Brisbane TV Ltd & Ors v Criminal Justice Commission

[1996] HCATrans 359

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B49 of 1996

B e t w e e n -

BRISBANE TV LTD, CHRISTOPHER ADAMS and PETER MAHON

Applicants

and

CRIMINAL JUSTICE COMMISSION

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON MONDAY, 2 DECEMBER 1996, AT 10.56 AM

Copyright in the High Court of Australia

MR R.N. CHESTERMAN, QC:   May it please your Honours, I appear with my learned friend, MR J.C. SHEAHAN, for the applicants.  (instructed by Freehill Hollingdale & Page)

MR R.W. GOTTERSON, QC:   May it please your Honours, I appear with my learned friend, MR P.D.T. APPLEGARTH, for the respondent.  (instructed by W.G. Strange, Official Solicitor, Criminal Justice Commission)

GAUDRON J:   Yes, thank you.  Mr Chesterman.

MR CHESTERMAN:   Your Honours, in our submission, the application raises two points of importance.  The first is whether the decisions of the majority of Justices in this Court in Theophanous and Stephens to the effect that the freedom of communication which is implied in the Commonwealth Constitution extends to public discussion of political matters at the State level remain the law and to what extent. Those decisions have been impliedly overruled by the decision of this Court in McGinty v Western Australia.

GAUDRON J:   They are questions that are being agitated in other cases, are they not?

MR CHESTERMAN:   Your Honour, I understand that.  We would say, with respect, that as things stand from the judgment of the Court of Appeal, that we are precluded from arguing the constitutional freedom should the Court ‑ ‑ ‑

GAUDRON J:   I do not see why that should be.

KIRBY J:   You go back and have your trial and if you are dealt with, you have that point waiting in the wings.

MR CHESTERMAN: With respect, no, because the proceedings in the Supreme Court were a trial of the separate issue whether section 106(e) of the Criminal Justice Act was valid.

GAUDRON J:   You brought that on yourself though, did you not?  That was the course you pursued and, for the life of me, I do not see why that would preclude an appeal if, at the end of the day, it turns out that the implied limitation has some different operation from that that has, to this point, been perceived.

KIRBY J:   You can challenge the order made against you on that footing.

MR CHESTERMAN:   It is a res judicata, we would submit.  There has been a trial of that issue which has been determined against us so that we may not now contest that 106(e) is invalid.  The Court has said it is valid and there is an issue estoppel as to the reasoning.

GAUDRON J:   The Court has said it can be read down within whatever constitutional limit there is.  The Court has not purported, has it, to chart the outer limits of the limitation and, indeed, could not have purported to do that.

MR CHESTERMAN: What the majority did, in our respectful submission, is to say that section 106(e) is valid because there is no constitutional freedom.

KIRBY J:   Why would it be res judicata? I mean, all we are doing is refusing special leave. You have reserved the point. You go ahead, perhaps you are fined and then it is timely. It is presented at that time because there is a real order which is made against you based upon an assumption of the Constitution which, in your submission, is wrong and which may then be revealed to be right of wrong.

MR CHESTERMAN: We would submit that there has been a trial of the issue between the parties as to whether or not section 106(e) ‑ ‑ ‑

KIRBY J:   But it is an interlocutory trial.  There has been no final order made.  The final order is dismissal of the charge of contempt or the finding that you have been in contempt and fined for that reason.

MR CHESTERMAN:   But one of the issues in the proceedings is whether 106(e) is valid.  That issue was tried separately.

GAUDRON J:   Yes, but it has been held that it is valid on the basis that it can be read down to accommodate whatever constitutional limitation applies.  The outer limits of the constitutional limitation have not been determined.

MR CHESTERMAN:   With respect, no, your Honour.  What the majority did was to say that there is no constitutional freedom.  Their Honours seemed to have said that had there been a constitutional freedom of the kind identified and described in Theophanous and Stephens, then section 106(e) would have been invalid.

GAUDRON J:   Perhaps you had better take us to the page where you say that is what has happened.

