Clubb v Edwards & Anor; Preston v Avery & Anor

[2018] HCATrans 210

[2018] HCATrans 210

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M46 of 2018

B e t w e e n -

KATHLEEN CLUBB

Appellant

and

ALYCE EDWARDS

First Respondent

ATTORNEY-GENERAL FOR VICTORIA

Second Respondent

Office of the Registry
  Hobart  No H2 of 2018

B e t w e e n -

JOHN GRAHAM PRESTON

Appellant

and

ELIZABETH AVERY

First Respondent

SCOTT WILKIE

Second Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 OCTOBER 2018, AT 10.00 AM

(Continued from 10/10/18)

Copyright in the High Court of Australia

____________________

KIEFEL CJ:   Yes, Mr Solicitor.

MR DONAGHUE:   Thank you, your Honour.  Your Honours, if I could turn immediately to the second of the five categories identified in our oral outline, which we have called the threshold question, the premise for the submissions that I am about to make is that Ms Clubb wishes to challenge the law under which she was convicted on the basis that it unduly burdens political communication, even though she did not herself engage in political communication of the constitutionally protected kind.

If I could emphasise at the outset this is not a submission that when assessing burden, applying Lange and McCloy, the burden should be assessed on the facts of the specific case.  We accept, as the Court has regularly held, including in Brown, that when assessing burden the appropriate approach is to assess the burden arising from the law generally and nothing I am about to say disputes that proposition.

Our point is a different point. It is about the circumstances in which a person is entitled to raise or perhaps, more accurately, where the Court should agree to decide the constitutional question which would then involve the assessment of the general burden that the law imposes.  So if a person is entitled to raise, and the Court agrees to decide that question, undoubtedly the Court then decides the validity of the law generally.  The question is when you get to that step.

Now, given the exchanges in argument yesterday, in order to develop this submission I propose to take the Court to four cases.  But before I do so, can I make the point that in our submission it is helpful in assessing the submissions I am going to make about those four cases to keep at the front of mind a distinction between two different kinds of judicial activity, the first being the construction of a statute and the second being the reading down of the statute.

As to construction, obviously the principles are well settled.  The Court looks at the terms, context, purpose of the Act and, equally obviously, having applied that ordinary approach, there will sometimes be constructional choices that need to be made in the interpretation of the Act.

If, in that kind of situation, one construction of the law would result in an invalid operation of the Act and the other construction of the law would not, then it is well settled that the Court should choose the interpretation that is consistent with the Constitution. That, we submit, is not reading down, but it is construction with an eye to the constitutional limit so that the constitutional limit informs the choice that is made, applying normal constructional principles.

But on that approach the construction that is adopted needs to be one that is available using ordinary constructional interpretive tools.  It has to appear sufficiently from the terms or context of the Act.  That is the approach, we submit, one sees taken by three Judges in the majority in Coleman v Power when their Honours looked at the words “insulting words” and construed those words in the context as only applying to a kind of insulting words that was likely to provoke retaliation. 

Their Honours arrived at that construction, in part, for example, on the basis that there was a prison term of six months attaching to the use of those words, so that was an indicator that Parliament was dealing with insulting words of a serious kind which justified that kind of limit.

When that approach is adopted, the construction of choice having been made, it then applies in every case where the statute applies.  So, that anyone prosecuted under the Coleman v Power statute, the prosecution would have needed to prove seriously, insulting words.  That construction applies whether or not one is near the boundary of constitutional power.  That is just what Parliament meant when it enacted the provision.

In our submission, Monis – which is the fourth of the cases to which I will come – is a case of that kind.  That, in our submission, is an exercise that is quite distinct from the reading‑down exercise that is required by section 15A of the Acts Interpretation Act and its State equivalence – here section 6 of the Interpretation of Legislation Act – because those provisions apply to a provision that, on its proper construction – so, after we have gone through the constructional exercise – is capable of applying, on its face, in both valid and invalid ways. 

Those provisions then require those general words to be given a distributive operation, meaning that they will apply to all cases within power and no cases outside power, but, according to the ordinary meaning of the word, whatever the construction that has been adopted.  So, there is not any change in meaning of the kind one might have when one makes the constructional choice, but there is an area where the general words are incapable of having effect and what the Acts Interpretation Act requires the Court to do – if the command is an imperative one – is to apply the provision in the valid areas but not the invalid ones.

The distinction is particularly important, in our submission, because whereas the constructional choice can only result in a conclusion that otherwise appears from the terms of the Act or its purpose of context, that limit does not apply to reading down.  In other words, one can read down by reference to the constitutional limit itself, even if the Act does not point you to that result.  And, perhaps, a clear example of that which is not one of the cases I will take your Honours to is Wilson. 

The appointment of Justice Mathews of the Federal Court as a person to conduct an inquiry under that Act, the Act authorised the Minister to appoint a person.  There was nothing in the Act that would have led the court to conclude that a person did not mean a judge, but a person could not mean a judge because of the operation of Chapter III and so the court says, a person does not mean judge.  Now, that is not construction, that is reading down, and one can do that because the limit is there even if you could not have arrived at that conclusion otherwise. 

Now, bearing that distinction in mind, if I could ask your Honours to turn first to Knight v Victoria which in the joint book of authorities is in volume 4 at tab 30. It is not yet reported in the Commonwealth Law Reports, it is (2017) 345 ALR 560. And if I could ask your Honours to go to page 567, paragraph [32]. This is a unanimous decision of the Court from last year, obviously. In paragraph [32], your Honours refer to the familiar statement in Lambert:

emphasised since, “[i]t is not the practice of the Court to investigate and decide constitutional questions unless there exists a state of facts which makes it necessary to decide such a question ‑

Then in the next paragraph:

That approach to the determination of constitutional questions means that it is ordinarily inappropriate for the Court to be drawn into a consideration of whether a legislative provision would have an invalid operation in circumstances which have not arisen and which may never arise if the provision, if invalid in that operation, would be severable ‑

Now, I accept and I think your Honour Justice Edelman made this point to my learned friend, the Solicitor for Victoria, yesterday, that the capacity for severance which there includes reading down, is a necessary ingredient of this process and the other three cases I am going to go to are supportive of the idea that severance is possible but if your Honours will assume in my favour for a moment that severance or reading down relevantly here is possible ‑ ‑ ‑

KIEFEL CJ:   But Knight is talking about a hypothetical case where a question may never arise and was not that the point, if you have a look at the facts in paragraph 31, where a judicial officer may never have been on the panel. 

