Gerner & Anor v The State of Victoria

[2020] HCATrans 181

[2020] HCATrans 181

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M104 of 2020

B e t w e e n -

JULIAN KINGSFORD GERNER

First Plaintiff

MORGAN’S SORRENTO VIC PTY LTD

Second Plaintiff

and

THE STATE OF VICTORIA

Defendant

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO MELBOURNE

ON FRIDAY, 6 NOVEMBER 2020, AT 9.49 AM

Copyright in the High Court of Australia

KIEFEL CJ:   In accordance with the current custom I will announce the appearances. 

For the plaintiffs, MR B.W. WALKER, SC with MR M.D. WYLES, QC, MR R.F.R. PINTOS‑LOPEZ and MS S.C.B. BRENKER.  (instructed by Hamilton Locke)

For the defendant, the Solicitor‑General for the State of Victoria, MS K.L. WALKER, QC with MR C.L. LENEHAN, SC, MS K.A. O’GORMAN, and MR T.M. WOOD.  (instructed by Victorian Government Solicitor’s Office)

For the interveners, the Attorney‑General for the State of Western Australia, MR J.A. THOMSON, SC, Solicitor‑General for the State of Western Australia, with MS J.J.E. PERERA.  (instructed by Solicitor‑General’s Office (WA))

For the Attorney‑General of the State of Queensland, MR G.A. THOMPSON, QC, Solicitor‑General of the State of Queensland, with MS F.J. NAGORCKA.  (instructed by Crown Law (Qld))

For the Attorney‑General for the State of South Australia, MR M.J. WAIT, SC, Solicitor‑General for the State of South Australia, with MS K.E. DENNIS.  (instructed by the Crown Solicitor’s Office (SA))

MR L.S. PEATTIE appears for the Attorney‑General for the Northern Territory.  (instructed by Solicitor for the Northern Territory)

MS S.K. KAY, with MR D.R. OSZ, appears on behalf of the Attorney‑General for the State of Tasmania.  I understand he is not seeking to make submissions.  (instructed by the Office of the Solicitor‑General (Tas))

KIEFEL CJ:   Yes, Mr Walker.

MR WALKER:   May it please the Court.  Could I take you immediately to the statute which is the focus of the argument?  Your Honours will, of course, recall that this is an argument that is severely truncated in relation to the whole of the matters that would be required to be demonstrated by us successfully to achieve the relief we seek in our originating process – that is, simply a first or early step in the reasoning, which is addressed by the argument today, namely, whether there is any such implied freedom of the kind in question.

It is against that background of the issues for today that I take your Honours, first, to page 267 of the book of authorities, starting in Part 10, Division 3 of the Public Health and Wellbeing Act 2008 (Vic) in section 198. The framework in which impugned provisions operate is set, importantly, by the declaration of a state of emergency by the Minister, subsection (1) of section 198, “on the advice of the Chief Health officer” and after relevant consultation. That is a state of emergency which is statutorily described as one:

arising out of any circumstances causing a serious risk to public health.

The ancillary provisions of section 198 include, as your Honours know ‑see subsections (7), (8), (8) (a), (8)(b) – what might be called safeguards, including by way of publication and parliamentary exposure with respect to, in particular, the duration of a state of emergency.  In those provisions ‑ I need not dwell on the details – there is in fact specific reference to the COVID‑19 pandemic in such a way as to indicate a legislative understanding of its what might be called greater seriousness than the general run of emergencies.

One then comes to section 199, under which when, as has happened, a state of emergency has been declared so as to exist.  The Chief Health Officer, that is, paragraph 199(1)(b), believes:

it is reasonably necessary to grant an authorisation under this section to eliminate or reduce a serious risk to public health.

Not today, maybe not ever, there may be reason to delve into what exactly it means to eliminate or reduce a serious risk to public health by the granting of an authorisation.  For present purposes, the meaning seems to derive from that which can follow from an authorisation, to which I now turn.  In section 199(2)(a) one sees that it produces a body of persons called “authorised officers”:

appointed by the Secretary to exercise any of the public health risk powers and emergency powers –

et cetera.  Relevantly, our concern is with so‑called emergency powers ‑ section 200.  In subsection (1), paragraphs (a), (b), (c) and (d) describe what the emergency powers are in terms that are not consistent in what might be described as the explicit statutory purpose, query, jurisdictional fact necessary in order for a decision to amount to the exercise of an emergency power.  Thus, in paragraph (a) the power is to:

detain any person or group of persons in the emergency area for the period –

which is described not to depend on the mere state of mind of a decision‑maker, but as follows, a:

period reasonably necessary to eliminate or reduce a serious risk to public health ‑

I do not need to dwell in great detail on that except to remind your Honours that considerable care is then taken in section 200, in particular subsections (2), (5), (6), (7) and (10), to provide for what might be understood to be familiar forms of care beforehand and accountability afterwards with respect to a power to detain.  Then we come to the one that is particularly in question in our case, which is section 200(1)(b), which is a power to:

restrict the movement of any person or group of persons within the emergency area –

and as your Honours see, neither by reference to the state of mind of any designated person, nor by reference to any state of affairs apt for a court to adjudicate, is that qualified at all.  Paragraph (c) is in a similar case.  Then paragraph (d), which refers to directions, that is decisions to control people, other than, among other things, paragraphs (b) and (c), reintroduces the notion of an officer, having a state of mind as to the jurisdictional facts, so:

any other direction that the authorised officer considers is reasonably necessary to protect public health.

I have already drawn to attention the fact that the balance of the section includes some safeguards with which we are not directly concerned in this stage of the proceeding, which no doubt would arise if the matter were to proceed any further beyond today’s argument.

One sees, in particular, that there is, with respect to the considerable power of detention in subsection (2), a requirement contemporaneously with the exercise of that power to have revealed what I called the reason why it is necessary to detain the person.  One sees other safeguards of a kind which render what might be called transparent the authorisation in question in section 201, upon which I do not need presently to dwell, and one sees in the scheme other aspects that might be regarded as safeguard or accountability aspects, thus, in section 204, which pivots the availability of compensation upon there being insufficient grounds for the giving of the authorisation to which I have already referred.  Section 203 lends criminal sanction by creating an offence with penalty with respect to the exercise of emergency powers. 

As your Honours know from the agreed facts and from the pleading for the purposes of this demurrer argument, the effect historically of the exercise of emergency powers was within what I will call for convenience the greater Melbourne area to restrict travel from it and into it and also within it, to restrict travel to a radius of five kilometres from a person’s residence.  It is immaterial for present purposes to address what might be called exceptions and qualifications. 

As your Honours know from the agreed facts concerning more recent developments, the proposal as understood, imminent, perhaps this very coming weekend, is to expand a radius and to remove the barrier.  In response to a request from the Court, we have addressed in writing what we wish to say concerning the sufficient concreteness of the issues, notwithstanding those recent developments, and M68, as your Honours know, is the authority providing for what, we respectfully submit, is the appropriate route to follow in that regard.  I do not wish to add anything to what we have written about that matter.

KIEFEL CJ:   Is the effect of your submissions, Mr Walker, that if the remaining restrictions are lifted on Sunday, that the ruling of the Court would be useful if such a regime is put in place again?

MR WALKER:   Yes.  That is the primary matter to which we have drawn attention.  That is by no means merely hypothetical in the sense that this is a regime which can be exercised with great rapidity with very drastic effect and which, as events have demonstrated, can be modified in its operation from time to time, both so as to become more stringent and so as to be allowed to become less stringent from time to time, all of which, of course, impinges on the exercise of the ordinary liberties – I stress “liberties” – of business and social activities, personal freedoms to which we refer, both in our pleading and in the argument concerning whether the case might be about to become moot.