MR CHESTERMAN: At 37 of the application book, may it please your Honours. To that point, the majority had discussed the Constitution implication, the Commonwealth Constitution implication and said that by reason of McGinty, it had been restricted to discussion of Commonwealth political matters and that section 9 of the Acts Interpretation Act was therefore appropriate to exclude from the scope of the section, the operation of the section, the discussion of Commonwealth political matters.  Their Honours then go on to discuss whether there is a similar implication from the State Constitution and, at the bottom of page 36, the last two lines, Justice McPherson, with whom Justice Byrne agreed, said:

To the extent that it is based on the Constitution -

that is the Commonwealth Constitution -

the challenge to s.106(e) therefore fails. As an alternative, the appellants advance the further proposition that an implication, corresponding to that in the Constitution, is to be found in the provisions of the Queensland State Constitution.

Can I jump to line 8?  His Honour said:

A short answer to that proposition in the present case might be that, even if it is correct, s.9 of the Acts Interpretation Act again imposes a limit on the scope or extent of s.106(e). In this instance, however, the recognition of some such limit on the operation of that legislative enactment would go far to deny it any operation at all. It therefore becomes necessary to examine the merits of the constitutional proposition advanced by the appellants.

GAUDRON J:   Do you contend that there is a State constitutional limitation of different ambit from that of any Commonwealth one?

MR CHESTERMAN: No. Our argument was that there was an identical implication. We lost that argument on the basis that there is no entrenchment of the constitutional provisions in Queensland, so the majority said, in relation to there being representative government and, therefore, the implication did not arise and that if it did, it had been overruled by 106(e) because the Constitution in Queensland, it was said, can be overruled or changed by a simple act of Parliament.

GAUDRON J:   You do not challenge that as wrong, do you?

MR CHESTERMAN:   Indeed we do, on two bases.  May I take the Court to the passage first, though?  At page 41 of the record book, their Honours said that, having discussed the State Constitution - I am reading from line 6:

The result is that, subject to the three exceptions mentioned, the Constitution of Queensland is capable of being, and in law is, validly amended on every occasion on which a later enactment is passed that is inconsistent with it. Section 106(e) is an example of that kind. If and in so far as the Queensland Constitution impliedly embodies a principle of representative government giving rise to a freedom to engage in debate of the kind contended for the appellants here, that principle and freedom have been impliedly amended or qualified by s.106(e) of the Criminal Justice Act 1989 in providing as it does that a person is guilty of contempt -

and so on.  We would submit the majority overlooked two things.  Principally that section 53 of the State Constitution Act in fact entrenches those provisions of the Constitution that requires there to be a legislative assembly and, secondly, we would advance an argument which is being advanced by the Commonwealth Attorney in Levy  and Lange that the Commonwealth Constitution itself requires that the States have constitutions that provide for representative government and, to that extent, we draw upon a judgment of your Honours in ACTV to that same effect.

KIRBY J:   Mr Chesterman, I would be very concerned if you were to lose your constitutional point.  In fact, that would be determinative for me, but I may be wrong, but my understanding of the principles are that if you have gone off and have a preliminary determination, all of that is adjunct to the final order, it is all interlocutory.  The final order is an order finding you guilty of contempt and punishing you for that and if you have reserved along the way your constitutional point that you could at that point take that point by which time one would expect this Court would have determined the Levy and Lange Cases.  Now, if you can convince me that you lose that opportunity then, as far as I am concerned, you must be given special leave.  I just do not think you do.

MR CHESTERMAN:   I understand the point. Your Honour, in our submission, we do lose the point, for this reason: what happened was, the proceedings commenced proceeded by contempt proceedings against us brought by the respondent, but then, in those proceedings, we issued a summons seeking a declaration that section 106(e) was invalid by ‑ ‑ ‑

KIRBY J:   Interlocutory.

MR CHESTERMAN:   Yes, and there is a judgment of the Court of Appeal ‑ ‑ ‑

GAUDRON J: But only to the effect that section 106(e) is not invalid. That is the only effect of that judgment. You look at the order ‑ ‑ ‑

MR CHESTERMAN:   Your Honour, we accept that, but that is the answer.

GAUDRON J:- - -and it says that section 106(e) can be read down. Now surely you have to concentrate on its inability to be read down, to succeed.

MR CHESTERMAN:   There are two answers to what your Honour puts to me. One is that there is a judgment on the summons we took out, seeking a declaration of the validity of section 106(e); and the second, we submit, your Honour, with great respect, that that is not what the majority did. The majority said, 106(e) is valid, not because it can be read down because of section 9, but because there is no constitutional freedom. Now there is an issue of estoppel ‑ ‑ ‑

GAUDRON J:   Well let us address the first question:  can it be read down, in your submission?

