk about freedom of political discussion may not include discussion of what could be regarded as government matters, internal matters, administrative matters. Back in Nationwide News Justice Brennan had referred to a discussion of governments and political matters and there were various formulations in the earlier cases, a discussion of public affairs, et cetera, and so the Court adopted in Lange government and political matters, but really the notion, I think, is that it is freedom of political discussion. That is your difficulty, is it not? It is very difficult for you to say that these advertisements are political discussion.
MR GAGELER: Yes and no. It depends what you mean by “political”. If you mean by “political” the sort of discussion that can influence voters at elections, it is for the most part, it is in the core operation of the regulation difficult for me to say that, yes. It is difficult perhaps to be playing with these labels because they perhaps get in the way, but if you use “political” as Justice Deane used “political”, that is, if you use “political” to encompass communication with and about the institutions of government, then you are in the area of the freedom.
McHUGH J: Sir Anthony Mason put it in ACTV when he spoke about freedom of communication, at least in relation to public affairs and political discussion. Now, you could not meet that test, could you?
MR GAGELER: I can in some aspects of the operation of this regulation, so it is overbroad in any event, but in relation to the core area that the regulation is meant to operate in, that is, preventing the communication between the lawyer and the client that would or might establish the lawyer/client relationship and go on to have the client then seek to vindicate legal rights ‑ ‑ ‑
McHUGH J: Over lunchtime you might have a look at the various expressions in ACTV and Nationwide and you will see a variety of expressions.
MR GAGELER: I accept that, yes.
McHUGH J: What Lange sought to do was to take one of those ‑ ‑ ‑
MR GAGELER: All I am trying to say is that what Lange was focused on was the constitutional defence that had been recognised in Theophanous and Stephens, and it was all about political communication. It was not concerned with the Ex parte Benson and Cunliffe line of country ‑ ‑ ‑
GUMMOW J: I know, Mr Gageler, but that line of country from the US cases readily attaches itself to Chapter III.
MR GAGELER: Yes.
GUMMOW J: But that is not enough for you because you have to get into the State judicial systems, and while there has been a flow‑over in the Lange realm of political discussion, it is not so easy to have a flow‑over in the non-federal jurisdiction area, and that is the problem, I think.
MR GAGELER: Your Honour, if I am in Chapter III I am doing pretty well.
GLEESON CJ: Is that a convenient time, Mr Gageler?
MR GAGELER: Yes it is, your Honour.
GLEESON CJ: We will adjourn until 2.15 pm.
AT 12.46 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.16 PM:
GLEESON CJ: Yes, Mr Gageler.
MR GAGELER: Your Honours, according to the division of time I have time, I think, to finish the freedom of communication point. I will leave the section 92 point entirely to Mr Basten. For the extraterritoriality point, we are content to rely on our written submissions. That leaves the section 109 issue potentially raised this morning. Your Honours, on reflection there may well be something in section 109. It may well be able to be said that the State law detracts from or impairs the operation at least of the Trade Practices Act, the Commonwealth Compensation Act and possibly the Superannuation Act. The difficulty is that that is not raised on the special case and section 78B notices have not been sent. What we would seek leave to do would be to approach Justice Gummow in Chambers to amend the special case, send out section 78B notices and deal with those 109 issues in writing, if that were convenient to the Court.
GLEESON CJ: Presumably, if correct, that argument would produce the consequence that the regulation in its application to such and such a situation is invalid.
MR GAGELER: Yes, and, indeed, in its application to some of the factual scenarios raised by the special case.
HAYNE J: This is special case by consent, is it?
MR GAGELER: Yes.
HAYNE J: Well, at some point the questions have to be identified by the parties.
MR GAGELER: That is why we seek to ‑ ‑ ‑
HAYNE J: At least for my own part, I do not embrace with any enthusiasm the notion that suddenly the questions are changed and, “Yes, we will put in a paper about it”.
MR GAGELER: We seek to do it in a formal and precise way. Your Honours, returning to the freedom of communication point, and I hope the major premise identified in Lange 189 CLR 520 at 567 is the relevant question.
GLEESON CJ: Mr Gageler, just before you go any further, would tomorrow morning be an appropriate time for you to approach Justice Gummow?
MR GAGELER: Yes, of course.
GLEESON CJ: At 9.30 tomorrow morning?
MR GAGELER: Yes. The question identified at the end of the first paragraph:
“What do the terms and structure of the Constitution prohibit, authorise or require?”
That was a question that was answered in Lange by reference to the sections identified a little further down the page, sections 7, 24, 64, 128 and what is described as “related sections”. Now, your Honours, when that same question is asked in relation to the terms and structure of Chapter III, in our submission, the answer is quite clear. Chapter III authorises the bringing before the courts exercising federal jurisdiction of controversies about existing legal rights, including common law rights, to be quelled in the exercise of judicial power. It requires, in our submission, that the people of the Commonwealth have the capacity, the ability, if you like the freedom, to ascertain their legal rights and to assert their legal rights to approach the courts ‑ ‑ ‑
GUMMOW J: Which court?
MR GAGELER: Courts exercising federal jurisdiction, to assert their legal rights. Co-relatively, in our submission, it requires that the same people, that is the litigants or potential litigants, have the capacity, the ability, the freedom to communicate, that is fundamentally to receive such information and assistance as may be practically necessary for that to occur. In our submission, what Chapter III implicitly prohibits is any law of the Commonwealth or of the State that unjustifiably, in the Lange sense, burdens that freedom.
In our respectful submission, it does not matter whether one approaches the question from the point of view of the institution or, conversely, from the point of view of the person approaching the institution. The answer is essentially the same, what one is concerned with is two sides of the one coin. One is concerned with the institution being able to deliver on the purpose for which the institution exists and that requires freedom of access which we have called freedom of communication.
Your Honours, what I described as two sides of the same coin is perhaps implicit in what Chief Justice Dixon said in the Hotchkiss Case to which I have already taken the Court. Can I also give your Honours much more directly in point a one-sentence quotation from Dietrich, 177 CLR 292 at page 302. This is in the joint judgment of Chief Justice Mason and your Honour Justice McHugh. Dietrich, of course, was a case that was concerned with the importance, not only of legal assistance, but of paid legal assistance to the functioning of the court. At page 302:
Lord Devlin stressed the importance of representation by counsel when he wrote: “Indeed, where there is no legal representation, and save in the exceptional case of the skilled litigant, the adversary system, whether or not it remains in theory, in practice breaks down.”
Your Honours, over lunch and partly in response to your Honour the Chief Justice’s question of what would happen if representation before Courts were abolished in respect of a particular subject matter, we located the decision of the Full Federal Court in Western Australia in Ward 76 FCR 492 where that question is addressed. It was addressed in the context of directions being made in a native title case that prevented lawyers and expert witnesses having access to gender specific evidence tendered by one of the parties. There is a very useful discussion that begins at page 496 and goes over to page 499. Can I just pick out one short passage at the bottom of page 497:
Were Parliament to pass a law outlawing legal representation before a Ch III court, it may well be that such a law would be held to be invalid as inconsistent with the exercise by Ch III courts of judicial power. Such representation may well be inherent in the obligation of courts to provide procedural fairness. But just as what is necessary to afford procedural fairness will depend upon the circumstances of the case, so, too, there may be circumstances where the right to a lawyer of one’s own choice may need to give way to the overall interests of justice –
and so on. Their Honours there really focus on the institutional operation of Chapter III courts and natural justice being an integral element of the way in which a Chapter III court must proceed, that is, to focus on the functioning of the institution, which we fully embrace.
As I sought to say a moment ago, we go beyond the functioning of the institutions of the courts also to embrace the very reason for which the courts exist for which those institutions are established by the Constitution which is the vindication of legal rights.
Your Honours, as Dietrich itself illustrates, a commercial element of a relationship is not in any way inconsistent with the functioning – it may, in fact, be critical to the proper functioning of a Chapter III court. So far as the commercial motive or intention of one or other party to a constitutionally protected communication is concerned, we say that it is simply beside the point. If the subject matter of a communication is constitutionally protected, then it does not forfeit that protection because of a commercial motivation, commercial intention or because there is some commercial content in it.
Nationwide News, after all, involved an article in a newspaper and the newspaper was clearly enough something that was sold as an article of commerce and, as I pointed out before, Australian Capital Television was about paid political advertisements. Your Honours, applied to the regulation at hand, we submit that it infringes either the freedom identified in Lange or the closely analogous freedom to which we have referred or, if you like, what is required by Chapter III of the Constitution.
McHUGH J: On your 109 point you would also be able to rely on section 78 of the Judiciary Act, would you not, because section 78 gives a party the right to be represented by a registered legal practitioner.