KIEFEL CJ:   But if the restrictions are lifted and the Court is to rule after - the Court gives reasons and orders in favour of the plaintiffs thereafter; would they not be akin to an advisory opinion of what would be the legality of restrictions if they were imposed again in the future?

MR WALKER:   It is not an advisory opinion concerning the legality of what has happened.  That is the foundation upon which the utility of it, in relation to the future, ceases to be…..or advisory.  It will be a real and concrete ruling as to the legality of what has happened which, of course – as is intended in relation to rulings of this Court – will give guidance for the future in cases governed by the same circumstances.  That is the intent of this Court pronouncing, in a binding way, the legality of prior conduct. 

It is not only retrospective, it makes the law and allows people – including in government – to shape their conduct accordingly.  That is why we say it would not be only an advisory opinion.  It is advisory, if I may say so, only in the same way that everyone framing a statute or exercising an administrative discretion is well advised to conform their conduct to the law pronounced by this Court by reference to previous events.

GAGELER J:   Mr Walker, can I ask you a question about the nature of the implied freedom for which you contend?

MR WALKER:   Yes.

GAGELER J:   Is it a singular implied freedom of intrastate movement for any purpose and solely that, or is it a several implied freedom of intrastate movement for several purposes?

MR WALKER:   Because it is, on any view of it, a freedom amenable to qualification by permissible burden, and because the burden may be very considerable in many instances, to describe the freedom as what your Honour puts to me as a singular freedom would be in danger of simply deferring an understanding of its actual content and operation to what I will call the “proportionality” or “reasonable necessity” part of an argument.

That is why, in paragraph 3 of our written submissions in‑chief, we have suggested that a paraphrase of that for which we contend is the implication of a qualified freedom for the people in and of Australia to move within the State where they reside from time to time, a formula that eschews attaching substantively to the freedom, in a positive sense, that is, a descriptive sense, any purpose, accepting that the purpose of any purported burdening of that freedom will be front and centre of the scrutiny as to whether that burden is permissible or not.  That is what we intend to encapsulate by the epithet “qualified” before the word “freedom”.  Your Honours see, however ‑ ‑ ‑ 

KEANE J:   But your formulation does say “for any purpose”.

MR WALKER:   There is - yes, “for any reason”, I think I say.

KEANE J:   Yes, “for any reason”.

MR WALKER: Which amounts to “for any purpose”, of course. I suppose a flâneur would say that they are not promenading for any purpose, but by way of exercise of liberty. “Reason” or “purpose”, it does not make any difference for our purposes. I am still, I think, trying to answer Justice Gageler’s question. It follows that we do not suggest that there is an implication capable, in orthodox fashion, to be seen implied by the Constitution which would come with a banner as to a purpose or purposes defining and limiting the scope of that freedom.

GAGELER J:   So you are not going to get very far by cobbling together cases which have, from time to time, recognised freedom of movement as an incident of pursuit of some constitutionally permissible objective.

MR WALKER:   Well, “cobbling together” is a wounding description, but we do understand, with great respect ‑ ‑ ‑ 

GAGELER J:   “Stitching”, perhaps.

MR WALKER: We do understand, your Honours, that of course we draw attention to authorities which, by reason of the subject matter of those controversies, have necessarily raised a question such as, may this State law prevent a person travelling to Canberra to present his or her case in the High Court and, in our submission, they provide a ruling which will give an understanding sufficient for the purposes of determining that concrete controversy of something in, we would say, immanent, in the Constitution, that controls, by limiting legislative competence, State or Commonwealth legislation, or Territory legislation, which would impinge upon, and then come the numinous words, the freedom in question.

It would not be necessary and probably, with great respect, would not be the best form of judicial proceeding, to pronounce the outcome in such a case as foreclosed by there being a general freedom in which, of course, travel to present your case in the High Court is subsumed and therefore all one needs examine is the general freedom.

So, cobbling together, stitching together, yes, we say these are all indicia that there is something underlying the particular findings in those cases which has to do with the nature of the nation made by the text of the Constitution given meaning as a community of people, one people, by the structure of the Constitution and, in particular, involving in the broadest sense of that word communication, obviously a word sharing a root with the word “community”, and not accidentally, which communication of course can and does include physical transport as much as mental communion. 

It is for those reasons, in our submission, that there is a singular notion but it is required to be understood as to its nature by reference to all the particular and specific aspects of the text of the Constitution to which we refer.  I do not wish to dwell on them unless your Honours want me to go through the catalogue, but take the two cardinal ones from which one sees, obviously along with others, the freedom of political communication – 7 and 24; they stand as salient examples – not the only ones – of the fact that there is a community, a political community, for the one nation ‑ if I can use that expression nowadays ‑ of one people.

KIEFEL CJ:   Mr Walker, to what extent is your argument for constitutionally guaranteed freedom of movement for any reason founded upon the implied freedom of political communication?

MR WALKER:   As your Honours have seen I hope from our written argument, we derive support from it.  We do not place the implied freedom with respect to political communication as what I might call a basis upon which by way of superstructure the freedom for which we contend is to be spelled out.  Historically in the work of this Court, it got there first.  We say they both spring – and there may be others yet to be discerned in litigation yet to happen – they both spring from the fact that Federation is not of jealously independent squabbling confederated independent polities, but of a different kind of process which produced, as was insisted in the covering clauses, particularly 3, one people, one nation, where there had been several peoples and several colonies.  In our submission, it is logically and practically necessary in order for a Constitution which has that plan to ensure that legislation at any level in the polity does not cut across those indispensable elements, those, as Sir Samuel Griffith would put it, elementary matters to which I will come.

It is for those reasons that in answer to the Chief Justice’s question, we do not use the established freedom of political communication as, as it were, a premise to produce the conclusion of the freedom for which we contend, we simply say it is produced by the same process of reasoning but the attention turns, in this case, from speech writing, audio and visual, and perhaps now bearing in mind what I will call the subset of protest, presence, that is, attendance, it now turns to something which, in our submission, is integral to all of those particular modes of communication and that is the capacity to travel.

Now, it is important, of course, though we draw on the one political community concept with representative democracy, thus the need for communication, though we draw on that for our argument we certainly go further and say ‑ and it follows that the freedom to move wherever one wishes to move for whatever reason is part and parcel of the being of one people, that is, in order to be a one people you must be able to mingle ‑ it is the essence of being a community or society or nation that you can know each other. 

GAGELER J:   So, any road toll, any driver’s licensing regime will have to measure up against this implied freedom.

MR WALKER:   Yes, absolutely, and all would beyond peradventure of doubt.  Now, argument from possibility of abuse is not something we wish to embrace, but briefly in answer to Justice Gageler, one could well imagine why it would not only be section 92 when border crossing was in question, but it would also be that freedom for which we contend that would be a very powerful reason, for example, to dispute the punitively or aversive imposition, perhaps in discriminatory fashion, on intrastate travel by a disapproved group and, if any government were ever so inclined, there is no sign of it at present, thank goodness, then of course it would have to pass muster in that fashion. 

GORDON J:   Mr Walker, does that extend also to 51(ix) in relation to quarantine?

MR WALKER:   Very much so, your Honour.  One of the historically indispensable aspects of an understanding of quarantine, extending from a period far anterior to what would now be called the germ theory of disease, or was until recently, is its precautionary aspect.  One of the ineradicable corollaries of the precautionary aspect is that degrees of caution, sensations of fear, can inform expedients adopted by the person in charge of the precautionary measures, which may vary massively according to what I will call subjective or circumstantial perceptions. 

