Cunliffe & Anor v The Commonwealth of Australia

The parties in this matter were the Commonwealth of Australia, as the defendant, and unnamed plaintiffs, represented by Mr S.J. Gageler, appearing as counsel. The dispute concerned the form of a case stated, specifically regarding the admissibility of evidence and the precise framing of the legal question to be determined by the High Court.

The primary legal issues before the Court were whether the second reading speech for an amending Act could be admitted as evidence of the truth of its contents, and how the central question of the validity of a licensing regime should be formulated. The plaintiffs' counsel objected to the admission of the second reading speech for proof of its factual assertions, arguing that such matters were not pleaded and would require proper proof and findings of fact. He also opposed the defendant's proposed amendment to the question, which sought to limit the inquiry to the validity of the regime "in its application to the plaintiffs," viewing this as an attempt to pre-empt arguments about reading down or severance.

The Court was required to consider the principles governing the use of extrinsic materials, such as second reading speeches, in statutory interpretation and the determination of constitutional validity. The plaintiffs' counsel contended that while such speeches might be aids to construction, they were not evidence of the truth of their contents, particularly when those contents were not pleaded or established by evidence. The defendant's Solicitor-General sought to rely on a statement within the speech to demonstrate the government's contemporaneous view, suggesting it was relevant to the purpose of the legislation. The debate also touched upon the scope of constitutional challenges, with the plaintiffs' counsel indicating their argument would focus on the disproportionality of the licensing scheme as a whole, rather than solely on any supposed immunity of lawyers.