APLA Ltd v Legal Services Commissioner (NSW)

The High Court of Australia considered a special case brought by APLA Ltd, Maurice Blackburn Cashman Pty Ltd, and Robert Leslie Whyburn (the plaintiffs) against the Legal Services Commissioner (NSW). The dispute concerned the validity of Part 14 of the *Legal Profession Regulation 2002* (NSW), which prohibited barristers and solicitors from advertising legal services related to personal injury claims. The plaintiffs argued that this prohibition infringed various constitutional protections.

The court was required to determine whether Part 14 of the Regulation was invalid on several grounds. These included whether it impermissibly infringed the implied freedom of political communication guaranteed by the Constitution, violated requirements of Chapter III of the Constitution and the principle of the rule of law, offended the freedom of interstate trade, commerce, and intercourse guaranteed by section 92, exceeded the legislative powers of New South Wales due to its extra-territorial operation, or was inconsistent with Commonwealth legislation, rendering it inoperative under section 109.

The High Court rejected the plaintiffs' arguments, finding that the Regulation did not impermissibly infringe the implied freedom of political communication or the requirements of Chapter III. The Court also found no contravention of section 92 of the Constitution, nor did it exceed the legislative powers of New South Wales. Crucially, the Court held that there was no inconsistency between the Regulation and the various Commonwealth Acts cited by the plaintiffs, and therefore section 109 did not operate to invalidate the Regulation. The Court emphasised that the motive behind the Regulation was irrelevant; its validity depended solely on whether it was inconsistent with federal law.

Consequently, the High Court answered "No" to the primary question of whether Part 14 of the Regulation was invalid in whole or in part. As a result, the subsequent questions regarding whether the Regulation validly prohibited specific advertisements and whether declaratory relief should be withheld did not arise.