It is for those reasons that there is, we submit, a simple question:  could the quarantine power possibly be one which can be subject to no limit of what might be called common sense, social imperatives and the like.  One could prevent, I suppose, nearly all infectious diseases by walling us all up in cells with modern electronic communication only.  No one, in our submission, would suggest that it would suffice simply to allow the next election to get rid of the Parliament that did that, for the reasons Justice Gummow has pointed out in a passage we have quoted in our written submissions.

The fact is, in our submission, that there is a limit.  It is a limit easily observed in the case of, obviously, appropriate exercise of police powers, including quarantine powers, but it does not mean there is no limit.

EDELMAN J:   Would there be any role for a section 92 freedom of intercourse separate from this implication?  Or would the implication, effectively, swallow up a freedom of intercourse?

MR WALKER:   No, it does not swallow it.  The way we have tried to explain it – if I can paraphrase – is as follows.  By way of what we would, with respect, call one of the so‑called “assumptions” informing the making – devising – of the terms of our constitution, liberty of movement, including that redolent of the existence of a single nation in the place of several colonies, in terms of the understanding one sees after Federation in Smithers to which I will come, produced the need as between the former colonies to extirpate any pretension one of them may have to control, as if a sovereign nation, movement from a place which, of course, had become part and parcel of the one nation sense, hence, section 92.

In our submission, in examining the possibility of the implication for which we contend, it is for that reason that one would certainly not apply a kind of expressio unius to the specific allocation of the force of section 92 to cross border intercourse.  That is by no means enough to prevent the implication for which we contend.  Rather, we call in aid the substantive similarity to the reasoning which we employ to the reasoning by which this Court has produced and refined the freedom of political communication ‑ ‑ ‑

EDELMAN J:   I appreciate that.

MR WALKER:   ‑ ‑ ‑ which, of course, has nothing to do with borders. 

EDELMAN J:   Is there any example?  Could you give an example where section 92, freedom of intercourse, would apply where this implied freedom would not?

MR WALKER:   It is rather the other way around that I was thinking – namely, if crossing a border is not occurring, then section 92 does not bite.  It is for those reasons that controls on travel up to a border, including travel expressly for the purpose of crossing a border, raises a question as to whether it is only section 92 that provides a limit on the competence of the State Parliament so to provide. 

KEANE J:   So, trade, commerce and intercourse among the States really means, in effect, trade, commerce and intercourse throughout the Commonwealth?

MR WALKER:   It ultimately means that pragmatically, your Honour.

KEANE J:   That was a phrase that was expressly rejected by the Convention.

MR WALKER:   Yes, I appreciate that, your Honour, but that is because they had to focus on the relations between the former colonies becoming the new States and the Commonwealth was going to be – obviously, possibly – considerably more territory than that.  But, in pragmatic terms, particularly bearing in mind the re‑ or the new understanding or changed understanding, say, of section 122, in our submission, pragmatically one does say, not only of section 92 but also of those territorial self‑government provisions which pick up aspects of section 92, that pragmatically what has occurred is what I call a single national territory approach.

KEANE J:   Being pragmatic for a while, if the implied freedom is of communication generally does that mean that all the effort and ink that has been spent on identifying political communication has just been a waste of time?

MR WALKER:   No, your Honour, it means that it has attended to the issues in the case, case by case, as that doctrine has been pronounced.

GORDON J:   Mr Walker, I speak only for myself, but do you not fall into the very trap that Lange suggests, or seven Judges of this Court suggest you should not do, and that is, in a sense, sit back and say what is required by Federation rather than asking particularly what the structure and text of the Constitution shows?  I mean, all of these submissions seem to have difficulties when you actually sit back and analyse the text and structure.

MR WALKER:   Well, it is my task to try and dissuade your Honours from that position.  I accept that text and structure must be the foundation for a successful argument on our part.  I accept that.  We do not accept that one can neatly, simply say that pointing to the act and character of our Federation is to depart from a foundation of text and structure.  We do accept of course, if only rhetorically, that what might be called the vibe of Federation is not enough and you must be able to point to text and structure.  We have, in our written submission. 

It is for those reasons that we submit we have not fallen into the trap that Justice Gordon notes lies in wait for people in my position.  It is certainly not simply pointing out that this is a federal nation, that is a nation made by Federation that is the beginning and end of our argument.  No argument about text and structure, including the reasoning of this Court in the development of the implied freedom of political communication, can possibly leave out of account those parts of the text and aspects of the structure which produce, of course, a federated nation. 

It is for those reasons, in our submission that, though we accept conceptually or as a matter of method that if what we do bears the character that Justice Gordon has raised for my consideration, then we should fail.  We say it does not bear that character at all – to the contrary.  It bears the same kind of character as the arguments, eventually successful, in relation to the developed doctrine of the implied freedom of political communication.

KIEFEL CJ:   Mr Walker, you refer in your written submissions and your outline to those provisions of the Constitution which provide for the fundamental features of representative government.  But I have a little difficulty in seeing how you tie that to freedom of movement for any reason.  Rather, the approach seems to be to layer – to approach the matter by reference to what you also refer to – quoting from Thomas v Mowbray – the development of a “free and confident society”, which seems to be rather aspirational rather than anchored in the Constitution.

MR WALKER:   There are a number of aspects of the Chief Justice’s question ‑ ‑ ‑ 

KIEFEL CJ:   Yes.

MR WALKER:   Can I take up the last one first.  We do not shrink, as your Honours will have gathered from our repetition of it, from the significance of the plan for a free and confident society as being one of the ways to describe that which comes from the text and structure of the Constitution.  In understanding what comes from the text and structure of the Constitution it is in our submission well established that some of the so‑called assumptions must have weight in reasoning.  The rule of law is an obvious one, with respect to those aspects of Chapter III, which yield limits on Commonwealth and State legislative competence.

We, of course, submit that there are aspects of freedom or liberty, I hope none of our argument will be mistaken as suggesting so‑called rights, let alone individual rights - we submit that there are plainly assumptions of freedom or liberty to which, upon federation of the colonies, for example, section 92, needed to be promulgated in order that the freedom previously enjoyed within the colony could not thereafter within the new nation be only palely reflected by the continued resort by the new States to what had been their colonial so‑called sovereign powers of exclusion of people at the border.

Now, in our submission, the whole - all the provisions, that is the text, producing the structure of one people with one national representative government, entails not merely the communication that has been the subject matter of the Court’s authorities in what I will call the cognate area, it also involves the people behaving as one people and, in our submission, that cannot be conducted burdened by statutorily-imposed enclaves, to use the word of Justice Gaudron, to which I will come fairly soon.

It is for those reasons, in our submission, that movement beyond simply movement with a placard bearing a political slogan in a demonstration, for example, movement is, in our submission, part and parcel of being a society, that is, living together, of being a community that is interacting together.

Those are not, in our submission, merely aspirational, they are descriptive of the change to the former state of disparate and several colonies by the text, which created, both in the governing clauses and in the appended Constitution, the new single nation. 

Your Honours, another reason why it is not merely aspirational to attend to the epithets “free” and “confident” is that, in our submission, one cannot seriously contemplate the kind of informed and free choice at the formal occasions of elections without contemplating that, between those occasions, there is the opportunity to learn, by observing, and by mingling with anyone and everyone else in the country.