MR GAGELER: Yes. Yes, your Honour, and the reason is because in its practical operation – indeed, in its intended practical operation it burdens, in the sense of inhibits or impairs, the assertion of legal rights before a court and the communication and receipt of information advice necessary for that to occur.
Your Honours will have seen in our written submissions that we also point out that in its direct legal operation the regulation also has the effect of, in some instances, prohibiting the communication of information that is itself about legal rights and that is itself about existing legal proceedings. The most ready examples are the Maurice Blackburn Cashman letter to group members, to which I have taken your Honours, and the Maurice Blackburn Cashman website material.
We also make the point in our written submissions that the prohibition extends, at least in its incidental or collateral operation, to communications by lawyers on topics that can themselves readily be seen to be relevant to what I might, in a shorthand way, describe as federal electoral choice.
The accident compensation issue was described by the Premier in the ministerial statement to which I have taken your Honours as a complex national issue and there can be little doubt that in some of its operations this is a regulation that will have a tendency to stifle public statements by lawyers on that complex national issue. To take a very topical example, your Honours, a lawyer acting for a former James Hardie employee or a group of James Hardie employees would need to be very circumspect in what might be said publicly about that very public issue.
The explanatory statement to which I have taken your Honours contains a statement that there was no intention on the part of the New South Wales Government in promulgating this regulation to affect political debate, but there is no carve out or exception contained in regulation 140A for such communication and, given the number and specificity of the express exceptions, it is very difficult indeed, in our submission, for one to be implied.
Your Honours, before leaving Chapter III and going on to the second limb of the Lange test, can I draw your Honours’ attention to one thing we say in our written submissions. This is partly in response to a question from your Honour Justice Gummow this morning. Paragraph 31 on page 13 of our written submissions makes the point that if the protection extends to communications about rights in federal jurisdiction, it is very difficult to separate those communications from other what might be described as discrete State rights for a couple of reasons. What we point out is that it is generally impossible in advance of all potential issues being known to determine whether or not a matter will ultimately be in federal jurisdiction. We also point out that under section 73 of the Constitution this Court is the ultimate court of appeal even for matters in purely State jurisdictions.
KIRBY J: Could a sub-regulation be made, assuming that the flaw so far as Chapter III is concerned is interference with federal jurisdiction, that simply said, “Nothing in this regulation affects what might be done or said by a legal practitioner with respect to the exercise of the profession in federal courts”?
MR GAGELER: Well, possibly. What it would do would be to take the constitutional debate and to focus upon the “with respect to” element of your Honour’s formulation in any particular factual scenario, but there is no carve out at the moment.
Your Honours, the second limb of Lange is either invoked in its terms or, we would say, by analogy if there is a distinct and separate Chapter III freedom of communication. As restated by four members of the Court in Coleman v Power, we understand the second limb of Lange to come down to this. You have to find an end which is compatible with the constitutional system and you have to find that the law adopts means of achieving that end that are compatible with the constitutional system and then you have to look at the fit between the means and the end and ask whether the means are reasonably appropriate and adapted, to use one phraseology, or proportionate, to use another, to that end and that in so doing you give due weight to the importance of the constitutional freedom and to the degree to which it is impaired or sought to be impaired by the law and you will engage in a closer scrutiny, that is, you will require a closer fit between the means and the end, the more the law burdens the freedom and the more the law is aimed at or properly characterised as a law directed to communications within the freedom.
That we see as emerging really from the passages in Justice Deane’s judgements that we took the Court to this morning and we also see it as being brought out rather clearly in your Honour the Chief Justice’s recent judgment in Mulholland [2004] HCA 41 at paragraph 40.
Your Honours, the application for test involves in part a choice as to how one identifies the end that is to be achieved by a particular law, but here, taking the ultimate end as identified by the Premier of New South Wales, it, I think, can properly be identified as the maintenance of public liability insurance premiums within some acceptable limits. That obviously is a legitimate end in the sense that it is an end that is itself compatible with the constitutional system.
The central problem here, in our submission, is that the means chosen to achieve that end, that is the means of preventing the ascertainment and assertion of legal rights, is not a means that is consistent with the constitutional system. It is, in our submission, a vice and the central vice of this regulation and it cannot be turned into a virtue. But, in any event, in our submission, if it were necessary to get to the question of fit between means and ends, if one had the ultimate intention of reducing insurance premiums, and if one had the intention of doing that by stopping the making of a large number of small claims, this regulation is a blunt instrument.
KIRBY J: But how do we know that? That is a matter of economic assessment, is it not?
MR GAGELER: But partly, I suppose, that your Honour’s question raises who bears the onus of proof of the fit between means and end and your Honours will have seen from our written submissions that, with respect to the contrary view expressed by one of your Honours in a recent judgment, we seek to have your Honours endorse the American approach and that is that it is for the party seeking to defend the constitutional validity of the law to demonstrate the fit between the means and the end. What emerges very clearly from the material before the Court is that other more focused, less drastic means have really not been sufficiently explored.
I have drawn your Honours’ attention already to the criticism of the regulation made contemporaneously with its promulgation by the body established by the New South Wales government to advise. It said this is overbroad and it said that in volume 2, page 450.
HAYNE J: How is a party whom you say bears this burden of proof to set about that task in an area of this kind which is an area of, in part at least, economic regulation?
MR GAGELER: Can I perhaps demonstrate it rather than give your Honour a high level answer. It is demonstrated in the case of Florida Bar v Went For It, Inc 515 US 618. This is a useful case because it illustrates a very precise answer to your Honour’s question and also summarises the United States First Amendment learning as applied to lawyers advertising. What your Honours will see is that it was concerned with a very targeted rule of the Florida Bar that prohibited personal injury lawyers from sending direct mail solicitations to victims and their relatives for 30 days following an accident or disaster. That very targeted law was upheld, but your Honours might note only upheld 5:4. A summary of the United States position is contained in the opinion of the court delivered by Justice O’Connor at pages 622 and following. The test as applied to these cases is stated at the bottom of page 623 and over to the top of page 624. Your Honours will see the three related prongs stated at the top of page 624 that:
the government must assert a substantial interest . . . the government must demonstrate that the restriction on commercial speech directly and material advances that interest; and third, the regulation must be “narrowly drawn.’”
KIRBY J: That surely is founded in the words of the first amendment, “Congress shall make no law”. I mean it is ‑ ‑ ‑
HAYNE J: It will be the first First Amendment case which is founded directly in the words of the First Amendment if it is.
MR GAGELER: Well, the test is clearly enough a judicial construct seeking to give effect to the First Amendment and it is the test that is applied in what is described in the United States as commercial speech cases. So it extends beyond the precise sort of case with which we are concerned but ‑ ‑ ‑
GLEESON CJ: Mr Gageler, I understand the first step in your argument to be that the end of this regulation is not the control of ethical behaviour of lawyers but is the inhibition of the assertion – the end of the regulation is to inhibit the assertion of legal rights.
MR GAGELER: Correct.
GLEESON CJ: Would you mind telling me what this Court might regard as an appropriate means of inhibiting the assertion of legal rights?
MR GAGELER: None. In our submission, your Honours do not get to the question of the fit between means and ends because the ends are wrong. The ends are inconsistent with the constitutional system.
GLEESON CJ: It sounds rather odd for a judge to be scrutinising a law which has as its object to keep people from asserting their legal rights, and the judge working out what is an appropriate way to do that.
MR GAGELER: Yes. Your Honour, here I was attempting to accommodate my learned friends by accepting their higher level characterisation of the ends as being focused on the level of insurance premiums. I characterise the means as being preventing or inhibiting persons from asserting legal rights. Whether it is means or ends, the prevention of persons asserting legal rights is, in our submission, inconsistent with our constitutional structure, that is, it is not a legitimate end.
GUMMOW J: How do limitation laws fit into this?
KIRBY J: And notices before action, or special leave applications in this Court.
MR GAGELER: Your Honour, they are all matters of balancing – well, there are different categories. The limitation periods are concerned ‑ ‑ ‑
KIRBY J: You had better be careful about special leave applications.
MR GAGELER: Pardon, your Honour?
KIRBY J: We would not want to deprive you of all the fun.
MR GAGELER: Limitation periods are concerned generally these days with substantive legal rights.
GUMMOW J: There comes a point where what looks like a law changing the right can trespass into your area, does there?
MR GAGELER: Well, there may be but I do not need to explore that. All I say is if you give me a legal right ‑ ‑ ‑
GUMMOW J: Are we talking about rights of appeal, for example?
MR GAGELER: Yes.
GUMMOW J: Rights to what?
MR GAGELER: The right ‑ ‑ ‑
GLEESON CJ: Rights of appeal do not exist outside statute, do they?