MR DONAGHUE:   It is talking, in my submission, your Honour, about a situation that has not arisen.

KIEFEL CJ:   And which may never arise.

MR DONAGHUE:   Well, also that but, your Honour, if I can get to the end of paragraph 33, so this principle that is being discussed here applies:

even where the validity of the provision is challenged by a party sufficiently affected by the provision to have standing -

and obviously Ms Clubb has standing because she has been convicted under the provision she wants to challenge.  But even where the party has standing:

a party will not be permitted to “roam at large” but will be confined to advancing those grounds of challenge which bear on the validity of the provision in its application to that party.

So, our point is, because this is a submission that says, in its application to Ms Clubb, this statute, 185D, is not applying to a person who was engaged in constitutionally protected political communication. 

Now, it is true, as your Honour the Chief Justice puts to me, that there is a reference to “may not otherwise apply” and I accept that in both paragraphs 32 and 33 and the provisions I have read there are references to the practice of the Court and it being “ordinarily inappropriate.  I am not advancing this submission as an inflexible rule of law that mandates that the Court adopt a particular approach but we do say that the Court’s position has long been that if it is not necessary to decide a constitutional point, ordinarily it would not do so and ‑ ‑ ‑

KIEFEL CJ:   Are the implied freedom cases in a somewhat different category though?

MR DONAGHUE:   I submit not and that is what I am going to try to make good in relation to the other cases I am going to come to.  Just before I do that, your Honours, can I ask you also to note [34] and [35].  We have the words “which bear on the validity of the provision in its application to that party”.  So this is about when a person can raise the point, not changing the Lange analysis when you get there.

So then we have in [34] and [35] a discussion of severance, as it turns out, because in the Victorian case it is the same provision your Honours are looking at here.  Section 6 mirrors 15A and about four lines down you will see it provides the Act:

“shall be construed as operating to the full extent of, but so as not to exceed” legislative power ‑

And if your Honours go down to about line 10, it says that it applies in circumstances that:

would, but for [that] section, have been construed as being in excess of that power, it shall nevertheless be a valid provision to the extent to which it is not in excess of that power ‑

Then in the next sentence, two lines further down:

Of numerous cases which have provided examples of provisions expressed in general terms being construed distributively so as to operate validly to the extent that they did not . . . infringe constitutional limitations on . . . power ‑

That, we submit, is an expression that picks up relevantly from the authorities, we say Melbourne Corporation, section 92 of the Constitution and, according to Justice McHugh and Justice Gageler, in the two cases I am about to come to, the implied freedom, limitations on power, one can construe distributively recognising the limit. But the closest example in Knight was construed by reference to Chapter III where that was the limit and the example is given of Wilson.

Can I ask your Honours to note two footnotes.  In footnote 39, on the bottom of the previous page, your Honours will see, having stated the principle that I read, a footnote reference to BMA and also to Tajjour v New South Wales at 168 to 176.  That is the section of Justice Gageler’s judgment in Tajjour that I am about to take your Honours to.

The other footnote is section 43, where you will see a reference supporting the statement that there are many cases giving a distributive application to respect constitutional limits.  There is a footnote to Victoria v Commonwealth, the Industrial Relations Act Case, which I will also mention in a moment.  The Court seems to be accepting that body of authority.

In paragraph [35], the proposition is recognised that this is all subject to a contrary intent but the contrary intention is not found in the proposition that Parliament intended its law to apply to all of the things that fall within the scope of its law on its ordinary construction ‑ that is, the fact that Parliament here undoubtedly intended the prohibition to apply both to political speech about abortion and to non‑political speech about abortion, which we accept it clearly did, that is not a contrary intention for the purpose of section 6.

That is not the contrary intention for the purpose of section 6.  The contrary intention is an intention – as is said at the end of [35]:

that the provision should be wholly invalid if it could not apply to all of the persons, subject‑matters or circumstances to which it would otherwise have been construed as applicable –

That is, if it:

“was intended to operate fully and completely . . . or not at all”.

In our submission, it cannot be said, of 185D, that if it cannot capture protests about changing the law in relation to abortion, Parliament intended that it would also not apply to the street sidewalk counsellor.  The very object of protecting the safety, wellbeing and privacy of women is an object that Parliament can, in our submission, properly be understood of having pursued to the greatest extent it could possibly achieve it.  And, if there is a category of protest that it was not able to capture, we submit that does not provide a basis for concluding that Parliament intended the whole scheme to fail. 

NETTLE J:   That is reading down.

MR DONAGHUE:   This is reading down.

NETTLE J:   What you have just said is.

MR DONAGHUE:   Absolutely, your Honour.  This is reading down, precisely.  And, we submit, that section 6 requires your Honours to engage in reading down unless you consider that properly construed this Act was intended to comply completely or not at all.  So, if your Honours accept what I just said, that this scheme was not a scheme of that kind, then, in our submission, section 6 says you must read it down to apply validly in cases where it can properly operate.  We submit, that means that you must read it to apply in all cases to which it can validly apply.  But, because it is subject to a constitutional limit – the implied freedom – it would then not apply in cases of constitutionally protected speech.

NETTLE J:   Can I just ask you this?  Cannot Ms Clubb say, look, I was engaged in political communication which is proscribed by this legislation and, therefore, the legislation is invalid?  But, even if what I was engaged in was not political communication, the Act proscribes political communication and is, therefore, invalid and you cannot read it down.