In our submission, it is part and parcel of a representative democracy that those who are represented, not just the electors, but certainly the electors, are people who learn about the society and therefore the adequacy or otherwise of those who govern and the way in which they govern by being able to participate in the kind of life that other aspects of the text of the Constitution contemplated will be part and parcel of this new nation.

Now, these were not novel or unique to Australia, a concern with trade and commerce, a concern with allocating governmental powers between Commonwealth and State authorities with respect to trade and commerce according to its supposed location, similarly with taxation and the like.  I do not need to go to all those provisions that we have catalogued in our written submissions.  It is plain, in other words, that this is a constitution, the text and structure of which contemplate there will be internal trade and commerce, external trade and commerce and the trade and commerce which has aspects of all of those. 

The same, with respect, must be true with the knowledge and opinions which are formed by the experience of living together, and it is for those reasons that travel and movement not circumscribed by five kilometres from home is, in our submission, something which raises properly the question does that go too far?  I should not have used that expression.  Does that prevent people from going far enough?  Has this law entrenched too stringently on something which has to be observed as an ultimate limit on the power of a parliament, Commonwealth or State, to say that Australians cannot leave their homes? 

If there be no limit, then the Court would have held that that is a matter only for political sanction.  Political sanction is mediated only through electoral choice and electoral choice, in our submission, must involve the capacity to inform oneself, including by going somewhere to observe, not as a UN observer to check formally on matters of government and regulation, but by being a person participating and seeing how things are down in Mornington, how things are in Ballarat.

KEANE J:   A bit of a difficulty with running that argument here, Mr Walker, is that your pleaded case does not actually allege any of those difficulties.  The only pleaded consequence of the restrictions that you plead are commercial, in that your clients are prevented from carrying on their business.  There is no pleaded case that raises a case of the kind you are now advocating.

MR WALKER:   Your Honour, with respect, that does not prevent a difficulty for the argument.  It is appropriate for somebody who wishes to exercise a freedom of movement for, as we say, any purpose – and there is nothing to be ashamed of in an economic purpose – is, in our submission, entitled to draw to the Court’s attention that the law that purports either to inhibit or prohibit that exercise of freedom by himself or his customers, is one which goes too far because of all of the aspects of movement, that is, for any purpose which would be inhibited, which are inhibited, by that provision.

So, the validity of the law, in our submission, is one which can be tested with appropriate standing by any person who can point to any aspect of what I am going to call the protected liberty.  You do not have to have all the aspects of the protected liberty entailed in one’s case in order to have standing justiciably to seek this Court to determine that the law in question has gone too far.

GAGELER J:   Mr Walker, you do not get anywhere, do you, by pointing to the potential for a restriction on liberty to infringe the implied freedom of political communication?

MR WALKER:   No, and we are not talking about ‑ ‑ ‑ 

GAGELER J:   I was – sorry ‑ ‑ ‑ 

MR WALKER:   ‑ ‑ ‑ mere potential.  I accept what your Honour says, with respect.  No qualifications. 

GAGELER J:   Or even the actuality. 

MR WALKER:   Your Honour is asking me would a litigant get nowhere by pointing ‑ ‑ ‑ 

GAGELER J:    I am not talking about a litigant.  I am talking about your client in this case ‑ ‑ ‑ 

MR WALKER:   No, I am ‑ ‑ ‑ 

GAGELER J:   ‑ ‑ ‑ given the pleading and given the point you are running. 

MR WALKER:   No, no – I refer to the freedom of political communication as an illustration of the way in which the process of implication can emerge, and we draw upon some similar circumstances, yes, but we are not – this is not a case about political communication. 

GAGELER J:   It does not assist your argument to point to the possibility of a case about political communication being brought on these measures.

MR WALKER:   No, no, it does not, and I am not calling that in aid.  I am not calling that in aid.  I hope that is clear.

GAGELER J:   Yes, thank you. 

MR WALKER:   Your Honours, we have, plainly, in our writing relied to a considerable extent on the early decision in 1912 of R v Smithers; Ex parte Benson 16 CLR 99.

KIEFEL CJ:   Which tab is that found at, Mr Walker – No 40?

MR WALKER:   I am so sorry, your Honours. 

KIEFEL CJ:   We have to be a bit more self‑reliant from our associates than usual, so we are lost sometimes, occasionally, Mr Walker. 

MR WALKER:   I know the experience, your Honours.  Your Honours this is a case with, as it were, slightly confronting facts.  The original destination of all the convicts with which this continent was settled against the will of its original owners, decides in 1903 that it is going to stop people, convicts, now otherwise free to move, coming in to the State.  What that says about the ancestors of many respectable people in Sydney, who knows. 

The authority is not one - you have seen the way we have written about this in our written reply - this authority is not one which can be put in some kind of garbage bin of jurisprudence by being pre-Engineers, for the reasons we have written about but do not need to elaborate.  In our submission, as Justice Windeyer pointed out, there are insights which well and truly survive the abolition of now exploded notions such as so‑called intergovernmental immunities and the like. 

When one is talking about the effect on the formally vociferous, that is jealously separately sovereign colonies preventing or trying to prevent people crossing borders to the new nation, in our submission, what the particular members of this Court had to say would still attract in our submission most careful and respectful consideration of the proper way, by no means merely aspirational, but based on what we now call text and structure, to understand the effect of all the provisions in the text creating the structure of the new nation.

If one could pick it up at page 108 in the Chief Justice’s reasons, one starts with the well‑understood aspect of what I will loosely call territorial sovereignty, namely, that the police power extended to the exclusion of persons thought to be undesirable.

GAGELER J:   That is a question I wanted to ask you.  What is the content of this notion of a police power? 

MR WALKER:   My understanding of the term in its particularly American usage is it has nothing to do with the police force or police officers.  It more generally extends to general statutes which regulate conduct in ways thought, by the legislature in question, to conduce to the public good.  So, the police power will extend, obviously, to all immigration or “influx of criminals: provisions.  It would certainly extend to all public health regulation.  It would not include taxation.  It would not include infrastructure projects.  The police power is, as it were, the power of domestic regulation for the good of the people.  That is my understanding of the American usage and it is how, I think, Sir Samuel was using it here.

GAGELER J:   It seems to have originated with Chief Justice Marshall in Gibbet v Ogden and then took on a life of its own in the second half of the 19th century. 

MR WALKER:   It got this, what I might call particularly favourable aura as being something which was distinctly and centrally appurtenant to, in that case, a State as a separate polity and that it was an attribute of being a State with what I will call the sovereignty of a State that your legislature and, under it, your Executive, had what are called police powers.

GAGELER J:   Almost inextricably tied up with the notion of reserved powers.  It was all about where the State fitted within a structure that involved citizens at one end, the national government at the other end, and somewhere in the middle of all this there was the State with its very limited police powers – limited at both ends.

MR WALKER:   They are not limited.  What both the Americans had to the understanding of Sir Samuel already established, was that they were particularly affected in ways that included limitations by Federation – by the creation of and the relevant paramountcy of the federal authority.  They are not particularly narrow – police powers in the American sense and the sense that Sir Samuel is calling it here – they are extremely broad.  They cover a very large part at any given time of the statute.  They are, as it were, definitional of there being a government. 

One of the defining attributes of there being a government is that this is the authority that wields, in the American sense, the police power.  “Reserved” is an epithet at which I would twitch, I think, your Honour.  With respect, it is not something that, in itself, produces any intergovernmental immunity in a federation.  It certainly does not partake only, if at all, of what might be called prerogative matters.  Rather, in our submission, it has to do with the central and defining attribute of being a government for people in a territory – that you police the people, an ugly expression, perhaps, according to modern language but, nonetheless, that was the political science of its usage, as we understand it.