MR GAGELER: They do in our Constitution. The right to appeal to this Court exists by virtue of the Constitution, but otherwise your Honour is absolutely right, yes. Your Honours, I can limit myself, I think ‑ ‑ ‑
HAYNE J: The notion of inhibition of assertion of legal rights which is the premise from which your argument proceeds is a statement of economic conclusion, is it not?
MR GAGELER: No.
HAYNE J: Why is there anything but an economic consequence identified when it is said at its core in this regulation a lawyer may not solicit work? It does not prevent the litigant suing. It does not prevent the litigant going to the lawyer. The economic consequence may be right, it may be wrong, that is perhaps for others to judge, but it does not much turn upon the characterisation of this conclusion asserted by the Premier in the speeches.
MR GAGELER: No. Your Honour, let me say this, that an economic consequence can be a practical consequence and that is enough to invoke the constitutional protection with which I am concerned, but I dispute the characterisation of the consequence as purely economic. It is not. It is intensely practical in the same way as an inability to obtain a lawyer to defend criminal proceedings was recognised as ‑ ‑ ‑
HAYNE J: Yes, but you have slid from one side of the record to the other, again. Inability to obtain a lawyer one thing, but this is inhibition on the lawyer.
MR GAGELER: Yes, but the practical effect of the inhibition on the lawyer to give a communication is to inhibit the receipt of the communication by the person to whom it is directed. It is the litigant, the potential litigant who loses out. Your Honours, that is the purpose. That is what it is all about. That is why this regulation was introduced.
CALLINAN J: Would not a correct characterisation be a law to prohibit or restrict incitement or encouragement to sue for particular remedies? Is that not a more accurate characterisation? That is what the communication does. It is either an incitement or an encouragement to people to sue for damages for personal injuries?
MR GAGELER: One could characterise it that way but ‑ ‑ ‑
KIRBY J: Incitement is a rather value loaded word.
MR GAGELER: Yes.
CALLINAN J: It depends on the nature of the advertisement. Some of it looks pretty much like an incitement to me, but anyway, accept encouragement.
MR GAGELER: Encouragement to pursue legal rights providing information to allow a person to choose to assert legal rights in court. That is what it is about. It is not the old common law barratry that is sought to be addressed in this law. It is the pursuit of legitimate legal claims.
KIRBY J: It is based ultimately on a view that courts are there for well‑heeled people who have plenty of ways of getting to their legal rights and legal advice, and if you are not in that class and you need to be given help and encouragement to know that you have them and that you can pursue them, you have no real help from the system, go away.
MR GAGELER: If your claim is between $20,000 and $100,000, then you should not be bringing it.
KIRBY J: $100,000 may not be much for some people in politics but it is an awful lot of money for many citizens of this country.
MR GAGELER: Your Honours, in Florida Bar – I will not go through the detail but your Honours will see that what the case turned upon was the ability of the Florida Bar to demonstrate quantitatively the effect of this very limited regulation. At page 632 your Honours will see a description of the test of fit – I will not read it but I ‑ ‑ ‑
GLEESON CJ: But this was a law that was aimed at professional ethics, was it not?
MR GAGELER: Yes, it was.
McHUGH J: But was it? I thought its principal purpose was to protect the personal privacy and tranquillity of citizens from crass commercial intrusion by lawyers during their time of personal grief.
MR GAGELER: These cases – and I have read about 30 of them – all tend to blur, but I think there two elements ‑ ‑ ‑
McHUGH J: I think it is at page 630.
MR GAGELER: Thank you, your Honour. Your Honour the Chief Justice, we say we do not get to this level of scrutiny because the end here is illegitimate, but I wanted to draw the Court’s attention to it.
GLEESON CJ: Well, the purpose was described at page 631. The purpose was said to be:
to forestall the outrage and irritation with the state-licensed legal profession –
that would result from practices of this kind.
MR GAGELER: Yes, so it was the invasion of privacy leading to an outrage. Although these cases have been traditionally dealt with under the commercial speech doctrine, I just wanted to draw your Honours’ attention to the dissenting judgment of Justice Kennedy where he said at about point 8 at page 636:
It would oversimplify to say that what we consider here is commercial speech and nothing more, for in many instances the banned communications may be vital to the recipients’ right to petition the courts for redress of grievances.
Your Honours, the only other American case to which I wanted to turn – and my time is virtually up – is Zauderer v Office of Disciplinary Counsel 471 US 626 (1985). The question identified at page 629, or the
first of the questions there identified, is whether a State may discipline an attorney for soliciting business by running newspaper advertisements containing non-deceptive illustrations and legal advice. The answer to that question was no and in the course of rejecting each of the justifications sought to be advanced for the validity of that law, the court said at page 642 the following:
Nor does the traditional justification for restraints on solicitation – the fear that lawyers will “stir up litigation” – justify the restriction imposed in this case. In evaluating this proffered justification, it is important to think about what it might mean to say that the State has an interest in preventing lawyers from stirring up litigation. It is possible to describe litigation itself as an evil that the State is entitled to combat: after all, litigation consumes vast quantities of social resources to produce little of tangible value but much discord and unpleasantness.
And there is quote from Judge Learned Hand, and the court goes on over the next page to say this:
But we cannot endorse the proposition that a lawsuit, as such, is an evil. Over the course of centuries, our society has settled upon civil litigation as a means for redressing grievances, resolving disputes, and vindicating rights when other means fail. There is no cause for consternation when a person who believes in good faith and on the basis of accurate information regarding his legal rights that he has suffered a legally cognizable injury turns to the courts for a remedy: “we cannot accept the notion that it is always better for a person to suffer a wrong silently than to redress it by legal action.” That our citizens have access to their civil courts is not an evil to be regretted; rather, it is an attribute of our system of justice in which we ought to take pride. The State is not entitled to interfere with that access by denying its citizens accurate information about their legal rights. Accordingly, it is not sufficient justification for the discipline imposed on the appellant that his truthful and nondeceptive advertising had a tendency to or did in fact encourage others to file lawsuits.
Just as that was not a sufficient justification, indeed not a justification that was consistent with the US constitutional structure, we say it is not a consideration or justification that is consistent with ours. If the Court pleases.
GLEESON CJ: Yes, thank you. Mr Basten.
MR BASTEN: Your Honours, may I start by dealing with the question that I referred to before of statutory construction. I do so for two purposes. First, of course, one needs to know what is sought to be done by the regulation in order to know what it is that the Court is being asked to find invalid. But, secondly, in our submission, it is necessary to look at the objective effect of the regulation in order to determine whether the regulation serves a particular governmental interest or not and the mechanism by which it does so. The fact that the purpose underlying the regulation may be based on an economic principle, false or correct, is beside the point so far as the argument we seek to put before this Court is concerned.
May I make one or two points in relation to the form of Part 14, additional to those made in our written submissions. In our written submissions at paragraph 2.7 we identify a number of matters in relation to which legal services might be provided which would appear to fall within the scope of the regulation, including legal services providing assistance with apprehended violence orders to women who fear domestic violence and advice to children in relation to sexual abuse and persons seeking to obtain relief from disability discrimination.
It is fairly clear, we would think, that all of those matters and the others we list, including the high school legal studies class question, fall within the prohibition on communication contained within regulation 139. There are two matters though to which we do not advert expressly there. Firstly, there is a lack of clarity as to whether some of the examples discussed today in relation to letters directed to individuals would be caught within this regulation. In other words, it may have actually failed to pick up direct solicitation.
The only paragraphs which appear to deal with it are those in the definition of “publish”, which involve the catchall phrase “other printed publication” at the end of paragraph (a) which we would think does not include a letter to an individual, be it a shareholder or a person who has been injured in some other way or suffers from some disease, but is to be read down by reference to the genus of publications there noted. Paragraph (f) talks about displaying something on a “document . . . gratuitously sent” – we avoid the possibility that the letter could be sent without a stamp so that the receiver has to pay – but displaying on a document is not apt to cover the question of the type of letter your Honour the Chief Justice raised, I think, “If you want to employ me, I will obtain vast sums of money for you”.
The second point we wanted to make was that there is a tendency to look only to the definition of advertisement in regulation 138 and to focus therein on the question of the availability of a practitioner to provide legal services. Focusing on that aspect of it, the Victorian Solicitor-General argues that what is really meant is a barrister promoting his or her own availability and it is said that that is confirmed by the reference in the exceptions in clause 140A(a) to the possibility of communicating with a person who is already a client of the barrister. This is said to be an ambiguity by the Commonwealth which does not come down on one side of the fence or the other.
With respect, we say that the Victorian submission is too narrow. When you speak of the use of a barrister or solicitor in the definition of “advertisement”, it is inapt to cover simply the person speaking of their own use. The second point I wanted to make in that regard is that in the exceptions in paragraph (e), the exception with respect “to the provision of legal aid” suggests that it is not limited to the advertising by an agency or a firm of the services available solely from that agency or firm.