MR DONAGHUE:   If she could make good that last proposition and you cannot read it down, then it would follow that she would be a person who was able to challenge the ‑ ‑ ‑

NETTLE J:   And the point being that she can legitimately put up the argument, even if I am not engaged in political communication.  This Act restricts it and you should so hold court and you should not hold that it can be read down.

MR DONAGHUE:   Your Honour, I accept that.  And that, we submit, is where one comes to the proposition that your Honour Justice Gageler advanced in Tajjour – which we understand to have been endorsed in Knight – that where the person who is bringing the case is a person of the kind your Honour Justice Nettle puts to me, it will sometimes be appropriate – often be appropriate – to decide as a threshold point, would it be severable?  Because if it would be severable, then you do not enter into the whole constitutional controversy – looking at burden and balancing, and all of those – at the suit of the person who does not have a proper interest in raising it because even if they were to succeed in all of their constitutional arguments, they would still lose because the provision would be severable.

GORDON J:   Is that because you seek to avoid the mischief of having someone to seek to raise the implied freedom in circumstances where they do not rely upon it?

MR DONAGHUE:   Yes, precisely.  It serves – as we understand what your Honour said in [32] and [33] of Knight – it serves the objective of preventing plaintiffs coming to this Court running constitutional points that do not, actually, affect their interests because they are people who are going to be governed validly by the law even if their constitutional argument is good.  Because at the end of the day, your Honours will say that was a nice constitutional argument, it might be right, but the law is still valid in its application to you, therefore, you lose.  So, the Court should not be systemically taken through the process of having plaintiffs being able to come and raise issues of that kind if they are going to lose at the severance point.

Again, I do not say it is an inflexible rule, but Knight and Tajjour, we submit systemically serve an important purpose in confining people, as is said in the last words of [33], to running cases that “bear on the validity” of the application of the Act in relation to them.

KIEFEL CJ:   If the key issue is severability on this, there may be cases where one can see that there would be an invalid operation and you can go straight to that question.  This is the logical question I think that was touched on yesterday.  But in the case of the implied freedom, do you not have to go through the entire operation and effect of the statute and whether or not it is invalid by other means?  You cannot proceed upon an unworked out basis before you can get to the question of severability.

MR DONAGHUE:   Well, your Honour, in my submission, to reach a conclusion of invalidity obviously one does need to go through the full worked out process.  But if one can say, even if I assume entirely in your favour – and of course we do not accept this – but even if it were to be assumed that the Victorian provision imposes an undue burden on political communication, in our submission, for the reasons I advanced yesterday afternoon, there is both political and non‑political communication on abortion, much communication concerning abortion will be of the non‑political variety and if the Act is such that it could be given a distributive operation the only people who are entitled to complain on implied freedom grounds and ask for the analysis that your Honour refers to are people who are engaging in political communication because the Act is going to validly apply to all of the sidewalk counsellors, however that controversy is resolved.

KIEFEL CJ:   How does that stand with your answer to Justice Nettle’s question?  Where does that leave Mrs Clubb here – that her conviction would stand, but someone else would not?  So it would be seen as operating as valid for her and invalid for others.

MR DONAGHUE:   Well, that is how it is, your Honour.  Precisely, because that is what section 6 requires:  it is valid for all of the non‑political ‑ ‑ ‑

EDELMAN J:   Except what you are asking the Court to do is not to answer that question.  You are asking the Court to address a question as to whether it is possible to sever the law but not then to answer the question that it is possible or it is not possible just to say in some universe it might be possible but, if it were possible, the facts of this case would fall within the permissible area, do not decide it.

MR DONAGHUE:   Well, that is what your Honours did in Knight.  Because in Knight if the scheme was not severable Mr Knight should have been able to say, these provisions are invalid because they entitle judges to form part of the panel.  The provision, undoubtedly, did entitle judges to form part of the panel, but Mr Knight’s panel did not include judges.

KIEFEL CJ:   That is a very different context, Knight.

MR DONAGHUE:   Well, it is just a different limitation, your Honour, but the point of principle was that Mr Knight wanted to say, even though there is no judge, I am affected by this provision and this provision is invalid for a reason that, while it has no application to me, will bring down the whole structure.

KIEFEL CJ:   Critically, as was said at paragraph [33], the position may never arise because judicial officers may never be on the panel.

MR DONAGHUE:   Your Honour, I accept that but, in my submission, the point that your Honour is – so that, for example, the footnote to that sentence is BMA and Tajjour – and, as the paragraph continues, it talks not about situations that might ever arise but about challenges advanced that bear on the validity of the provision in its application to the relevant party.

BELL J:   To come back to Justice Nettle’s point, Ms Clubb is facing conviction for an offence and she contends that the offence is not a valid enactment of the Parliament of Victoria.  Why is she not entitled to have that claim asserted rather than a shortcut which says, without the need to go through the analysis we conclude that the likelihood is this offence of which she stands convicted would ultimately pass muster for the limited class of case that includes her form of communication? 

MR DONAGHUE:   Your Honours, I am not suggesting she is not entitled to have the validity of the statute as it applies to her determined on a final basis. 

BELL J:   But when you say “as it applies to her determined on a final basis” you are embracing, as it were, a shortcut to a conclusion about severability. 

MR DONAGHUE:   Well, I am submitting that Ms Clubb can bring her challenge to 185D but that if your Honours decide on a final basis that this is a regime that can, consistently with section 6, be read subject to the implied freedom of political communication - so you finally decide that point, so it would be severable in the event that the provision was invalid, then the question of whether the provisions are valid or not makes no difference to Ms Clubb’s rights because whether valid or invalid the provision is valid in its operation to her.  So why would your Honours decide whether it is invalid in its operation to other people in circumstances where it makes no difference to her.  That is my point.

KIEFEL CJ:   The question that Ms Clubb’s proceedings raise is how the statute affects the freedom more generally.  I am not really sure, Mr Solicitor, that we are out of the territory of what you have accepted has been continuously said in the cases that it does not matter how it affects the individual in the case because the Court is concerned with the wider question of how the statute affects the freedom more generally.