MR CHESTERMAN:   We submit not, and for the reasons this Court gave in Nationwide News Ltd v Wills. Can I explain it this way: the majority said, dealing with the ambit of the constitutional freedom of speech given by the Commonwealth Constitution, that that has been changed by McGinty, so that the implication now - that the freedom extends only to the discussion of Commonwealth matters. Section 106(e) is not concerned with that. To the extent that it might have an operation in the Commonwealth’s sphere, section 9 saves it. It is implicit in that reasoning, in our submission, that had the majority thought that the judgments of the majority in Stephens and Theophanous and Capital Television applied to the discussions of State political matters, section 9 would not have saved ‑ ‑ ‑

GAUDRON J:   I do not see that; I see nothing in the judgments to suggest that that is implicit, it is certainly not explicit, and there is no reason to think it would be implicit.

MR CHESTERMAN:   Your Honour, it must be so, with respect, for this reason, that in Nationwide itself the Court said that the section 82 cases were not helpful, and for this reason:  that section 82 says, an absolute freedom to engage interstate trade, a State enactment that infringed upon those activities, but also other activities, is read so as it does not affect those activities, but here, what is involved is the control of activities, subject to a qualification.  The qualification is not spelt out in the legislation in the subsection, the court would be left to chose for itself some appropriate qualification to make the restraint proportionate or appropriate, but the passage I took the Court to at page 37, I think it was, of the application book, shows the approach the majority took.  They said ‑ ‑ ‑

KIRBY J:   Is it your understanding that Mr Gotterson contends that you will lose forever your constitutional point if you fail in this application?

MR CHESTERMAN:   Your Honour, as I read our friends’ argument, they seem to be saying, that despite what the Court said, we could argue the constitutional defence when the matter comes on for trial.

McHUGH J:   But that must be right, must it not, Mr Chesterman?  There can be no issue estoppel or res judicata, except through a final judgment.  Supposing by some quirk of procedure you had a jury trial in this particular case and ultimately the jury disagreed, none of the findings of the Court of Appeal in these proceedings would constitute either res judicata or issue estoppel of the trial.

MR CHESTERMAN:   Your Honour, we would have thought, and would have submitted, with respect, that having taken out proceedings commenced by way of summons for a declaration as to the validity or invalidity of the subsection, the judgment of the Court saying it is valid ‑ ‑ ‑

KIRBY J:   But it is purely adjunctive.  It is interlocutory to the final order.

McHUGH J:   It is an interlocutory order until there is the final judgment.  In Lloyd v David Syme, the New South Wales Court of Appeal held that if you have a preliminary hearing of the Queensland equivalent - under the New South Wales equivalent, the separate question, you did not have to appeal against that; you could wait till the trial and you could, on the appeal, raise the issue in respect of the finding on the preliminary issue.  Now here you have appealed against it, but in principle it seems to me to be no difference.

KIRBY J:   And that principle is established by a passage in the judgment of Chief Justice Griffith in the very early years of this Court, that it is all adjunct, it is all interlocutory, and you save it up, and that is efficient.  It is stopping courts having these appeals at an interlocutory stage and dealing with them when they do not have to.

MR CHESTERMAN:   I must say, we are here because we regarded the appeal as being other than interlocutory, as it giving rise to an estoppel binding on us that the matter is now precluded against us ‑ ‑ ‑

KIRBY J:   But there has been no final order against you.  What you are trying to stave off is that awful day of a final order; order that you are guilty of contempt, fine, and you can still do that, at least as I am presently advised.

McHUGH J:   It seems to me the only argument that you have got going for you is that under the doctrine of Rogers, that criminal case from this Court, that it would be an abuse of process for you to run the same point again.  You might remember in that case the Court held about the confession, that to challenge the voluntariness of a confession would be an abuse of process.

KIRBY J:   But how could that be so, where you have come up here, you have gone to all the trouble, you have reserved the point, you have sought to have the opportunity, and we have said, go back and see what happens; you might be able to convince the judge not to do anything and go away quite happy.