Might I make one other point in relation to statutory construction in answer to your Honour Justice Kirby. When this regulation was introduced the form of the regulation-making power was section 38J which contained nothing equivalent to section 38JA – J in its then form provided, as your Honour noted, that:
A barrister or solicitor may advertise in any way the barrister or solicitor thinks fit ‑
The “subject to” did not appear. The qualification in subsection (2) related to the “kind” of advertisement that might be excluded, namely “false” or “misleading” advertisements, advertisements “in contravention of the Trade Practices Act” and, as it then stood, a reference to an advertisement dealt with by the regulation.
KIRBY J: And that would have to be read against the background of restraints by tradition, convention and ethics on legal professional advertisements.
MR BASTEN: We would say it would be dealt with, your Honour, against the withdrawal of those constraints. The change, which was made since the days when I started practice and your Honours were in practice, was the removal of the ethical constraints for two reasons. They are related. The first was the failure of the profession, in effect, to satisfy the governments and agencies of the day that their benefits outweighed the benefits of competition policies as reflected in the Trade Practices Act and later in Fair Trading Acts and, secondly, those restraints were seen as a hurdle to equal access to legal representation for disadvantaged groups and, hence, access to justice under the law.
KIRBY J: And that is where Professor Sackville’s report, that you annex, comes in.
MR BASTEN: That is so. That picks up the second, in particular, of those two matters. Your Honours, when one then ascertains what the intended operation of section 38J(2)(c) was at the relevant time it is clear that there was no express abandonment of that change and nor is the stirring up of litigation more generally something which is put in issue by the regulation for the reasons that we have already noted, namely, that it ‑ ‑ ‑
KIRBY J: As I recollect it, the old restraint was not so much based on trying to impedes people’s access, but the thought that professions were gentlemanly places, the belief that reputations should not depend on who can promote themselves best with lots of money and advertisements, but by word of mouth within the profession and by people getting to know who were best at this or that and that that was best left within the profession. That was the old view.
MR BASTEN: Yes, indeed.
KIRBY J: Then came this view that that is all very well, but a lot of people do not know where to start, and therefore Professor Sackville’s view was that we should move into a more competitive framework.
MR BASTEN: A framework in which lawyers are the people who are best placed to, and should be able to, inform those who do not have this information about where to go and how to obtain redress for wrongs they may have suffered or the benefit of statutory rights which they may be entitled to.
KIRBY J: Or are very frightened about the costs that they fear will attach, and therefore end up doing nothing or, if they do, doing it too late.
MR BASTEN: Indeed. Those are all matters none of which have been reversed by section 38J(1) or (2) in its then form and it may be at least questionable whether, in its form in which it was when the regulation was made, the statute supported this form of inhibition.
Your Honours, may I then turn to the question of the sorts of activity which are caught by the regulation. We do not wish to repeat what we have said in the written submissions. We do say that there are activities of bodies like legal centres which fall within the protected zone of political communication of the kind discussed this morning. What I wanted to do, though, was to go one stage further and invite attention to the fact that bodies which operate under federal law or in relation to federal law, especially those like the Disability Discrimination Legal Centres and the Welfare Rights Centres, which are parts of federal networks, will inevitably communicate across State borders not only to potential clients but to community groups and others.
These circumstances must involve intercourse among the States within the second limb of section 92. Furthermore, any form of Internet communications generally may do so. To prescribe the content of Internet communications may very well involve a section 109 point, because there is detailed regulation of Internet communications under the Broadcasting Services Act, but that is a point which we may leave to one side for present purposes.
The practical effect of the regulation, though, is to burden such communications by restricting their content. In that context, two questions must arise: first, whether the burden is justifiable, and, secondly, if it is not, whether the regulation can be restricted in its operation by reading down to bring it within power.
Your Honours, the question of what is reasonable regulation in this context is not helpfully discussed in the abstract. The context of section 92 is the creation of a unified entity, namely, Australia, where State boundaries should not form a barrier to the movement of goods, people or communication of ideas. That is a fundamental freedom, and it is against that background that one must identify the governmental interest being pursued.
Could I refer your Honours just briefly to the judgment of Chief Justice Mason in Street’s Case (1989) 168 CLR 461, in particular, at the top of page 485. In doing so, I seek to pick up by reference the discussion your Honours were taken to this morning in Quick & Garran, noting the congruence of purpose of sections 117 and 92. Starting at the third sentence on that page, his Honour said of section 117:
This section is one of the comparatively few provisions in the Constitution which was designed to enhance national unity and a real sense of national identity by eliminating disability or discrimination on account of residence in another State. In this respect the section should be seen as a counterpart to other provisions in the Constitution –
and he refers to section 92. He refers to Lord Wright:
Lord Wright regarded the section as analogous to s 92 and referred to it as providing a constitutional guarantee of equal rights of all residents in all States.
Your Honours, with respect, that background is important because if there is to be some reconciliation of the emphatic injunction, as your Honour Justice McHugh called it, in section 92 and another public policy which seeks to burden that emphatic injunction, then it is necessary to be clear that there is a balancing exercise to be undertaken. The Western Australian submissions attack our line of argument, although not directly, as resurrecting the pre‑Cole criterion of operation approach. With respect, that is not what we seek to do, nor what we in fact do.
The States want to suggest that this Court cannot engage in the balancing exercise which, with respect, is essential and it is essential for the reasons which were identified by your Honour the Chief Justice in Mulholland’s Case in citing R v Oakes in the Canadian Supreme Court. Mulholland is [2004] HCA 41. I will note if I may, without taking your Honours through it, the analysis of the exercise which is required to be undertaken, set out by Chief Justice Dixon and by your Honour the Chief Justice at paragraphs 34 and 35 of that judgment.
In that case, as I understood it, your Honour accepted the appropriateness where the test required it of a balancing exercise being undertaken by the Court which requires the ascertainment of the governmental interest which underlies the challenged law, consideration of the means by which that interest is sought to be advanced, and a judgment as to whether the interest and the means justify the restraint which is imposed on the constitutionally protected area of immunity.
Your Honours, before turning to the question of what is a reasonable justification in particular circumstances, may I note just one other aspect of the matter which Mr Gageler dealt with, and that is this. He sought to invoke as the primary basis for his complaint about the invalidity of this regulation a formulation of Lange which picked up an implied guarantee identified by reference to Chapter III of the Constitution. It would have been appropriate to answer the question that your Honour the Chief Justice asked by reference to Chapter III.
If one says can the States prohibit legal representation in personal injury cases the answer does not involve any question of the operation of a protected zone of political communication, but it clearly involves a question of Chapter III and the operation possibly of those provisions plus section 109 in combination with sections 55A and 78 of the Judiciary Act. So that the answer must be no in relation to any matter in federal jurisdiction, but we do not arrive ‑ ‑ ‑
KIRBY J: You are slipping from your argument on section 92.
MR BASTEN: I am. I am coming back to the justification. I do not have time to deal in detail with any of the aspects, but the justification which was discussed this morning was put in terms of the Lange test. What I want to say in relation to section 92 is that there is a similar test but it is not an identical test, and the reason is that one looks behind the nature of the implied or expressed constitutional protection in order to test the reasonableness of the law against that context.
I wanted to distinguish, therefore, the argument based on Lange, the argument based on Chapter III and the implied freedom of communication and the test that I am seeking to rely on, which is the second limb of section 92, namely, interstate intercourse. Can I just pursue that thought one stage further. The next question would be whether the State could lawfully have withdrawn personal injury cases from State courts, so that the cases would not come before State courts at all. Again, the answer must be that the State could not do that in relation to any matter in federal jurisdiction, even if it could set up a tribunal in which its own forms of constraints would apply.
The question is difficult to answer simply, because there comes a stage at which one wants to know precisely what the constraint which is being imposed is. If, as in this case, it appears to be a one‑sided constraint on information available to potential plaintiffs or possibly the withdrawal, in the hypothetical case, of representation from plaintiffs, and one was to impose that on a State court exercising State jurisdiction, then one would be on the verge of a Chapter III issue, because one can understand how a procedure which obliterated the normal sense of equality before the law by permitting representation only, say, to a defendant would contravene the Kable type operation of Chapter III.
GLEESON CJ: In the body that has been put in place to replace the Compensation Court of New South Wales, are parties entitled to legal representation?
MR BASTEN: I think they are. Whether it is with leave or not I am no longer sure, your Honour. I think might have been true of some of the other tribunals. The Consumer Claims Tribunal, in which one did not have representation, has been replaced by a tribunal where I think one has it with leave, but it is not necessarily legal representation. I am told you can, without leave, in the body to which your Honour is referring.
GLEESON CJ: Thank you.
KIRBY J: It is the Compensation Commission of New South Wales, again, I think.