MR DONAGHUE:   I started, or I did, your Honour, to try to draw that distinction because if – it is not exactly a standing point for the reasons identified in 33, but it is a bit like a standing point.

KIEFEL CJ:   It is close to. 

MR DONAGHUE:   It is relaxed so that that point your Honour puts to me, that one looks at the burden generally, does not mean that everybody has standing to challenge any ‑ ‑ ‑

KIEFEL CJ:   But sufficient to raise the question and when the question is raised it is answered and if that happens to provide – if that happens to provide that it is invalid in its operation in its practical effect ‑ ‑ ‑

MR DONAGHUE:   I agree with that, so that we have not taken this point in respect of Mr Preston although Tasmania advances the argument, but to take his example.  If Mr Preston ‑ ‑ ‑

KIEFEL CJ:   You reserved your position on that overnight. 

MR DONAGHUE:   Well, I did and I have decided not to try to change the position that we have taken.  If Mr Preston was engaged in political communication, then your Honours do not assess the burden of the Tasmanian law by looking at his particular protest on the street corner of Hobart where he engaged in his protest.  So you do not look at that.  You look at in the traditional McCloy way, the burden across Tasmania imposed by that law and the justification for it.

KIEFEL CJ:   As your second thoughts, your reservation about Mr Preston’s matter shows, there is going to be all sorts of areas of grey and difficult decisions to be made about what is political, what is not; whether Mrs Clubb was there with a non‑political message but the people next to her were not, this all suggests that the larger question is the one that should be addressed.

MR DONAGHUE:   In my submission, your Honours might ultimately conclude, notwithstanding the ordinary practice of the Court that there are particular circumstances surrounding this case including that there are two cases and that there are criminal convictions involved and importantly I think in the context of this case, that it would not be particularly difficult for a different protestor to engage in a protest of the kind that would properly enliven the question in the Court and so, in circumstances where people have assembled and argued, all of that might mean that you would depart from it.

But our point is the point of principle explained in Tajjour and Knight that if your Honours take that approach, in our submission, you should do so in recognition that because of those kinds of factors that I have outlined, this might be a case where you would depart from the point.  But the point is, as I said before, in our submission, an important systemic one because plaintiffs should not be encouraged to raise constitutional points that do not apply to their own circumstances and that is ‑ ‑ ‑

EDELMAN J:   Well, no, it is not that do not apply.  It is that might not apply because if the provision were invalid, then it would apply.

MR DONAGHUE:   Your Honour, I do say do not apply because, in my submission, your Honours should finally decide the severance point.  So, if you decide that in the event that the statute invalidly burdened political communication, it would nevertheless validly apply to non‑political communication.  If you finally decide that point, then you have finally decided that the law validly applies to Ms Clubb.  What I am then asking your Honours not to decide, having finally decided that point, is the then hypothetical question of whether in its application to other persons it would or would not be valid.  Now, can I take ‑ ‑ ‑

GORDON J:   The problem really arises here for two reasons, does it not?  First, that this is really one of the first cases – not one of the first but one of the first recent cases – where whether or not there has been a political communication as a building block has not been agreed, i.e. in Brown it was clear that there was a political communication.  Here there has been this question about Ms Clubb’s conduct ‑ first thing ‑ and second, of course, we have got this imprecision about what is political communication itself and so, in a sense, I know you ask us not to decide it but you have got difficulties in terms of starting up with the first question ‑ ‑ ‑

MR DONAGHUE:   Your Honour, I accept the first point and in relation to the second, in my submission, that would be a point that would suggest one could never adopt this approach in relation to the implied freedom because there ‑ ‑ ‑

GORDON J:   Well, that is why I raise it.  Is it because ‑ I know in your answer to the Chief Justice’s question you said, no, but does it mean that the implied freedom cases are in a different category?

MR DONAGHUE:   Well, in my submission, not and can I try to make that good.  I do not want to detain your Honours unduly on this but can I take your Honours to the next three cases which are all implied freedom cases on this point.  So, first Coleman v Power (2004) 220 CLR 1 which is in volume 4 at tab 24 and the relevant discussion ‑ it was only Justice McHugh who decided Coleman on this ground because the other three members of the majority decided on the constructional choice ground identified earlier rather than the reading down ground, whereas Justice McHugh dealt with the matter on reading down.

If your Honours go to page 55, paragraph 108, you will see that his Honour ‑ it is the second paragraph under the heading:

Consequences of invalidity

Severance

at the bottom of the previous page and there is a long quote from the Industrial Relations Act Case from which his Honour omitted the footnotes.  We have given your Honours, I hope ‑ we have not given you the whole case because it is a very long case, but we have given your Honours the extract of pages 502 and 503 of the report; 502 and over on to 503 is the part that his Honour is quoting in Coleman.

This passage is ‑ I think it is probably fair to say ‑ perhaps the most cited passage in this Court’s authorities in relation to the operation of section 15A of the Acts Interpretation Act and explaining how it works.  If I could just note a couple of the key points?  So, it is noted that there are two possible ways it might apply.  The first way in the first few lines of that paragraph is severance, then about four lines down it says:

It may also fall for application in relation to general words or expressions.

Citing Pidoto:

cannot be applied to effect a partial validation of a provision which extends beyond power unless ‘the operation of the remaining parts of the law remains unchanged’.

Then there is the contrary intention that the law:

operate fully and completely according to its terms, or not at all ‑

citing a number of cases.  Then in the next paragraph down – again, quoted by Justice McHugh – there is recognition that:

Where a law is expressed in general terms, it may be more difficult to determine whether Parliament intended that it should, nonetheless, have a partial operation.  And there is an additional difficulty if it ‘can be reduced to validity by adopting any one or more of a number of several possible limitations’.

Just pausing there, that is a difficulty that really arises in the decisions of the Court where the reading down issue arises because of the limitation on a head of power.  A good example is the example footnoted by the Court in the next paragraph at 281 where they refer to Strickland v Rocla Concrete Pipes.