GAGELER J:   Is it a concept that you embrace?  Is it part of your argument to employ this terminology?

MR WALKER:   No.  Your Honours will see the double caution with which Sir Samuel introduces his use of those two words.  He precedes it by “so‑called” and he puts it in what the Americans now call square quotes and it is to signify that he appreciates he is using a piece of jargon which one will find in that body of case law from which he has selected in that paragraph. 

No, the fact of a power being what the Americans would call or would have called “police power” has no part of our argument at all.  It does not matter, for our purposes, whether the impugned legislation falls within that category in some probably unnecessary taxonomy or not.  I mean, a law is a law is a law.

So his Honour simply starts off by saying that the general powers, peace, order and good government of the various colonial constitutions that pre‑existed Federation, unquestionably, without any need for specific enumeration, involve the possibility of legislating for the exclusion of persons considered undesirable immigrants.  In a customary fashion, his Honour then proceeds, without any beating around the bush, to assert that:

It is clear that the continuance of such a power in its full extent –

an important phrase:

after the federation is inconsistent with –

what his Honour calls:

the elementary notion of a Commonwealth.

I hope, that is, for my own self‑esteem, that his Honour does not mean “elementary” in the sense of easy to understand or simple, but rather in what I might perhaps render by the word “elemental”, that it is of the essence or core or overall character of the notion of a Commonwealth that exclusion from its territory is a matter for its sovereignty as opposed to the continued, unlimited power of one of its component entities to control.

To that point, Nevada, having some other relevance than otherwise today, that his Honour then quotes from Mr Justice Miller in Crandall, the passage with which your Honour is familiar, and which contain, as has been put to me by Justice Gageler as the “cobbled” or “stitched‑together” aspect of some of our citation of authority and articulation of principle, it contains references to what are illustrations or examples of reasons why those aspects of being a nation, that is, with the seat of government, with offices, with functions to be administered, in an elementary sense, precluded the notion of one of the federal components, one of the, as it were, lesser or constituent polities purporting to prevent the exercise of that freedom.

KIEFEL CJ:   Mr Walker, this case assists an understanding of section 92, particularly in the intercourse provisions limb, but I am having a little difficulty understanding what you derive from it for your argument.

MR WALKER:   What we derive from it is that it is centrally concerned with movement and that the movement with which it is concerned is going to be movement throughout all parts of the territory, not just across borders.

KIEFEL CJ:   But that points up this aspect of your argument, does it not?  For your argument, you need to expand on what their Honours are discussing in terms of freedom of interstate movement.  You have to actually expand section 92.  That is quite different from an implication of cause.

MR WALKER:   No, I accept your Honour’s stricture.  I do not want to expand section 92.  We call in aid section 92, of course.  Upon the federation of colonies, something had to be done about the status of what continued to be boundaries, what continued to be, according to the then understanding, lines which would affect the efficacy in some cases of, indeed, probably what the understanding at the time was in all the cases of so‑called inferior legislatures would be a line marking the efficacy or operation of laws.

KIEFEL CJ:   But does not the fact that the Constitution expressly provides for specific movement interstate and for a very general purpose on one hand, and trade and commerce on the other, but the fact that it expressly provides for interstate movement and not intrastate movement somewhat limits the potential for an implication?

MR WALKER:   No.  I know we have to confront that.  I tried to answer an aspect of your Honours’ concern when Justice Edelman asked me the question in the course of answering which I referred to what we would submit is the insufficiency of anything in the nature of an expressio unius way of repelling the implication.  Can I try and elaborate that point.  We accept its importance, with great respect. 

Controlling crossing a border is controlling movement.  Denying the States or, if it matters, the Commonwealth, the power to control movement, intercourse or trade and commerce across a border does not, in our submission, preclude an understanding of the pre‑existing true common law state of affairs in colonial times made necessary by the text which federated the colonies into one nation with one representative Commonwealth Parliament and a structure that involved provisions providing for what I will call a national economy, so trade and commerce regulation, tax and the like. 

It would be, in our submission, contradictory of the significance of 92 preventing intercourse across borders to say, in effect, that there could be a stifling of that by the prevention of leaving your house at all.  So, apart from those unfortunate enough to live on a border, literally, everyone has to leave their residence in order to travel interstate.  In our submission, it cannot be supposed that the concern of the Constitution with freedom of national travel, which I accept is safeguarded in section 92 and its intercourse limb for any purpose – it is just intercourse for any purpose – it would be, in our submission, quite contrary to that structure to say, “But there can be a prevention of that which is necessarily anterior to any exercise of that so‑called absolutely freedom”.

It is for those reasons there is no expressio unius - the freedom for which we seek implication entirely complements and permits in what we submit is the necessary and practical sense the insistence that there be those freedoms, one of which has already been found to be political communication, and another for which we are contending, namely, travel and mixing among ourselves for any purpose, which renders a group of people in a territory, a society or community, “a people” as the covering clause calls that which is going to emerge from the peoples rather than simply enclaves prevented from moving by laws enacted, for whatever purpose, that would prevent travel.

It would prevent, for example, if there were no such protection – sorry, it would permit State legislation preventing people within the State – they do not have to be resident, just anybody within the State who happens to be within the State – from travelling to look at the place where something terrible and to the discredit of the government is thought to be occurring, such as unattended natural disasters, whether they be drought, flood or fire or, for example, terrible poverty or the dereliction of public infrastructure.

It does not depend upon the established freedom of political communication for the tort to be able to say well, those are not laws that the Constitution with its plan for a free and confident society could possibly contemplate as being permitted, to deny people the capacity to see with their own eyes not just to assemble by way of protest – some people might like to find out the facts before protesting, for example, and you do not have to be a journalist. 

Journalists are not, in our submission, such a favoured species as to have, as it were, an impossibly implied protection only for them.  In our submission, all and any of us should be able, at any time, to mingle for purposes that include but are by no means limited to politics or commerce.  Hence, Sir Isaac Isaacs rather tart rejection of the notion that it was what his Honour called “the sordid means of commerce” was a necessary badge of protection by the intercourse limb of section 92.

GAGELER J:   Mr Walker, do you invoke, in some way, Crandall v Nevada or the Slaughter-House Cases?  Are they part of our constitutional tradition or made so by the reference to them in this case?

MR WALKER:   The short answer is no, Crandall is not, by this citation, part of our body of constitutional doctrine.  The purpose for which his Honour is citing it is on what he calls “that point”, and that is the continuance of the State legislative power to that extent being inconsistent with Federation or, as he says at the top of the next page:

cut down to some extent by the mere fact of federation –

It is that which, as we apprehend it and read it, Sir Samuel is seeking to obtain support from the language of Mr Justice Miller in Crandall, which of course includes those explanations of particular or solid concrete instances demonstrating the contradiction between a continued full extent of so‑called State police power and Federation.

GORDON J:   Is that the matter to which Chief Justice Dixon in Pioneer was expressing concern when he said it was not an opportunity in that case to examine the very general concepts and ideas in Crandall?

MR WALKER:   Yes, is the short answer, your Honour.  That, in our submission, is a very significant note of caution with which we, with respect, align ourselves.  We accept that, unless we can point to text and structure, it will not be enough simply to rely upon what I will call the fact of Federation, we have to point to aspects of our Federation as created by our text, creating our structure, and for the reasons I have put, that involves the notion of one society or community with one representative Parliament for one national territory, with section 92 putting paid to former colonial barriers but, in our submission, the implication, like the implication of the freedom of political communication, being necessary in order that the mingling, which is intrinsic to the existence of one people, be permitted subject only to appropriate, adapted, proportionate, reasonably necessary regulation of which there will be myriad and presumably constantly‑adapting cases.