MR BASTEN: I think so, your Honour, yes.
KIRBY J: The Workers Compensation Commission.
MR BASTEN: Yes. The next stage in the argument is that it would also be a breach of the protective zone which Chapter III must give rise to for the State or, indeed, the Commonwealth to pass any law interfering with communications between lawyers and Chapter III courts. Similarly, one would think, the same applies to communications between lawyers and clients in Chapter III courts. The question then becomes whether that zone of communication extends to those communications which are proposed to be undertaken between those who may be legal practitioners and the public at large, which may include people who seek to assert rights in Chapter III courts.
The critical step is the lawyer communicating his or her willingness to advise or assist with claims in federal jurisdiction and making known the usefulness of legal representation in relation to such rights. With respect, we would say that a different answer in that circumstance may depend upon whether it is the Commonwealth or the State which is seeking to intervene at that level. We would say that the State has no right under the Australian Constitution to interfere in any way with the operation of practitioners who are admitted in federal jurisdiction and seek to exercise rights in that jurisdiction. Your Honours, I think I have run out of our agreed time.
KIRBY J: One would have to be very careful about formulating such a principle, because, taken too far, it would restrain or prevent courts sending matters out to arbitration or alternative dispute resolution and barristers jumping up and down and saying, “We have a right to be here. You have just got to sit here and listen to us”.
MR BASTEN: Well, with respect, that may or may not be right, your Honour. Mediation is something which has been very hesitantly introduced as a compulsory form of excluding people from the courts.
GUMMOW J: Well, there is a big question about how all that applies in Chapter III.
MR BASTEN: Indeed, I was going to say that. I was saying at the State level in relation to ‑ ‑ ‑
GUMMOW J: A very big question, in my view.
MR BASTEN: Yes, indeed. So the specific circumstances of particular matters may very seriously raise their own questions. I do not wish to be evasive but ‑ ‑ ‑
KIRBY J: I understand that and the case that I mentioned earlier about abolition of rights in certain criminal cases is a case in point. Could that be done? I do not think it could. That really puts you then to the test of where and by what principle you draw the line.
MR BASTEN: It does, your Honour, in relation to ‑ ‑ ‑
KIRBY J: Because on the other hand, New Zealand has set up an accident compensation system and that in some people’s view, Professor Luntz, for example, is a whole lot better than the way we have gone about it for the last 30 years.
MR BASTEN: There is no ‑ ‑ ‑
KIRBY J: Better for litigants, better for citizens.
MR BASTEN: But let us assume for the purposes of our argument that the State simply abolished the right to compensation in relation to any injury where the damages were of a certain kind. There would be no difficulty, presumably assuming it had nothing to do with federal law, in the State doing that. But that is not what it sought to do. The State has left the rights to compensation in place – relevantly for present purposes even though it has modified them – but it has left them in place and then said to the members of the profession “You cannot tell people who may not know about their rights that they have these rights, or there are limitation periods”. The State can impose a limitation period on the exercise of a right. That merely makes it more important that people who may be subject to such periods be entitled to be told about the existence of those periods and who better, one would think, than those whose expertise is in that area to do it. I am not suggesting that there may not be more extreme restraints that the State could have imposed which would have had, as it were, a more dramatic result in terms of deprivation of rights. It does not mean that anything less than that is therefore valid.
Your Honours, we have dealt in the written submissions with what we say about the test for justification under section 92, the second limb, in part 6 of the written submissions. May I merely adopt what we say there. As with the rest of the submissions, I have no doubt your Honours have had an opportunity or will have an opportunity to read them. The only thing I wanted to say in conclusion was that there was a point at which – I think it may have been somebody who put to Mr Gageler – the point that the argument he was seeking to run might not end up only falling within Chapter III of the Constitution.
We say that when one combines the invalid operation of this regulation due to its overreach, an overreach which extends into the area of political communication, though that may not have been its purpose - its effect in relation to matters in federal jurisdiction which is undoubtedly within the sphere of its operation, its effect in relation to interstate intercourse in the manners we have identified in the written submissions and the implied protection for political communications – there is no possibility, with respect, of saving whatever may be left of the operation of the regulation as valid. If the Court pleases.
GLEESON CJ: Thank you, Mr Basten. Yes, Mr Solicitor for New South Wales.
MR SEXTON: If the Court pleases. Your Honours, I wanted to put our submissions under four main headings: firstly, whether the regulation burdens government or political discussion; secondly, the question of the implication that the plaintiffs claim is derived from Chapter III of the Constitution; thirdly, whether the regulation is reasonably appropriate and adapted to serve a legitimate end – although we say that your Honours will not get to that issue because of the first matter, and fourthly, the question of whether the regulation restricts interstate intercourse in contravention of section 92.
KIRBY J: The first three are the extended Lange principle and the second is the section 92 principle. So the first is the implication for the structure and text, the second is the specific, and we have, hovering in the background, another specific in section 109, but you cannot deal with that yet.
MR SEXTON: That is so, your Honour, subject to one short reference to section 109 that I will make in a slightly different context, but that is so. I am not sure that we have identified the section 109 question yet, but that will presumably happen in due course.
Your Honours, can I take the first of those issues, whether the regulation burdens government or political discussion. We say that it does not, for two reasons, and I will state them generally first. The first of those is that it is an advertisement, that is, in this case, an invitation to buy services – not goods, but services – and that form of communication is not protected by whatever the zone of protection is under the implication arising and identified in Lange.
KIRBY J: But there are advertisements and advertisements, are there not? It is commercial, but it is reaching out to inform people of rights that they may have and limitations that may exist and ways of getting at their rights, or it may be, in some cases.
MR SEXTON: Your Honour puts it in the context of rights, but it is still, in our submission, an invitation to purchase services. There may be other aspects to it as well, but we say that if it can be categorised in that way, it does not come within the zone of protection.
GUMMOW J: What do you say about construction to start off with? Are you at odds with the Solicitor for Victoria or ad idem?
MR SEXTON: Your Honour, there may be some difficult questions under the regulation as to whether it extends to particular advertisements, if one had those advertisements on the table ‑ ‑ ‑
HAYNE J: What about the fundamental point about does “a barrister or solicitor” mean the barrister or solicitor who is advertising or does it mean any?
MR SEXTON: Your Honour, I was going to say the Commonwealth says that there is an element of ambiguity there and ‑ ‑ ‑
GUMMOW J: But it is not their legislation.
MR SEXTON: No, that is so, your Honour, and that must be right, but the question is how it would be applied to a particular advertisement. Most of the advertisements, one would imagine, would refer to a particular barrister or solicitor. I am going to answer your Honour’s question. At the other end of the scale, there may be advertisements – it seems unlikely – that would encourage people to seek advice about their legal rights in a very general way that would not be caught by the regulation. As to an advertisement that is, in effect, a referral – which is perhaps the first of the advertisements in the schedule to the amended statement of claim – in other words, “If you contact this particular number, you will be referred to a particular lawyer”, we would say that that is certainly caught by the regulation.
The precise answer to Justice Hayne’s question is perhaps that there is not a precise answer, that it depends upon the advertisement. Your Honour, specifically, about the submissions by the State of Victoria, we would say that on balance it has a broad application and we would say that therefore it is not to be read narrowly.
GUMMOW J: Are you at odds with Mr Basten’s construction?
MR SEXTON: Which is, your Honour?
GUMMOW J: It is set out in great detail in the submissions. He says it can catch all sorts of things.
MR SEXTON: The examples that he gives in his submissions? I am sorry, your Honour.
GUMMOW J: Yes, paragraph 2.7.
MR SEXTON: Some of those, we would say, your Honour, it would not be applicable to. Some of those are, frankly, fanciful. It may extend to some of them, but, again, it would depend upon the terms of the particular advertisement.
GUMMOW J: Take 2.7(1), (2) and (3) on page 6 of Mr Basten’s submissions. I am not worried about high school legal studies at the moment, but (1), (2) and (3) seem in the real world.
MR SEXTON: Those advertisements are quite likely to mention what would be a personal injury within the terms of the regulation. It then depends on how they refer the legal services that might be provided, how you get access to those. As I understand my learned friend Mr Basten’s clients, that some of their advertising is simply directed to identifying the existence of legal rights. It is not tied into a particular lawyer or even lawyers in a more general sense who might provide the legal services to meet those rights. But we do not resile from the fact, your Honour, that if an advertisement is tied in to the provision of legal services, however that is done, that it would be caught by the regulation, because that is what the regulation is pretty clearly designed to do.
If your Honours look at page 217 of the case stated book which is volume 1, there is a copy of a document there from one of Mr Basten’s clients and at least a lot of that material, perhaps almost all of it, would not fall within the terms of the regulation as far as we can see. For example, the third paragraph says:
If you have been the victim of an act of violence we strongly recommend that you obtain legal advice as soon as possible, as there are time limits that may prevent you from taking action later if you delay.