So, that was a case involving a prohibition, I think, on restrictive agreements.  And, it could not be read down because it might have been able to be read down by reference to the trade and commerce power or it might have been able to be read down by reference to the corporations’ power.  To read it down by reference to trade or commerce, the Court would have confined its operation to interstate trade.  To read it down by reference to corporations, the Court would have confined its operation to trading and financial operations.  They would have been quite different operations of the provision with different scope and the Court did not know which of the two to choose.  That is the problem that their Honours are referring to in that paragraph.

That problem does not arise where the occasion for the reading down is not a head of power question but a constitutional limit. Because you do not need to have the Act tell you which reading down to adopt – the Constitution tells you which reading down to adopt so that you respect whatever the applicable constitutional limit is. And, the key to this paragraph – and it is the last sentence that Justice McHugh quotes in paragraph 108 – is a statement – having talked about reading down the general law:

Similarly, where a law is intended to operate in an area where Parliament’s legislative power is subject to a clear limitation, it can be read as subject to that limitation.

Now, the limitation – and this is the other reason we gave your Honours the extract – the limitation in issue in Victoria v The Commonwealth was the Melbourne Corporation doctrine.  And, in the next paragraph on 503 – and I will not read it out – their Honours take a general law purporting to subject the States to a regime governing terms and conditions of employment and say, that general law operates, except it does not operate in the cases where Melbourne Corp would be applied.  So, it does not operate to terms and conditions of people employed at a high level of government, for example.

So, it was clear that the Melbourne Corporation limit was a sufficiently precise clear limitation to engage that principle.  And, the Court did not try to adopt some construction of section 6 that would have produced that outcome.  It just said the section operates in its terms, subject to the limit.

What Justice McHugh did in Coleman was accept a submission put by the then Commonwealth and South Australian Solicitors‑General to the effect that it was possible to read the provision in issue in Coleman in that very way, subject to the implied freedom of communication. The submission is recorded at 109. And, his Honour’s acceptance of it is recorded at 110. It was not breached by the other members of the Court in that case because three members of the majority had concluded, as a matter of construction, that it was a “fighting words‑type” provision and was valid on that construction and the other members of the Court held it was valid. So, it was only Justice McHugh who needed to reach that point.

The next case where the same analysis was applied to the implied freedom is your Honour Justice Gageler’s judgment in Tajjour which is in volume 6 of the joint book at tab 45. It is (2014) 254 CLR 508 and the relevant part of the judgment commences at page 585 of the report, paragraph 168, under the heading “Severance”. This is the part of the judgment that was referred to with approval by the whole Court in Knight.  It is dealing with the Interpretation Act (NSW) which is in relevantly the same terms as section 6 of the Victorian Act.  At 169, your Honour Justice Gageler points out that, like 15A, section 31:

creates a statutory presumption the effect of which is that “the intention of the legislature is to be taken prima facie to be that the enactment should be divisible and that any parts found constitutionally unobjectionable should be carried into effect independently of those which fail”.

In other words, the parts that apply to non‑political communication apply even if the parts that apply to political communication do not.  At 171, your Honour notes that, while it is a rule of construction, that is:

no impediment . . . to read down a provision expressed in general words so as to have no application within an area in which legislative power is subject to a clear constitutional limitation –

citing the passage I just took the Court to in Victoria v The Commonwealth:

Such reading down can occur even if the constitutional limitation is incapable of precise definition –

again citing Victoria v The Commonwealth:

and even if an inquiry of fact is required to determine whether the constitutional limitation would or would not be engaged in so far as the law would apply to particular persons in particular circumstances.

That is my answer to your Honour Justice Gordon’s question ‑ the fact that at the boundary one might have a factual question, whether it is political or not, does not answer the analysis.  And the last sentence:

Where reading down can occur, the constructional imperative –

I emphasise that because it is a statutory command:

of a severance clause is that reading down must occur.

Then your Honour engages in an interesting, in my respectful submission, discussion of the section 92 cases which regularly involved the Court in engaging in this exact exercise of reading general provisions subject to section 92 not as a matter of construction but as subject to a clear constitutional limit.

What we are inviting your Honour to do, in our submission, is in no way radical.  It has a long history, particularly in that area of the law.  Then at the end of all of that, at 176 Justice Gageler raises that:

It may be appropriate in a future case to consider severance as a threshold question.  Where it is apparent that an impugned provision would be severable if and to the extent the provision might burden communication on political or governmental matter in a manner which infringes the . . . freedom, there is a real question as to whether arguments about whether or not such a burden is justified are appropriate to be entertained absent demonstration that some right, duty or liability in issue turns on the validity ‑

In effect, the Commonwealth took up that invitation in Knight in an admittedly different context.  We are taking it up again squarely in the implied freedom context here, but ‑ ‑ ‑

KIEFEL CJ:   Given the implied freedom context, it could not go without noticing that the other members of the Court in Tajjour were not of the same view.

MR DONAGHUE:   Your Honours, I think Chief Justice French did not adopt that analysis and it was not addressed by other members of the Court, is my understanding of the ‑ ‑ ‑

KIEFEL CJ:   Was it argued?

MR DONAGHUE:   I believe so, your Honour, yes.

KIEFEL CJ:   Well, then it was rejected.

MR DONAGHUE:   Can I come back to ‑ ‑ ‑

KIEFEL CJ:   I quickly add, I have not analysed what was put and the argument but it would seem from what you have said that impliedly it did not find favour with the majority of the Court.

MR DONAGHUE:   It may be that it was not – I would need to check.  It may be that it was not developed in quite the way that Justice Gageler developed it in the judgment.

KIEFEL CJ:   The balance of the Court did not seem to find that there was any difficulty in proceeding to determine the wider question.

MR DONAGHUE:   Sorry, your Honour.  I have finally caught up.  Most of your Honours held the provision was valid and so your Honours would not have reached ‑ did not reach the question.