Your Honours, there is also of course the passage in Justice Barton’s reasons at the foot of 109 over to the top of 110 of 16 CLR, there, there is another explanation of how Sir Edmund understood the quoted expression “police power”, a description of it being:

the “right of self‑defence” in respect of such matters as internal order, or the safety, health and morals of the people of the State –

as having been probably affected by the new right, which his Honour has just described as:

the right of access to the institutions and –

the phrase upon which, of course, we rely:

of due participation in the activities of the nation.

The “activities of the nation” are not limited to what would be the impoverished extent only of overt or explicit political participation.

KEANE J:   But they are the activities of the nation.  Crandall, in its own terms and what Chief Justice Griffith and Justice Barton made of it in this judgment, is concerned about limitations on the power of governments to prevent movements to the seat of the Federal Government.  Crandall is not concerned with a case where the State law might seek to control or inhibit movement of a resident of New York from New York to Albany, it is concerned with a law of any State that might inhibit movement of a resident of New York to Washington.

MR WALKER:   With great respect, your Honour is right about Crandall, of course ‑ ‑ ‑

KEANE J:   Their Honours in this case are not using it for anything else, because the case is entirely about movement from Victoria to New South Wales. 

MR WALKER:   No, that is right.

KEANE J:   It was New South Wales law that made it an offence to cross the border if you happened to have been convicted of a particular offence in Victoria. 

MR WALKER:   Quite.  They did not have before them an order that would prevent Wollongong convicts travelling to Newcastle, and that is why the case ‑ ‑ ‑ 

KEANE J:   Because the issue - and in the case of Wollongong convicts travelling to Newcastle no issue about Federation would arise, no issue about the new limitations on State police power would arise in such a case. 

MR WALKER:   Your Honour appreciates our argument cannot accept the proposition your Honour raises with me ‑ ‑ ‑ 

KEANE J:   But the case is not suggesting anything that supports your argument which is about the inability of a state to make a law restricting movement from convicts from Newcastle to Wollongong. 

MR WALKER:   In our submission it is – I am now trying to persuade your Honour that your Honour’s last observation is not to be preferred.  The considerations which produce the holding in Smithers are considerations which, in our submission, ought to be understood as Justice Barton described them, as concerned with the freedom to participate in the activities of the nation, in that case, because the law in question, uncontrolled by a law which their Honours were thereby finding beyond the competence of the former colony, now the State of New South Wales. 

GORDON J:   Mr Walker, can I just test that proposition?  I had understood Justice Barton at the foot of 109 to be picking up the language of Crandall because what his Honour says is:

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 bits that you then – I do not mean this in a disparaging way - fill it out of the sentence.  It is dealing with national questions. 

MR WALKER:   Your Honour, I was trying to focus, not fill it, but of course we accept that the fact of Federation, and that is what both Crandall in the different American way was dealing with, and what Smithers in the Australian way was dealing with, the fact of Federation of course draws to attention the creation of a new nation and that nation having affairs.  My point is simply this – the affairs of a nation do not exclude those activities which are conducted entirely within one or other of the former colonial, now State or territorial boundaries.  They are all nonetheless national. 

In other words, “national” and “federal” are not exact synonyms.  Everything federal is national but not everything national is federal.  It is of national significance what happens to the economy of Melbourne, not merely State significance.  Indeed, to say anything is State significant is often to say that it is also nationally significant. 

But the economy operates, and societies and communities form – obviously, one thinks of communities so‑called on either sides of border rivers, be it the Murray or the Tweed, regardless of political boundaries, because of, among other things, that attribute of there being a nation, notwithstanding the continued component polities, across the borders of which people can travel - see section 92 for crossing borders – and, in our submission, when one therefore looks at due participation in the activities of the nation by way of contrast with the more specific reference to right of access to the institutions of the nation, one cannot be talking simply about activities which are either political, let alone, of course, specifically to do with the election or accountability of members of the national Parliament, and neither can one be talking about activities that must in some sense cross a border in order to be called national rather than State. 

It is for those reasons, in our submission, that what Justice Gordon has raised with me is no reason to read Smithers as having no application to matters which are contained within – that is, are regulated by and for the representatives of the people of one State.  That is in further answer to the way Justice Keane has suggested the matter should be seen.  In our submission, the activities of the nation and due participation in it, by definition, includes the people of the nation which, definitionally, includes people within as well as outside any particular former colony in our State being able to mingle with each other.

Your Honours, mindful of the time, can I now address – I can pass over what we have said in paragraph 12 of our outline with respect to Pioneer Express.  I do not want to add to what we have written elsewhere about that.  If your Honours just forgive me for a moment; I apologise for this.  Another of what I would call a focus – it might be regarded as a fillet, but it is a choice cut, in our submission - on 110 of Smithers 16 CLR, your Honours’ attention should have been drawn by me by way of emphasis to the very next sentence in question.  It is not without its ambiguities, but his Honour, Sir Edmund, there refers to:

the reasons for the decision –

which is the decision in Smithers – influenced, no doubt, by the general considerations in Crandall – are conclusive.  It is intellectual hostage to fortune, I suppose, as to all parts of Australia.  In our submission, it is that last phrase that deserves emphasis in this new case where we do not have simply a control at the border as was the case in Smithers because that is an expression which, in our submission, correctly understands that there is national territory involved in activities wholly confined within the limits of one State as well as there being national territory when activities cross a State.

KEANE J:   It is interesting, Mr Walker, that Justice Barton goes on to say, a few lines down:

It is probable that the right of the citizen, so far as it may be described by the word “intercourse”, is not carried much further by sec. 92 of the Australian Constitution than the fact of union necessarily carried it, though the express prohibition of that section against restriction no doubt makes the Australian Charter much stronger than the American in respect of trade and commerce.

What his Honour does not say is section 92 is just simply an example of a broader freedom from any regulation of any movement within a State.

MR WALKER:   I accept that entirely, your Honour.  That was not in question in that case.  So the absence of a statement to that effect is not, in our submission, authority against the reasoning for which we contend.  Of course, I do not – I suppose I should draw to attention that halfway down 110 there is the kind of discussion which, were there to be the freedom for which we contend, obviously would then be next entailed in any argument by us to impugn legislation or regulation under it, and when his Honour ‑ ‑ ‑

EDELMAN J:   Just in relation to the point that Justice Barton makes concerning section 92, would the freedom for which you contend undermine the operation of section 92 if the point of view such as that taken by Justice Toohey in Cunliffe v Commonwealth, the operation of the intercourse limb of section 92 was one that was confined or concerned with discrimination?

MR WALKER:   On that premise, I think the answer is yes.  No part of our argument, certainly as we intend to present it, entails, however, taking any position with respect to anti‑discrimination as the mainspring of the intercourse limb of section 92.  There is not an anti‑discrimination strand in our argument.  We, I think, would fail if it were necessary to point to any discriminatory element in legislation impugned as being contrary to the freedom for which we contend.  It is no part of our construction of it and so would not be involved in any argument that it had been unjustifiably burdened. 

But, in our submission, the notion that there needs to be a limit observed, in Smithers it was on laws that would operate at the boundary, so it was not concerned with laws that would operate, say, to stop a convict from approaching Sydney who had crossed from Victoria.  It was not concerned with that and, in our submission, the reasoning in it rather suggests, with respect, that that was understood to be a matter which would be contrary to federating, which had the effect of people being able to move around the nation so as to participate in all parts of Australia in the nation’s activities. 