HAYNE J: So is that caught or not caught?
MR SEXTON: We would say it is not caught, your Honour, that particular paragraph.
GUMMOW J: Why not?
MR SEXTON: Because it does not promote a lawyer – I will use that instead of barrister or solicitor – either a particular one or a larger more general group that is tied in to that particular paragraph. In other words, it does not lead you to a particular lawyer or any lawyer.
GUMMOW J: It leads you to some self-help book with legal advice in it.
MR SEXTON: As I say, your Honour, there could be some nice questions about that particular material, but that is inevitable perhaps, given the purpose of the legislation.
KIRBY J: It sounds to me like the chilling effect.
HAYNE J: And the nice questions are ordinarily better addressed by taking the words of the regulation and construing them, but there we are, Mr Solicitor.
MR SEXTON: Your Honour, the ambiguity that your Honour points to is the one concerning the barrister and solicitor under the legislation. My answer to your Honour is that if it is to lead to the provision of legal services, that is, if the advertisement is designed to that end, then it will be caught by the regulation, whether it refers to a particular practitioner, which we would say would normally be the case, or whether it is in more general terms.
GUMMOW J: Paragraph 7 of Mr Basten’s submissions detail some history, dealings with New South Wales authorities, including the Attorney‑General, which does not seem quite to square completely with what is now being put by the State on matters of construction.
MR SEXTON: I am sorry, I was looking at a later paragraph. I see, your Honour, yes. The question is not really answered precisely by that letter if your Honour ‑ ‑ ‑
GUMMOW J: These are criminal offences. People need to know where they stand. Everyone uses this word “regulation” because it comes out of the constitutional discourse and that is fine, but in fact the law has imposed requirements attended by criminal sanction. People need to be able to know where they stand.
MR SEXTON: Your Honour, there is inevitably, at the moment, in terms of the regulation, some room for argument about some publications that can be made, but we would say that the vast bulk of the publications are going to fit quite comfortably within the notion of an advertisement for a particular legal practitioner.
Your Honours, I think I identified the first reason why we said that the regulation did not burden government or political discussion, which was that it was an advertisement, that is, an invitation to purchase services. The second reason, in our submission, is that the subject of the regulation, that is, legal services in relation to personal injuries, could never – we would say never – be government or political discussion. In our submission, this is a case to be distinguished, for example, from Coleman in this Court recently, where the State of Queensland conceded in those proceedings that the words constituted political discussion. We would not necessarily ‑ ‑ ‑
GLEESON CJ: No, that was not the concession at all. The concession was that the legislation in question was capable of burdening political discussion. There was not any concession that to walk up to a policeman and say, “You, Joe Blow, are corrupt”, is political discussion.
MR SEXTON: Your Honour, my recollection is that it was not contested that those words were capable of constituting political discussion, but my friend from Queensland can say if that is ‑ ‑ ‑
GLEESON CJ: Tell me this. When in Dunbabin’s Case (1935) 53 CLR 434 the person who was prosecuted successfully for contempt of court said that High Court Judges were, in effect, a lot of useless layabouts, was that political discussion?
MR SEXTON: Arguably, in the post‑Lange world, your Honour, it could be political discussion. We would say that the words in Coleman were not in fact political discussion, but, as your Honour points out, what was conceded was that the law was capable, at least at its margins, perhaps, of burdening political discussion. We would say that that is not so in this case, that in fact, even at its periphery, it is not capable of having that consequence.
Now, your Honour, if I can come to the particular publications that are annexed to the statement of claim. My learned friend, Mr Gageler, has been to those. I do not want to go to them in detail, but just say something about them. Can I just say, perhaps, at the outset, that we have talked about some of the history of the regulation in this area in our submissions. My learned friend, Mr Gageler, said that it was a mid‑century aberration. In fact, in our submission, it would have been true right through the last century – except at the very end, of course, when some of these changes took place – that there was essentially a prohibition on advertising in general by legal practitioners.
That is perhaps a relevant factor as well when it comes to the argument about Chapter III of the Constitution, but, in our submission, it is not accurate to say that the prohibition on advertising, whatever its basis and whatever its reasoning, which may have changed, was something that was a brief aberration. In fact, it needs to be noted, in our submission, that the regulation only deals with advertising in relation to one area of the provision of legal services. Of course, otherwise, it is possible to advertise generally, subject to some provisions about false and misleading advertising, but otherwise the prohibition on advertising that had remained in force for a great deal of time has been, in all other areas, lifted, and remains lifted.
KIRBY J: Yes, but on one view that is a vice of the regulation because it is singling out particular people, including in many cases quite vulnerable people who are unaware of their legal rights, and saying “Well, you can advertise to large corporations and others about their rights but they’ve got plenty of means of getting that knowledge”. This is a regulation which specifically singles out and targets the effective access to the courts of ordinary citizens of modest means who otherwise do not know about their rights or are afraid that if they exercise them they will be far too costly.
MR SEXTON: In one area it does, your Honour, but that is ‑ ‑ ‑
KIRBY J: Well, in the area defined.
MR SEXTON: Yes, in the area defined.
KIRBY J: The definition is quite wide but it is really designed to focus on and keep out of effective exercise of their rights citizens of modest means.
MR SEXTON: Your Honour, what it is designed to do is to, for a variety of reasons, limit litigation in this particular area. In our submission, that is a judgment for the government of the day and for the Parliament, balancing the matters that your Honour raises, which are important matters, but it is a question of how the community generally would be best served by the balancing of these factors. We would say that subject to the Constitution they are matters for the government and for the Parliament who have to make those decisions.
Your Honours, in relation to the particular publications that are annexed to the statement of claim, so far as the print media advertisements are concerned, which are Annexures B and F, and they have been formally published by the second and third plaintiffs, and Annexure A is the advertisement proposed by the first plaintiff, which also makes reference to Mr Carr and to Senator Coonan, we would say that none of those have anything to do with the discussion of government or political matters, and we say that of the advertisement, the proposed advertisement at Annexure A, as well that it is not possible simply by putting in a contrived reference to the prohibition of advertising in a particular area to then bring the advertisement within the protection of the implication in the Constitution.
GLEESON CJ: Was there, by legislation, in the past a general prohibition on advertising by lawyers, or did it come in under the Legal Profession Act and regulations or rules made by the Law Society?
MR SEXTON: Your Honour, the first statutory prohibition was in 1940, was regulation 29 of the Solicitors (General) Regulations. It commenced on 15 April 1940. Prior to that it seems that the prohibition was based upon rulings made by the Law Society, and some of those are in that bundle of materials at page 99 of that volume of the second defendant’s materials. Your Honour will see some of the rulings there. For example, No 2 is a ruling in 1939 that it would be:
objectionable for a solicitor to insert a professional notice in the magazine of a Friendly Society, of which he is a member and to include in the notice the words “specialises in probate and estates”.
GLEESON CJ: My recollection is that in the days when advertising by solicitors was banned the ban was always subject to exceptions and country solicitors, for example, were always enabled to put advertisements provided they were not greater than a certain size in local newspapers.
MR SEXTON: I cannot answer your Honour whether that is so or not. I can only say that prior to 1940 the basis was rulings of the Law Society. Mr Leeming is going to see if he can pick anything up about that.
KIRBY J: But the basis lay far deeper than that. The basis were the conventions of a small gentlemanly profession which observed rules which were thought then to be appropriate, hence there would be some modifications perhaps in the country and particular disciplines, but it was just something that no one thought to do because it just was not quite proper.
MR SEXTON: Your Honour, we do not pretend that the basis for the regulation before the Court is the same as the basis for the earlier restrictions.
KIRBY J: But in such a society millions of Australians had no effective access to the law. That is what Justice Sackville and others have pointed – Professor Sackville, as he was – that this was all very well for the gentlemanly class but it was not all that good for people of modest means. I mean, “Don’t let us worry too much about people of modest means. They really don’t have any business being in courts. They are a nuisance. They make claims that are troublesome. They assert their legal rights. It is outrageous that they do so.”
MR SEXTON: Your Honour, can I say two things in response to that. The first is that access to legal services is much greater now, with or without advertisements, than it was when Professor Sackville did his reports, let alone at earlier periods.
KIRBY J: I hope so. Partly because of the changes.
MR SEXTON: The second point is that one area of litigation is dealt with by this regulation – only one – and it is dealt with, as your Honour has seen from some of the materials, for a particular economic and social reason. Now, that may be right or wrong in terms of the merits of the issue and whether there should not have been countervailing factors taken into account, but that is a decision that has been made by the government and the Parliament of New South Wales.
GLEESON CJ: The reason that the end, the object is to keep down insurance premiums, is that right?