KIEFEL CJ:   The Court did not feel itself constrained by any threshold question.

MR DONAGHUE:   But I do not believe anyone argued it as a threshold question.

KIEFEL CJ:   That is what I was asking you.

MR DONAGHUE:   Sorry.  I do not believe it was put as a threshold question.  I apologise, your Honour.  The severance point was argued; the threshold question point, as I understand it although I will have that checked, was not put.

KIEFEL CJ:   But it would have been obvious that it would have operated as a threshold question if there was severance.

MR DONAGHUE:   Your Honour, perhaps no more obvious that here where, in our submission, we submit it is an available approach.  It is reflected in cases going back a long way.  Justice Gageler drew on BMA v The Commonwealth, where Justice Dixon raised the same encouragement, not in an implied freedom context, but stopping people roaming across constitutional arguments and confining them to ones that properly arose on the facts.

So, in my submission, there is no authority against the threshold question point and Knight explicitly endorsing the sections in Justice Gageler’s judgment that I just went to and in the result, albeit not in an implied freedom context, is an authority in favour of it.

In my submission, the implied freedom context makes no difference because the implied freedom is, we submit, a clear limitation on legislative power and when a person who has engaged in political speech raises the question, this argument will have no effect on the McCloy, Brown, Lange analysis.  It will be exactly the same. 

KIEFEL CJ:   But if it was so clear really one would have expected a greater interest to be shown in Tajjour surely, by the rest of the Court.  But do not let me interrupt you.  You were showing us why it is not ‑ the implied freedom is not a different context.  So far you have two Judges.

MR DONAGHUE:   So far I have two Judges and the endorsement of one of them in ‑ ‑ ‑

KIEFEL CJ:   A different context.

MR DONAGHUE:   Well, your Honour, it would only be different – the implied freedom context would only be different if the position were that for some reason a person who has never suggested that they engaged in political communication was entitled to come to the Court and say “I want you to rule on this constitutional question that does not affect me”.

In my submission, there is no reason why the implied freedom should entitle a person to do that any more than section 92 or Melbourne Corporation, that the statutory structure that Parliament has enacted in the Interpretation Act, is they have said, we want you, the courts, to give effect to our provision to the full extent that our provision can validly operate and that is all we invite ‑ ‑ ‑

KIEFEL CJ:   Except perhaps, as is pointed out, as you said before, where what you are contending for applies where there is a clear limitation and inherent in the whole question about the implied freedom is this fraught question about what is a political communication.  Therein might be the point that differentiates the implied freedom context.

MR DONAGHUE:   We respectfully disagree with that, your Honour, for this reason, that the boundary of the Melbourne Corporation implication is also not a bright line and the Industrial Relations Case is authority for the proposition that one can apply this approach in it.  So we submit that the question is not is there a bright line or not, there is undoubtedly not a bright line in either of those contexts, but the fact that a line will need to be drawn in some cases is not a reason to decide constitutional questions that are obviously not near that line and that is our point.

EDELMAN J:   This submission really depends upon the proposition I think with which you started, which is that there is a fundamental distinction between determining the meaning of a provision and determining its application.  I think your assumption is that the process of reading down is not at all concerned with the meaning of the provision.  It is just concerned with its application.

MR DONAGHUE:   That is my proposition.

EDELMAN J:   Do you have any authority after the late 18th century for that proposition?

MR DONAGHUE:   Yes, your Honour.  In my submission, Victoria v Commonwealth is authority for that proposition. 

EDELMAN J:   That says that it is not concerned with the meaning of the provision itself.

MR DONAGHUE:   Indeed, it cannot be concerned with the meaning of the provision because the distributive operation is only available if there is no change to the meaning in the cases where the provision validly applies.  So one has – I hesitate to return your Honours to Venn diagrams – but if one has a statute that has an area of operation, part of which is within power and part of which is without and which would have a particular operation in both of those areas, the effect of section 15A is to say the part that is without – that circle of the Venn diagram is taken off the board and with the remaining circle this provision continues to operate exactly as it operated before.  So I am not resiling from what your Honour puts to me.  But I do not suggest you can get there as a matter of construction.  You get there because of the parliamentary command, the constructional imperative in 15A to do something you would not otherwise do.

EDELMAN J:   But you say that 15A is a provision that has nothing to do with construction?

MR DONAGHUE:   Well, yes.   It is to do with severance or with confining operation.

GAGELER J:   I think I referred in Tajjour to section 15A as a “constructional imperative”.

MR DONAGHUE:   Correct.

GAGELER J:   It may be a matter of how you use the word “construction”, but it is still a command, is it not?  I withdraw that - it is an indication of contingent legislative intention, is it not?

MR DONAGHUE:   Yes.

GAGELER J:   And giving effect to it is an exercise in construction.

MR DONAGHUE:   I am not sure I accept that last proposition.

EDELMAN J:   How could it possibly be otherwise?  How could you say that the Court is saying, “This legislation means X, but we are going to apply it in a circumstance Y that does not fall within that meaning”?  Or “We’re not going to apply it in circumstances where it falls within the meaning.”

MR DONAGHUE: That is the proposition, that last proposition. “We are not going to apply it in circumstances that fall within the meaning because” – that, in my submission, is the very thing that the second limb of 15A, so one has severance – we are not concerned with that, with reading down – the very thing that Parliament is saying is that, even though a certain operation falls within the meaning of these words, properly construed, because the Constitution stops the statute operating in that way that Parliament intended it to operate, is the question then that the whole provision falls or does the provision operate validly within the area of power so that the only part that falls is the part that cannot operate, and 15A says it is the latter?

EDELMAN J:   Somehow without the meaning changing.

MR DONAGHUE:   Well, the meaning does not change within the area that remains valid.  And, in my submission, your Honour, the Industrial RelationsAct Case and all the cases that have applied it, are authority for that proposition.