Sir Edmund considers that at point 6 on page 110 as to the theoretical – what he called the “residue of power left to the State”, that it was clearly limited by the existence of some necessity for the defensive precaution.  It is at that point, of course, that one can see readily how in particular the so‑called quarantine power at State or Commonwealth level will very often of its very nature involve not only the detention of people, but also the restriction on their movements.

KIEFEL CJ:   Mr Walker, that might be a convenient time for the morning adjournment.

MR WALKER:   Thank you, your Honour.

AT 11.18 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.36 AM:

KIEFEL CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, the final point I wanted to make deals with the case of Kruger v The Commonwealth (1997) 190 CLR 1, which your Honours will find at tab 28 in volume 6 of the authorities. These are the general conclusions to which we seek to persuade your Honours about it. It is not an authority against us. Alas, it is not an authority for us. It is to be understood in light of the approach it took – when I say “it” I mean the decision; the reasons are disparate – with respect to section 122. It is, at best, in our favour, inconclusive concerning those parts of our argument which fall within consideration of what was there described in portmanteau fashion as a freedom of movement and of association.

But, in our submission, there are ideas concerning the effect of what the constitutional text produces by way of Federation and the one national people and, with respect to the structure, albeit complicated by the then understanding of the territorial position that is pertaining in the Northern Territory which provide, in our submission, as to some of them, cues in favour of our case.  So we need to deal with a proposition that stands in our way, it does not, we need to accept that it comes nowhere near lay‑down misère.  To mix metaphors, it is a curate’s egg for us. 

Your Honours, may I pick it up, because the case is concerned with far more than issues of the so‑called freedom of movement out of association, in the Chief Justice’s reasons at page 45.  His Honour commences the relevant discussion in that first full paragraph about point 3 or so, saying of the asserted:

implied constitutional right to . . . freedom of movement and association –

in the context of a case concerning historical, supposedly authorised removal of Aboriginal children, separation of families, that:

No such right has hitherto been held to be implied –

and then, ominously for us:

no textual or structural foundation for the implication has been demonstrated in this case.

His Honour notes his understanding of the argument contended for as being the freedom:

advanced as a corollary of that freedom of –

political:

communication –

and puts that argument to one side because the provisions for removal of children and family separation in that case had nothing to do with impeding protected communications, so his Honour said.  Then his Honour accepts that had it been otherwise, see halfway through the next paragraph, commencing “Actions taken”, had it been otherwise, then:

a question could arise as to the validity of the action.

We do not, for present purposes, need to explore further the way the Chief Justice was distinguishing between the legislation and action authorised under it.  Then, in the next paragraph, the way in which his Honour the Chief Justice disposed of the matter was to say that whether or not some such implication is to be found, in effect, it would not matter in that case.

Could I then go to the way in which Justice Dawson dealt with the matter at page 69?  This is very much a case and reasoning that might, since Wurridjal would need in relation to section 122 to be further considered, but that is no part of my assignment.  In dealing – starting as it did on page 68 – with what his Honour heads as “Freedom of movement and association”, his Honour – reflecting the argument in that case – starts with a consideration of what is entailed in the established freedom of political communication and, in particular, we draw to attention the quotation from ACT, at the foot of 68, top of 69, where his Honour selects that phrase:

“an opportunity to gain an appreciation of the available alternatives” –

We interpolate, for argumentative purposes, that the observation – as opposed to mere uninformed communication of opinion – is, in our submission, part and parcel of the appropriate notion of an opportunity to gain an appreciation.

Halfway down page 69, following the reference to section 122, his Honour discerns that the separate constitutional history and position of section 122 areas should operate so as to extend the, what I will call non‑application notion, to other rights such as freedom of movement and association.  His Honour, in other words, is specifically confining the matter to suggested freedoms operating in section 122 territories. 

There is then a reference to Smithers, the effect of which in that paragraph is to say the freedom in Smithers is not available to people in territories and, understandable, with great respect, reference in that regard to section 92’s focusing on States, and then his Honour also notes the suggestion of Justice Gaudron in ACT concerning the possibility of the notion of a free society governed in accordance with the principles of representative democracy entailing freedom of movement and freedom of association. 

His Honour then makes an observation akin to some matters that have been raised with me before the short adjournment concerning whether that appears to be based on the nature of our society which his Honour says cannot legitimately be used as a source of constitutional implications.  If that is all it was then, with great respect, the observation would be trenchantly applicable.  However, with respect, Justice Gaudron is certainly referring to matters, namely representative democracy, which are to be found in text and structure and the text and structure also reveal the notion of one people.

I can then I think take your Honours directly to the way in which Justice Toohey addresses the matter, picking it up at page 88, and associating himself at the top of page 89 with what might be called an afterlife for an approach of Mr Justice Murphy concerning the right:

to move freely across or within State borders as “a fundamental right arising from the union of the people in an indissoluble Commonwealth”.

His Honour then proceeds to refer to Nationwide News dicta by Justice Deane and himself and one - we wish to emphasise in particular the figure of speech that their Honours used in Nationwide News at about point 6 on page 89 referring to the unacceptable position, as we would urge it to be, “if each person was an island, unable to communicate with any other person”.

At page 90 we draw to attention what your Honours would have observed, that his Honour quotes the passage from Justice Barton commenting on Crandall in Smithers and one sees in particular the stress laid by Chief Justice Mason as quoted by Justice Toohey at point 6 on page 90, that is Chief Justice Mason in ACT, in particular:

The efficacy of representative government depends also –

That is the language of necessity and practicality – but depending:

upon free communication on such matters between all person, groups, and other bodies in the community.” 

In our submission that is not simply, and could never be, confined to the operation of mass media. At the foot page 91, the passage commencing “Comment and discussion” is one which, in our submission, is redolent of the significance of movement, that is the activities of a people as a people. 

Could I then take your Honours to the reason of Justice Gaudron, picking it up at page 114.  A distinction that her Honour makes about point 5 on page 114, starting “The implied constitutional freedom” is not, it may be accepted a distinction that has commanded assent in the sense of providing an essential explanation of current doctrine in this Court.  However, we do urge that the very process of implication according to orthodox processes in this Court does entirely justify her Honour, as it were, looking forward and looking more generally – looking forward in the sense of looking to a horizon, when her Honour posits that what one is examining is what:

is necessary for the maintenance for the democratic processes for which it provides. 

Controversies have arisen and have been settled producing the doctrine concerning freedom of political information.  It is not to be supposed that that is the end of the possibilities.  On page 115, her Honour also picks up the figure of speech “island”, each person being an island from Justices Deane and Toohey in Nationwide, and then expands that by referring to the substantial impeding of the freedom of political communication if citizens are held in enclaves.  Her Honour is not talking metaphorically about being held, this is people being restricted in their movement and not merely by reference to State boundaries, “no matter”, her Honour points out:

how large the enclave or congenial its composition.

In other words, the activities of the nation and the anterior and continuing, that is, continuous need for observation and discussion at all levels, personal, commercial, political are, in our submission, part and parcel of that which eventually produces the necessity of a freedom of political communication.

Your Honours are familiar with the steps by which your Honour reaches freedom of movement.  We accept that did not command a majority in that case and has not yet produced what is necessary for our success by stare decisis.  We cannot look for that.  It is, in our submission, as you have seen in our written reply, not helpful either to equate movement and association – they are obviously different if overlapping – nor, as it were, to treat an inadequacy of justification for implications with respect to association as serving, by that one blow, also to eliminate the implication of freedom of movement.