MR CHESTERMAN:   It is a consolation prize, certainly, your Honour, but we ‑ ‑ ‑

KIRBY J:   Yes, and then if you are not happy, come back here; we are always here.

MR CHESTERMAN:   I am gratified to here it, your Honour.  We would submit, with respect, that the matter is capable of easier resolution, that the majority is wrong in the approach they took to the matter, and there is a risk, we would submit, with respect, that it is now precluded against us.  I have heard what your Honours have said to me, I do not wish to be argumentative, but that is the concern we have, that when the matter comes on for trial, we will be met by an argument that the point is determined against us.

Your Honours, in paragraph 19 of our friend’s argument, it seems to be at least left open that we will be defeated by an issue estoppel or res judicata at the trial.  My friend’s submission reads, five lines in:

If the Applicants are precluded at their trial from contending that section 106(e) is invalid, this is because:

(a) they chose, despite the Respondent’s opposition to this course, to seek a separate determination of the validity of section 106(e); and

(b) they failed to persuade the Court of Appeal that section 106(e) is invalid.

So our friends certainly do not rule out the potential of an argument along those lines.

KIRBY J:   One thing you might be able to argue is that until the constitutional point is clarified, you are at a disadvantage in conducting your defence at the trial, because you do not know the factual issues to which the evidence should be addressed.

MR CHESTERMAN:   Your Honour, that is certainly true.

KIRBY J:   But you could certainly try to reserve that and put all the factual matters relevant to public discussion and so on before the Court, and it would be a wise course, it would seem to me, for the Court to permit that.  Well, it is a very short point, really.  It might be worth getting Mr Gotterson to lay it on the line in terms of paragraph 19.

MR CHESTERMAN:   Thank you, your Honour.

GAUDRON J:   Yes, Mr Gotterson.

MR GOTTERSON:   If the Court pleases, by way of clarification, and in regard to paragraph 19, might I say that the respondent does not contend, and will not hereafter contend, if special leave is not granted, that the applicants are precluded from arguing the constitutional point.  That, with respect, should resolve that point.

McHUGH J:   At the trial, Mr Gotterson?

MR GOTTERSON:   Yes, at the trial, or, indeed, anywhere else.  The second point, if I may mention ‑ ‑ ‑

GAUDRON J:   Well, perhaps we could ask if that satisfies Mr Chesterman?  Does that not satisfy you entirely?

MR CHESTERMAN:   Might I ask our friends if the concession extends both to arguing the validity of the subsection and the reason behind it, that

is, the constitutional freedom?  We are here because both seem to be put against us.

GAUDRON J:   Yes, Mr Gotterson.

MR GOTTERSON:   The answer is yes to both of those.

GAUDRON J:   Well, it does seem in the circumstances of that acknowledgment there is nothing to be gained by pursuit of your special leave application, is there?

MR CHESTERMAN:   All I can say is that if leave were granted and the appellants’ submissions accepted, it would lead to a declaration that 106(e) is invalid and that would be an end to the proceedings.

KIRBY J:   But the reasons for this restraint on the part of courts is that you might go away and, for various reasons, the case might be disposed of in a way satisfactory to you, and then we are not troubled.  If you are not happy, you can come back.

MR CHESTERMAN:   Your Honour, I understand that and that our position, that is all I can say.

KIRBY J:   That seems a good reason for restraint.

GAUDRON J:   On the basis of the respondent’s acknowledgment that these matters may be raised at the trial and thereafter, there is no basis for this Court’s intervention in this matter.  Special leave is refused.

MR CHESTERMAN:   Your Honour, we had in our outline, although there is no reason why an order for costs should not be made if the application were unsuccessful, but in view of the way things have gone, with matters being brought to a head by our friend’s concession, I wonder if I might submit that there should, in these circumstances, be no order as to costs.

GAUDRON J:   What do you say to that, Mr Gotterson?

MR GOTTERSON:   If the Court pleases, we were not asked for the concession and, of course, that is but one ground on which the application today has failed.

KIRBY J:   Mr Chesterman could have got on the telephone and extracted these concessions from you long since and not troubled us here.

MR GOTTERSON:   If the Court pleases, we would ask for costs.

MR CHESTERMAN:   I cannot say any more than I have.

GAUDRON J:   The application is refused with costs.

AT 11.17 AM THE MATTER WAS CONCLUDED