The last case I need to take your Honours to is Monis, which, in my submission, is not a reading down case, it is a construction case. It is in volume 6, tab 36 of the joint book of authorities, it is (2013) 249 CLR 92. And can I ask your Honours ‑ I am just dealing just with the joint judgment of Justice Crennan, Justice Kiefel as your Honour then was, and Justice Bell. Could I ask your Honours to start at page 196 at paragraph 292, right at the bottom of that page, where your Honours record the submission that you would go on to deal with. And the submission was:

by reference to Coleman v Power.  It is submitted that a majority there held that a law prohibiting the use of “insulting” words in a public place will only be valid in conformity with the test in Lange if the offence it creates refers to the use of insulting words which are intended, or likely, to cause a breach of the peace ‑

And that otherwise, if it was not construed in that way and was construed as meaning including injury to feelings it would be too wide and invalid as contrary to Lange.  And the attempt was made, recorded in 293, to run the same argument in Monis in relation to the word “offensive”.  It was saying:

“offensive” cannot, on its ordinary meaning, be read other than as affecting a person’s feelings.

And that it was therefore said it was contrary to Lange.  Now, in dealing with – your Honours then examined Coleman. And then at paragraph 301 at page 200, the second half of the paragraph referring to the true relevance of Coleman to the appeal, your Honours say:

It is what principles of construction were there engaged, and how they might be applied here –

so the principles of construction:

to s 471.12.  The central issue in the process of construction is whether the offence in s 471.12 can be read as restricted in its operation to refer only to communications of a higher degree of offensiveness, so that it can satisfy the Lange test.

So the question was, as your Honours identified the central issue, do we read “offensive” as “seriously or significantly offensive”, responding to the argument that was advanced.

Now, having dealt with the courts below, if your Honours go on to paragraph 327, which is on page 208, there is a heading “Further principles of construction”, and your Honours note:

There are stronger reasons than context for reading the word “offensive” in s 471.12 as confined to more seriously offensive communications.  It was recognised in early [decisions] . . . a sound rule of construction that legislation should, if possible, be interpreted so as not to make it inconsistent with the Constitution. 

That is the principle I opened my submissions this morning with:

There is a presumption that Parliament does not intend to pass beyond constitutional bounds . . . where [there are] different constructions are available –

adopt the one that leads to validity.  Now, it is true that your Honours then, in the next couple of paragraphs, refer to 15A and some of the reading down principles.  But, in my submission, when one gets to the decisive part of the judgment, your Honours are not relying on that – on those principles. 

So, if we go then to paragraph 333 on page 210, this is the key page that was the focus of attention yesterday.  And it is true that the heading there refers to reading down and the first sentence of 333 refers to reading down, but the discussion that follows makes it plain that the exercise that your Honours are engaged in, responsive to the submission that was advanced, is one of construction.  So, for example – and you see that, for example, in 334:

The process of construction, by reading down, is undertaken with an eye to the requirements of the second limb of Lange ‑

Now, your Honour Justice Nettle, I think mentioned that yesterday.  This undoubtedly was a process that was undertaken with an eye to Lange.  What that means, in our submission, is that one is looking at available constructions, having regard to text, context and purpose, and saying, with an eye to Lange, is one of those going to create a problem under Lange and the other one not? 

The answer was, again responsive to the argument, that one of them was problematic because if you read it as just meaning offensive in an unqualified form then that might not be a justified reading.  But the reading that is adopted at 336 and 337, expressly in terms of the construction of the provision, at 337, for example:

For the purposes of the construction of s 471.12 and the application of the Lange test, it would not seem necessary to go further –

than what might be generated by what is described there as “seriously offensive communication”.  So in 336 – I am sorry to be jumping around – but your Honours have identified: 

Words such as “very”, “seriously” or “significantly” offensive are apt to convey –

the relevant idea.  So that when in the key passage that was the focus of attention yesterday in 334 and 335 your Honours are referring to the fact that it is not a simple matter to excise political communication from the purview, that paragraph and the fact that one needs – the need for statutory context and direction where the section provides none, because the section was intended to apply, all of that discussion is directed towards whether it is possible, whether there is a constructional choice available in relation to this section to read it as not applying to political communication and your Honours say no. 

Your Honours then immediately say, having said no to that, but if there is a constructional choice to confine it to “very”, “seriously” or “significantly” offensive behaviour and because your Honours adopted that construction, the provision is valid.  Because the provision is valid, you never get to 15A‑type questions. 

So, in our submission, as I think Justice Gageler raised yesterday, 334 and 335 are not authority for the proposition that one cannot apply the Coleman, Tajjour, Industrial Relations Act, Knight approach to a law that properly construed is invalid.  It is not authority for that because properly construed, according to your Honour’s interpretation, the provision was valid and so one never reached that question.

Now, as I have foreshadowed, I think in answer to a question from your Honour the Chief Justice, while we submit that the effect of all of what I have said so far is that your Honours should conclude that 185D would, consistently with section 6 of the Interpretation Act, be read down so that it did not apply to political communication in the event that that was necessary to preserve its validity, we do not say that there is a constitutional mandate that requires your Honours to take that approach.

I will not take your Honours back to it, but the language in Knight is “a practice of the Court ordinarily inappropriate”.  So it would, we accept, be possible in the unusual circumstances of this case, which does include and I think this picks up something your Honour the Chief Justice put to me, that while perhaps in Knight it was not at all clear that a judge would ever comprise the panel, here your Honours might think, well, if you were to decline to decide the point here, someone who does engage in political communication might come back.

That might mean that the ordinary prudential considerations which underlie this submission do not govern this case and I do not say it is not open to your Honours to take that approach.  But we do submit that, for the reasons I have already identified, the ordinary practice of the Court would support the point we have taken and that if your Honours do take that approach it should be done in conscious departure from that idea.

Your Honours, I have spent a long time on that and in light of that I might be rather more brief than I had intended on the other submissions.  Can I complete the answer to your Honour the Chief Justice’s question about Tajjour.  I am helpfully informed by my learned juniors that in Tajjour, Mr Sexton for New South Wales did raise the possibility of reading down without resolving the second question as one option but then immediately went on to say that the Court should consider reading down only if the provision infringed the implied freedom at the next page.  So, while it was floated as a possibility it does not appear that anyone actually asked the Court to decide the point as a threshold issue.