MR SEXTON: Yes.
GLEESON CJ: How can you keep down insurance premiums except by inhibiting people from claiming their legal rights?
MR SEXTON: Your Honour says “legal rights”, which they are.
GLEESON CJ: I said “claiming”.
MR SEXTON: Yes. Your Honour, if the object is the reduction of litigation, of course, it would be necessary for some potential legal rights not to be exercised that may otherwise be exercised. That is quite true but, of course, those rights could be removed – putting federal jurisdiction to one side, those rights at the State level could be totally removed. In some areas they have been.
GLEESON CJ: They certainly have been substantially modified.
MR SEXTON: Yes.
KIRBY J: You say, very properly, this is all subject to the Constitution, but subject to the Constitution it is for the government and Parliament of the day to make these decisions, but when you see a regulation which is specifically targeted at poorer and vulnerable people for the assertion of their legal rights and even knowing that they have legal rights and what they can do about them, you start to wonder whether that squares with the Constitution of this country and particularly the Constitution respecting the integrated judicature of the country and the assumption of the rule of law which is the foundation of our Constitution.
MR SEXTON: Your Honour, I said of course it is subject to the Constitution but otherwise it is a social and an economic argument and we say the Constitution does not prevent a State government acting in that way. There may be arguments against it but it does not prevent it acting in that way. We would say really in a sense it is an argument about federalism that would never have been thought, in our submission, under the Constitution originally that a State government would not have those kinds of legislative powers.
KIRBY J: Yes, but from the very beginning from Quick & Garran, before the Federation they were writing about the fundamental assumption of access to the courts and we are talking here of practical access.
MR SEXTON: Your Honour, they were talking about federal rights and, of course, that may present a different question so far as the States are concerned; but in a general sense, in terms of ‑ ‑ ‑
KIRBY J: You have not distinguished between federal and State causes, you have not even attempted to. You just have to rely on an interpretation Act to do that and the Court doing a lot of work.
MR SEXTON: No, I will have to come to that, your Honour. But in a general sense, most of the litigation that is in question here one would imagine would be litigation in the State courts. There are, of course, some personal injury claims that can be brought in federal jurisdiction or in federal courts, particularly where the Commonwealth, an employer, under its own compensation legislation or, I think, the Defence Forces have an equivalent of that. There could be examples of diversity jurisdiction, but in general, the bulk of the advertisements, one would imagine, that are designed to be caught by the regulation ‑ ‑ ‑
KIRBY J: They are undiscriminating, the regulations are undiscriminating.
MR SEXTON: But, your Honour, on its ‑ ‑ ‑
KIRBY J: Lawyers – that is the genius of our Constitution, lawyers approach a case and they can determine whether there is a federal element or not and you do not really know until you have got into the case whether there is. The purpose of this is to get people to come to lawyers for that form of advice or to stop them from doing so.
MR SEXTON: Your Honour, really in our submission, that would be unlikely in most cases that would be the subject of this regulation.
KIRBY J: Well, you say that at this Bar table, with so many distinguished members of the legal profession, but I can tell you out there in Australia there are plenty of people who do not know their legal rights and are very afraid of exercising them, are very fearful of the costs and rightly so, and until they are given some help they do not get access to the courts or to the law. As a Justice of this Court, a regulation that stops people getting that is a matter of concern to me.
MR SEXTON: Your Honour, that is one important value and in this case according to the government and the Parliament there is a countervailing value concerning the availability and the cost of public liability insurance. Now, there is a range of materials - I will take your Honour briefly to some of them later but that is the ‑ ‑ ‑
KIRBY J: There is a very good book on this by Professor Wilfred Prest of Adelaide called Litigation which has quite a lot of analysis of this so‑called cost of personal injuries cases and I must admit that I am affected by what I read in that book, so if you want to say anything about it you had better have a look at it.
MR SEXTON: But there are decisions that have to be made everyday by governments, your Honour, where they trade off ‑ ‑ ‑
KIRBY J: But when they deny citizens access to the courts, we have a say in it. That is effectively what is going to happen.
MR SEXTON: Well, your Honour, of course, in relation to Federal Courts ‑ ‑ ‑
KIRBY J: This is the bottom end of town, the big end of town is well looked after as Chief Justice Latham said. The majorities are well looked after, it is the minorities and the vulnerable and the disadvantaged that are not looked after, they look to the courts.
MR SEXTON: All those people have to – some of those people at least want insurance as well, your Honour. They are difficult questions ‑ ‑ ‑
KIRBY J: In my day, these things were looked after very substantially by trade unions and by the representatives of the Returned Services people from the war. The latter is not now very effective and the trade unions are covering a smaller and smaller proportion of the population, so the market is said to be the solution, and now the market is cut off.
MR SEXTON: Your Honour, I imagine trade union members would not have any difficulty finding representation.
KIRBY J: Yes, that is 19 per cent of the population. There are a lot of people who are not trade union members, a lot of casual workers nowadays.
MR SEXTON: I will be coming back to that, your Honour, when I look at the question of “recently adapted”. Your Honour the Chief Justice asked about country practitioners. If your Honour looks at page 2 of those materials in that bundle, the 1940 regulation, your Honour will see there is some special provision in relation to country practitioners at the top of the page. Your Honours, I would refer to annexures B and F, the newspaper advertisements, and annexure A, the proposed newspaper advertisement by the first plaintiff ‑ ‑ ‑
CALLINAN J: Mr Solicitor, can I just ask you a question. Perhaps I should have asked Mr Gageler this, but there are, in effect, three forms of advertisement that have been put before the Court, I think. The questions of law raised in the case at page 243 go far beyond those particular communications. The question is asked whether the regulation is “invalid in whole or in part”. I am not too sure just what sort of – if a question is as broad as that, assuming we can answer such a broad question, then the examples provided are examples only. There may be all sorts of variations upon or extensions of those, additions to them. It is very difficult to ask a question in the abstract.
MR SEXTON: It is, your Honour, but ‑ ‑ ‑
CALLINAN J: It is not your doing, I understand, although you concurred in stating the case.
MR SEXTON: It has been agreed between the parties, but, your Honour, in ‑ ‑ ‑
GUMMOW J: It is the parties’ case.
MR SEXTON: Yes, it is, your Honour.
GUMMOW J: It is no one else’s. It is not a stated case.
MR SEXTON: No, your Honour. Justice Gummow is quite right. There is a series of questions that have been agreed on by the parties.
CALLINAN J: Why should we answer questions put so broadly and relating to matters in the abstract? What the question really seeks is an answer that in none of its conceivable reaches could the regulation be valid.
MR SEXTON: Well, your Honour, what happened in Coleman was that the Court found that in some respects the law in question was capable of burdening the freedom of communication, but obviously, in many respects ‑ ‑ ‑
CALLINAN J: That was directed to a particular case and particular words.
McHUGH J: The general rule is that if a law or a regulation has any invalid application – any invalid application – it is invalid unless it can be saved by an interpretation, a savings provision, or you can read it down or strike out with a blue pencil, and so on.
GUMMOW J: Validity is not a curate’s egg. It is valid or it is invalid. If it is invalid, it might be able to be read down in some way. You do not start in the other direction.
MR SEXTON: Yes. But I have already said, to answer Justice Callinan again, that unlike Coleman, we say here that there is not any capacity to burden the relevant freedom. Your Honour raises the question of the individual advertisements, I do not want to spend too much time on those because we say that they are only examples and they are examples of why there is no burden here and, really, some of the earlier questions asked by Justice Gummow and Justice Hayne about questions of construction, it really depends upon the terms of the particular advertisement, in our submission, and we have some here, but there could be many other examples, of course, and Mr Basten’s submissions set out not the terms of advertisements but some types of advertisements that might give rise to questions under the regulation.
Your Honours, annexures C and D, if I can just pass over these reasonably quickly, are the website publications. In our submission, they do not have anything to do with the discussion of government or political matters, but they do, of course, give rise to a section 92 question to which I will come at the end. They are the only publications, in our submission, that give rise to that question.
KIRBY J: You say that and that was my original impression, but having heard counsel for the applicant, I am not so sure. If you think in the Lange paradigm and Theophanous and all those other cases about the democratic process, then they are not governmental in that sense, I would agree with that submission. But if you think of government as being all branches of government, including the judicial power, then they are in a sense discussions about the reach of the judicial power and how you get into it. They are not the political power, they are not the legislative and the Executive, but they at least arguably are matters of information and discussion concerning the third branch of government.
MR SEXTON: We say they are not about a discussion of the third branch of government, your Honour, that they are an invitation to ‑ ‑ ‑
KIRBY J: It all depends if you have a patriarchal view of the law, you see. You are defending a very patriarchal view of the law. It is not a view I share. If you are informing people through a website of the way law covers them in certain employment situations, then that is a discussion of a governmental matter, and it is postulated by our Constitution, as Quick & Garran said, at least in federal causes.