It is true that the argument we put in that regard can be seen to differ somewhat from the concluding steps in her Honour’s paragraph commencing “It is clear”, on page 115.  However, in the next paragraph, and in the paragraph after that – that is the foot of 115 over to 116 – we do, with great respect, point to the enduring as well as prescient character, of what her Honour warned with respect to so‑called “modern methods of communication”, that one does not adequately deal with the freedom of movement for which we contend any more than one would deal with the freedom of political communication with which other cases have been concerned by saying you can telephone each other, you can – in the olden days – fax each other, you could even send a letter and of course you can be linked digitally by any number of other means.

In our submission, her Honour, with respect, is correct in pointing out that society involves – we argue that this is axiomatic, that is, definitional of something called “a society” – a freedom, as her Honour puts it, to move within society.  That same matter is also the subject of her Honour’s concern, seen at page 119 in the paragraph commencing “Moreover”.  None of that is redolent of concern, obviously, with State boundaries or Territory boundaries having anything to do with the matter. 

At the foot of page 120, top of page 121, propositions are put with which our argument has no difficulty.  Her Honour, having described what her Honour called “the subsidiary freedoms of movement of association as being essential for the maintenance and integrity of the system of representative government for which the Constitution provides”, is of course referring to a process of reasoning which is a textual and structural process.

At the top of page 121, as we have said, if this case were to go any further of course there is much to be said about any particular law said to be invalid by reason of infringing excessively that freedom because it is of course not qualified and, as her Honour points out, quarantine is an obvious topic of importance in that regard.

At page 125 – this is apropos an argument concerning an action for damages which is probably not at all relevant to our present concerns – but in the course of referring to that and, in particular, to the first of the sub‑topics under that heading of section 116, her Honour contrasts the freedoms that her Honour saw as existing as being:

of their nature are universal, in the sense that they necessarily operate without restriction as to time or place –

With respect, that is part of our answer to questions that have been raised with me about what might be understood from the concern of section 92’s intercourse limb with intercourse between States – that the freedom of movement in question is, for the reasons her Honour is there elaborating in the middle of page 125 not something that is exercised only by the act of crossing a political boundary.  It is because they operate without restriction as to time and place, that her Honour goes on to say that:

they necessarily restrict State legislative power –

That must follow.  It:

may be described as giving rise to general, although as earlier indicated, not absolute freedoms.

But, of course, the common law provides other courses of action rather than there needing to be invented a freestanding one.  Page 128, in her Honour’s reasons, towards the foot of that page, the paragraph commencing “In my view, the test applicable” – and her Honour, obviously, is speaking at what I will call an earlier stage in the development of this Court’s jurisprudence, but we would draw to attention the distinction that her Honour draws at that basal level in reasoning about an implication at all between a law restricting freedom of movement, or of association, and a law restricting political communication. 

It might be thought that even with the different considerations to which her Honour refers at the top of page 129, those are matters which, nonetheless, involve understandable and appropriate overlap as one would expect of those things which are necessary as attributes of the requirement in the text and structure of the Constitution in the case under discussion – Kruger - representative government.

GAGELER J:   I am not getting it, Mr Walker.

MR WALKER:   I am sorry, your Honour.

GAGELER J:   What are you drawing from that first sentence of the paragraph beginning, “In my view”?

MR WALKER:   That her Honour is explaining that there are similar – though not the same – considerations at work when one examines the effect of an impugned law on one or the other of those freedoms.  That shows, in our submission, that they, themselves – the freedoms – are brought about by the same process of reasoning. 

GAGELER J:   Is she not saying that such freedom of movement in association as exists is attributable to the freedom of political communication?  They are, in that sense, subsidiary.

MR WALKER:   No, no.  There are tests applicable in both cases – is what the beginning of that paragraph says – that dealt with separately, it is not freedom of movement only for the purposes of political communication.  There is no other way of understanding her Honour’s earlier comments about enclave.  Could I then go, in Justice McHugh’s reasons, to page 142.  The paragraph that commences “The reasons that led” at about point 7 on page 142 describes a conclusion by his Honour with respect to a freedom described by reference to:

the purposes of the constitutionally prescribed system of government and referendum procedure.

Accordingly, his Honour’s next sentence talks about:

freedom . . . preventing association and travel must extend, at the very least –

So not describing a limit:

to such matters as –

and then there are familiar examples of a kind to which we have already made reference.  Then, having as it were accepted, indeed having expressed a conclusion which we would describe as not contrary to matters that we need to persuade your Honours of, it is all decisively put to one side by the position his Honour took with respect to those who enjoy the effect of section 122, as your Honours see in the next page and a half of his Honour’s reasons.

Finally, Justice Gummow, picking it up at page 156, under what must be regarded as the not very promising title of “Other implications”, there is the passage to which we have referred, particularly in our written submissions, at the foot of page 156, commencing “In ACTV” and going to the top of page 157. 

In our submission, that is a passage that should be understood as referring to what is the proper and correctly focused process of judicial implication – that is, finding judicial exercise of perceiving or not an implication in the Constitution by reference to text and structure, rather than the earlier notion to which I have made previous reference of merely a notion of a free society, et cetera.

The passage just below halfway on page 157 accepts that if any broader constitutional implication as to freedom of movement existed, a matter that his Honour does not decide, it is, with respect to legislation and action purportedly authorised under it, a freedom which would provide an

occasion for considering whether it had imposed a limit which had been exceeded by the particular exercise of legislative power and executive authority under it.

There is, it has to be said, nothing else favourable to us in that case, but it can be seen from the disparate reasoning by which their Honours dealt with a very different position indeed of legislation in that case, concerning a there‑posited freedom of movement and association said to have been infringed by legislation purportedly authorising the removal of children and the separation of families, taking them to other places, in our submission, it cannot be said that stands in our way as a matter of the authority of this Court.  Your Honours, with that, we have completed what we wanted to say in elaboration of our written submissions.

KIEFEL CJ:   Mr Walker, may I ask you something about the orders sought, and referred to in the written submissions at paragraph 69?

MR WALKER:   Yes, your Honour.

KIEFEL CJ:   The written submissions appear to treat what appears in the demurrer as a question reserved rather than as a ground in law for the demurrer.

MR WALKER:   Yes.

KIEFEL CJ:   Answering the question would not be the appropriate approach, it would be dependent upon success or not, allowing or not allowing the demurrer.

MR WALKER:   Quite so.

KIEFEL CJ:   Costs are not referred to in ‑ ‑ ‑ 

MR WALKER:   Because, if I may say so, in the reasons, a question not posed as a formal question would have been answered.

KIEFEL CJ:   Yes, would be dealt with in the reasons but not in the order.

MR WALKER:   Quite so.

KIEFEL CJ:   Costs are not dealt with in the demurrer, but they would follow the event.

MR WALKER:   Indeed.

KIEFEL CJ:   Thank you, Mr Walker.  The Court will adjourn to consider the course that it will take.

AT 12.07 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.11PM:

KIEFEL CJ:   Solicitor for Victoria, the Court need not trouble you with further submissions.

MS WALKER:   If the Court pleases.

KIEFEL CJ:   The Court is unanimously of the view that the demurrer be allowed.  The orders of the Court are demurrer allowed with costs.  Reasons will be provided at a later date. 

The Court will now adjourn to 10.00 am on Tuesday, 10 November in Canberra.

AT 12.12 PM THE MATTER WAS ADJOURNED