KIEFEL CJ:   The way in which the argument was put was that it was necessary to go through the whole exercise before you determined whether to take that approach?

MR DONAGHUE:   I do not believe that it was put that it was necessary to go through it, your Honour, because, in my submission, it is necessary to go through the whole exercise when someone who is engaged in political communication asks you to.

KIEFEL CJ:   Yes.

MR DONAGHUE:   That is when it is necessary and not otherwise.

KIEFEL CJ:   I follow.

MR DONAGHUE:   Your Honours, point 3 in our outline is calibrating factors.  What we have in mind by that expression is that it has been clear, we submit since at least Lange, that where a law does impose an effective burden then the burden needs to be justified and that the level of justification depends on the extent and nature of the burden in question – the greater the burden the stronger the justification needs to be.  Your Honours said that in Brown in the passages we have cited in footnote 39 of our submissions.

In terms of working out what kinds of factors might mean that a law requires more or less justification that is the concept that we refer to as calibrating factors and we have borrowed that term from your Honour Justice Gageler in Brown and your Honour Justice Keane in Unions New South Wales used the same sort of language.

We submit that in ascertaining both the extent of the burden and therefore that for the higher the burden the greater the justification one could look at matters - a non‑exhaustive list, including the purpose of the law, whether the law discriminates, by which we submit the authorities mean does it specifically target political communication rather than non‑political communication or does it specifically target even more problematically a particular viewpoint, a particular side of the debate.  So, does it discriminate in those ways?  That is a calibrating factor that would point to a need for greater justification.

Going the other way, another calibrating factor is, is the law a time, place or manner restriction only, which would be a calibrating factor pointing, we submit, to a lesser justification and it is those two points really about ‑ ‑ ‑

KIEFEL CJ:   None of these are new factors.  They are all taken into account, I think you acknowledge, in considerations thus far in the cases as to the nature and extent of the burden.

MR DONAGHUE:   Absolutely.  I am not suggesting otherwise.

KIEFEL CJ:   So, is the direction we are heading, in your argument, that if there is a slight burden you do not need to get into the proportionality testing?

MR DONAGHUE:   I am not feeling quite that bold, your Honour.  My endpoint is really twofold.  One is to say that the discriminating aspect – calibrating factor – is not engaged here to require high justification because this is not a law that discriminates.  It does not discriminate against political communication for the reason that it includes both political and non‑political abortion‑related communication and it does not viewpoint discriminate because even though the law might, in practice, operate more on one side of the debate than on the other side of the debate, that is not enough to make the law discriminatory in that relevant sense. 

That is not a full answer to your Honour’s question but can I defer the full answer just for a moment because I will deal with this very briefly.  We get the targeting specifically directed idea for discrimination from ACTV and from Justice Keane’s judgment in Unions NSW as to the viewpoint. 

We say the clearest illustration of the fact that this is not a viewpoint discriminatory law is perhaps illustrated by considering the example of how 185D would apply to a case where there was a pro‑choice demonstration on one side of the road and an anti‑choice life demonstration on the other side of the road outside the clinic shouting at each other in messages relating to abortion communication.

That is, in fact, not a hypothetical example because if your Honours go to the core appeal book in Clubb and turn to page 86, there is an email that records – this was exhibited, I think, to Dr Allanson’s affidavit – that there was a protest outside the clinic in East Melbourne on Grand Final Day – which as your Honours may or may not know is near the MCG in Melbourne, the East Melbourne Clinic – so, on a day when there are likely to be a lot of people around:

Our security guard estimates around 25 pro choice on clinic side of Wellington Pde, and around 60 right to lifers standing opposite side of the road with a couple crossing the road to antagonise the prochoice group -

The sort of provocative idea your Honour Justice Keane was referring to yesterday.  So, in our submission, there cannot be any doubt that in that kind of situation, 185D captures protestors on both sides.  They are both engaging in behaviour that is destructive of the – likely to be destructive of the safety and wellbeing of persons trying to access the clinic. 

It does not viewpoint discriminate between them and that kind of analysis – I will not take your Honours to it but we have given your Honours a reference, I think, in the oral outline – is entirely consistent with the way that the American courts analyse this exact kind of thing.

So, while much of the US analysis is different, in the US context if a law is content based it is presumptively invalid and it has been argued in that context that an exclusion zone law is content based because it was said it discriminates against the pro‑choice protestors who wish to protest within the bubble zone, and the Supreme Court in Hill v Colorado said no.  It is not viewpoint discriminatory.

Our friends for the appellant have suggested that that decision was overtaken by the more recent decision of the US Supreme Court in McCullen.  In our submission, that is not so.  McCullen accepted at pages 12 and 13 that the protest did not become content based.  The law in that case was invalid because it was not narrowly tailored but it is a different part of the US analysis.  So the US case law would support the proposition this is not a content‑based law.

NETTLE J:   Yes.

MR REYNOLDS:   If the residue was small, well not necessarily small, one could gauge the importance of the particular provision by what was described I think by one of the other Justices as the increment.

NETTLE J:   Yes, I see.

MR REYNOLDS:   Now, that is what the submission is ‑ ‑ ‑

NETTLE J:   Hence, therefore, the purpose is not great, you would say.

MR REYNOLDS:   Exactly, so that is ‑ ‑ ‑

NETTLE J:   Thank you.

MR REYNOLDS:   I am sorry, your Honour, it was a couple of days ago and I would have to track back through exactly but that was the gist of it, as I recall.

NETTLE J:   Thank you.

MR REYNOLDS:   If your Honour pleases.

KIEFEL CJ:   The Court reserves it decision in this matter and adjourns to 9.45 am tomorrow.

AT 3.58 PM THE MATTER WAS ADJOURNED