MR SEXTON: The difficulty with that approach, your Honour, is that it poses no boundaries at all on the notion of political and government discussion. It is a first amendment ‑ ‑ ‑
KIRBY J: Yes, if you are talking about Bambi or something like that – and I am surprised that I can remember that – you are not talking about Chapter III of the Constitution of the Commonwealth of Australia.
MR SEXTON: I can see an argument about deer hunting, your Honour. But it really places very few limits on the zone of protection and ‑ ‑ ‑
KIRBY J: Plenty of them. I mean, most people – it will come as a terrible surprise to people in this room – never think about the law, they do not know about the law, they do not know about the courts and they do not care, but when they get into a corner and they have a problem and they have been damaged, it becomes of some importance to them and their families. Now we have the web, all sorts of people will go in and try and find out what their rights are. That is part of a free society and part of free discussion of governmental matters in the sense of the courts.
MR SEXTON: But it can be regulated by governments ‑ ‑ ‑
KIRBY J: That is the second stage.
MR SEXTON: ‑ ‑ ‑ unless the Constitution says that it cannot be, your Honour.
KIRBY J: That is the second stage of Lange, but we are talking at the moment of the first ‑ ‑ ‑
MR SEXTON: No, no, I am looking at the first stage, your Honour. If one goes to the relevant provisions of the Constitution in which the Lange principle is anchored, then it is obvious, we would say, that the subject matter of the publications that would fall within the subject matter of the regulation are not anywhere close to the zone of protection.
KIRBY J: That is because you are thinking of Lange type problems of the legislature, but what we have to do now is lift our sights to the wider application of Lange, to “governmental” in its more general sense.
MR SEXTON: But, your Honour, the principle in Lange – it is a unanimous decision of this Court – is limited to an implication arising out of particular sections of the Constitution concerning the election of the Federal Parliament.
KIRBY J: That was all that was before us, but the principle must also be good for all sections of the Constitution that are relevant to people’s rights under the Constitution.
MR SEXTON: But these are not rights under the Constitution, your Honour.
KIRBY J: Well, there are federal rights that this regulation strikes at, undiscriminatingly.
MR SEXTON: It does not stop anyone approaching the Federal Court or seeking a lawyer to represent them in a Federal Court ‑ ‑ ‑
KIRBY J: If you do not know, you do not go to lawyers, and, if you do not go to lawyers, you do not go to courts. Just go away – that is the theory behind this regulation. “Go away. Do not be bothered. If you have a claim up to $100,000 then it does not matter that you are not informed of your rights”.
MR SEXTON: But, your Honour, over the course of the last century, there have been huge volumes of litigation in this area. People have found lawyers. There has been no difficulty about it.
McHUGH J: One thing you do have to deal with at some stage, I think, is whether a State can legislate to impair the right of a litigant to receive offers of legal assistance in enforcing federal rights.
MR SEXTON: The short answer is, we say, that it can limit it in this way, your Honour. Certainly, there may be questions about – I would say there would have to be a very serious question, for example, that tried to prevent someone going to a lawyer, for example, in relation to some claim in federal jurisdiction, a claim before a Federal Court. I will not say there may be a question. It could not be done.
McHUGH J: But if you stripped some of the descriptions of these advertisements of their pejorative conceptions, they really are, for legal purposes, offers of legal assistance, are they not? For the purpose of legal analysis, that is what they are.
MR SEXTON: They are advertisements, your Honour.
McHUGH J: Yes, they are offers of legal assistance. So the question is can a State legislate to impair the right of a litigant to receive offers of legal assistance in matters concerned with the enforcement of federal rights? If it cannot, then your regulation is invalid unless it can be saved.
MR SEXTON: We would say that it can.
GUMMOW J: It might be hard to save it too.
MR SEXTON: I can come to that, your Honour.
GUMMOW J: No one ever wants to talk about separation ‑ ‑ ‑
MR SEXTON: Your Honour always does; I know that.
GUMMOW J: It is true in every case.
MR SEXTON: We will think of it, your Honour. We say that it can be done, that at some stage the question of what kind of regulation there can be of a person’s involvement in federal legal proceedings, that it cannot be traced back indefinitely. In other words, there cannot be an entitlement ‑ ‑ ‑
McHUGH J: But you have the Judiciary Act. Section 78 says a party to federal litigation is entitled to be represented by barristers and solicitors. Section 55A, is it, of the Judiciary Act enables people to be registered as practitioners in federal jurisdiction. Add that together with federal rights under the Trade Practices Act, Comcare legislation. Can the States legislate so as to derogate from the right of litigants to receive assistance to enforce those matters?
MR SEXTON: Your Honour, we would say that this is not any kind of interference with the relationship between practitioner and client. Once you have that relationship ‑ ‑ ‑
GUMMOW J: No, I know. It is just a situation that that will not come into existence.
MR SEXTON: Yes.
HAYNE J: Thus, what is the right to receive an offer of legal assistance? Do you say there is a right?
MR SEXTON: No. It is not a right, your Honour.
HAYNE J: Unless we are in 109 territory and 78 of the Judiciary Act and associated provisions is engaged, what, if any, implication is relevantly drawn from Chapter III?
MR SEXTON: We will have to address 109 when we see the argument, your Honour, but we would say at the moment that there is no, as far as we can see, inconsistency with any existing federal provision, including the ones in the Judiciary Act – certainly not direct inconsistency and we would say not cover the field inconsistency either.
HAYNE J: The right to receive offers of legal assistance appears to be a formulation differing in important respects from the formulated implication concerning representative government, which is a limitation on power perhaps.
MR SEXTON: Yes, your Honour.
McHUGH J: What I was putting to you is based on Chapter III and the Judiciary Act, not Lange.
MR SEXTON: Yes, I realise that, your Honour.
GUMMOW J: And on cases like Commissioner of Stamp Duties v Owens 88 CLR 168, James Robertson and all those cases back in the 1970s.
MR SEXTON: As your Honour has mentioned those cases – I was just about to come to section 79 in the light of what your Honour said earlier today. Can I just deal with the proposed letter to the group members in the Federal Court proceedings which is annexure E.
GLEESON CJ: What page is that?
MR SEXTON: Page 68, your Honour.
GLEESON CJ: Thank you.
MR SEXTON: As your Honours would have seen in our written submissions, we said that in our view – assuming that the letter is an advertisement about which there might be some argument, it certainly would be at the edge of the materials dealt with by the regulation – but, assuming for the purposes of argument that it is an advertisement, we said that we thought section 79 of the Judiciary Act would not pick it up either because Commonwealth law in the form of the Part IVA of the Federal Court Act otherwise provided or because along the lines of decisions like Owens that it was not applicable in these circumstances.
Now, we appreciate that section 79 is applicable to courts but we still say that there is a good argument that section 79 prevents the regulation being picked up even if the letter is an advertisement. If that is not right, there would also be an argument, however, arising out of section 109 just in this particular instance because of the provisions in Part IVA of the Federal Court Act which refer to notices and in our submission proceed on the basis that there can be a uniform notice sent to all members of the group no matter where they might be in Australia, including in New South Wales. So that it is something of a paradox that the plaintiffs are arguing that the regulation does catch this conduct of theirs ‑ ‑ ‑
KIRBY J: Well, they are fearful.
MR SEXTON: ‑ ‑ ‑ and we are saying that it does not.
KIRBY J: They do not want to be guilty of professional misconduct.
MR SEXTON: No, I appreciate that, your Honour.
KIRBY J: It is not an unreasonable concern on the part of a lawyer. It is a pretty drastic consequence and it is a deemed by the regulation to be professional misconduct – no ifs or buts, no arguments. Are you conceding that the regulation would not bite on the letter at page 68 and 69?
MR SEXTON: Well, ultimately it is a matter that a court might have to rule on but ‑ ‑ ‑
KIRBY J: No, you are propounding and supporting on behalf of the government of New South Wales the regulation.
MR SEXTON: Yes, your Honour, and I am expressing a view as counsel for the State of New South Wales that either by reason of section 79 of the Judiciary Act or section 109 of the Constitution that this letter would not be caught by the regulation.
KIRBY J: Well, it is caught by its terms, but you say the regulation would be read as not applicable in such a case.
MR SEXTON: That is right. I am not certain that it is an advertisement, your Honour, but arguably it is. If it is, we say that the regulation is not applied or is rendered by section 109 partially inoperative. Your Honour, I was about to move to a slightly different ‑ ‑ ‑
GLEESON CJ: Is that a convenient time then?
MR SEXTON: Yes.
GLEESON CJ: We will adjourn until 10.15 tomorrow morning.
AT 4.14 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 6 OCTOBER 2004
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