MR SILBERT: If your Honour pleases, just before my friend commences, there are two matters that I omitted to refer to last night. With your Honour’s leave, if I might just raise them. They are very brief and they will take two minutes.

FRENCH CJ: Yes, Mr Silbert.

MR SILBERT: The first is a matter of construction that addresses the construction point raised by Justice Bell yesterday and in relation to the interpretation of 42(1)(c) and it is submitted that our construction of that provision provides for commas after the word “offender” and the word “proceeding” which would enable it to be read “that any information that might enable an offender, or another person who has appeared or given evidence in the proceeding, to be identified” and the reasons for that construction are to be found at paragraphs 14 to 19 of the informant’s submissions and 47 to 50 of the written submissions as well as what was said orally yesterday.

The consequence of that is the narrower construction that only the offender’s connection with the extended supervision proceeding is suppressed does not fulfil the evident purpose of assisting the rehabilitation of the offender in the community and reference is made to Ferguson, which is referred to in the submissions.

There is no point simply suppressing only that fact and that on the narrow construction people could publish the offender’s name, address and description and the one thing that might allay public fears or quell public disquiet, that is, that there is an extended supervision order in place to control the freed person is the one thing that could not be published and, with respect, that would be, in our submission, a difficult consequence of the provision. That is consistent with the 2009 Act. If your Honours look to section 184 it is plain that it is not linked to proceeding in the 2009 Act.

GUMMOW J: Section 189?

MR SILBERT: Sections 182 and 184 of the 2009 Act, which reformulates the suppression provisions.

HAYNE J: I thought that simply presented the same construction question.

MR SILBERT: Yes, it does, but without a reference to the proceeding. So the answer is yes, it does. The second matter I seek to raise,

your Honours, is that the informant has filed some written submissions in reply to paragraphs 8 to 22 of the submissions of the Commonwealth Attorney-General. They are dated 29 October 2010. If I need leave to file those, I seek leave. I do not intend to address them orally and I simply rely on the written submissions in response to those paragraphs of the Commonwealth’s submissions.

FRENCH CJ: We have received those submissions and read them, Mr Silbert.

MR SILBERT: I am obliged to your Honour. If the Court pleases.

FRENCH CJ: Yes, Mr Solicitor.

MR GAGELER: Your Honours, I want to touch upon one topic of legislative history and then make two points about Kable and two points about Lange. The topic of legislative history is mentioned at the end of footnote 16 of our written submissions and in about the middle of paragraph 13, but it is insufficiently developed by us in writing, and it concerns matrimonial causes or family law jurisdiction which, of course, was the context for both Scott v Scott and Russell v Russell, and within Russell v Russell was the context of the comment by Justice Gibbs that the need to maintain secrecy or confidentially or the interests of privacy or delicacy, they are all his words, might on occasions justify even the closure of a court.

Those cases, Scott v Scott and Russell v Russell, of course, directly concerned the closure of a court. They did not directly concern the prohibition of the publication of the names of persons involved in a court proceeding or the evidence given in a court proceeding, but when you look at the history of the matrimonial causes jurisdiction, then what you see, particularly in Australia, is that there is a very long history of legislative provision for the non‑publication of evidence and of the names of parties in matrimonial causes and the legislative balance, one can see, was struck in different ways at different times, but there has been, since before a federation, a legislative balance that has been struck between the interests served by open justice and the interests served by privacy and confidentiality in this particular context where, of course, those interests take on a heightened dimension.

We have given your Honours a few pieces of paper. One of them is the Matrimonial Causes Act 1899 (NSW). We have extracted this from Mackenzie’s Practice in Divorce, 6th edition as at 1952, but the provisions I am wanting to draw your Honours’ attention to were in the original 1899 Act. Section 77 of that Act required proceedings generally to be in open court, but section 81 of the Act conferred a generally expressed discretion in the court for a judge to make an order forbidding publication. That power to forbid publication that one sees in section 81 can be traced back, if your Honours have another bundle that we have given you headed up Matrimonial Causes Family Law Legislation, and if you turn to page 3, what you see is an Act of 1892. Sections 4 and 5 of that Act seem to us to be the first time that a provision allowing for a non‑publication order within this jurisdiction was conferred in New South Wales.

Of course, it is hardly surprising, given that the matrimonial causes jurisdiction was a sort of latecomer to the common law court system. What you can see is not very long after the conferral of this form of jurisdiction on common law courts you have a legislative adjustment, a standard common law procedure, to accommodate this new subject.

If you go to Queensland, in 1897, page 1 of this bundle, what you can see is an even more generally expressed discretion in a court, not confined by reference to necessity or the interests of justice or the interests of the administration of justice, and the discretion your Honours see ‑ ‑ ‑

GUMMOW J: The point is that it was a distinction between the court and chambers, was it not?

MR GAGELER: That is right.

GUMMOW J: And chambers meant chambers.

MR GAGELER: Chambers meant chambers; that is right, yes, and also the provision for non-publication in the same.

GUMMOW J: Yes.

MR GAGELER: It is a generally expressed discretion, which is the only point we wanted to get from it. If you then go to the position when the Commonwealth took over this field in 1959, we have extracted, at page 7 of this bundle, section 123 of the Matrimonial Causes Act, which was a general legislative prohibition on publication. But within the control of the court, by reason of subsection (5), which said that the general prohibition did not apply in relation to paragraph (b):

the printing or publishing of a notice or report in pursuance of the direction of a court -

We have not extracted, but your Honours should be aware, also of section 118 of that Act which provided that the court should proceed in open court, so it continued the basic structure of the 1899 New South Wales Act requiring proceedings to be in open court but dealing separately with non‑publication, but instead of conferring a discretion on the court to make a non‑publication order, it started with the blanket prohibition of non‑publication but then gave the court a discretion to modify that in particular circumstances.

The Family Law Act your Honours will then see at page 9 and following. Section 97, as originally enacted, page 10, provided for a hearing in closed court and your Honours recall that was the subject matter of the decision in Russell v Russell, but section 121, continuing the scheme of section 123 of the Matrimonial Causes Act 1959, had the general restriction on publication subject to modification by a court under subsection (5)(b). If you look, then, at page 13 and following in this bundle, you see the Family Law Act in its current form, relevantly, as substantially amended in 1983 and then again in 2003.

Section 97(1) now happily provides for the exercise of jurisdiction in open court but section 121 in a modified form continues the general legislative proscription of publication and that is modified in subsection (9) in two ways, by the power of the court in paragraph (d) to direct – where the court, in accordance with paragraph (d), directs publication of a notice or report, but also paragraph (g) which refers to:

publication of accounts of proceedings, where those accounts have been approved by the court.

We have finally, just as an example of the exercise of the jurisdiction or of the power conferred by paragraph (g), given your Honours the decision of Chief Justice Bryant in a case where she saw it as appropriate to exercise that discretion. That is the legislative history that we wanted to draw your Honours’ attention to.

What I wanted to say about Kable, and here there are two points, goes to the content of our written submissions in paragraphs 17 and 18. What we say in paragraph 17 is apparently the subject of controversy. It has been criticised. It is the sole subject of criticism of the informant’s submissions in reply and what we say in paragraph 18 really goes to what is said on behalf of the defendant as the principal submission in the proceeding.

If I can deal with the paragraph 17 point, all that we are saying is that in the application of Kable what will properly be principle underlying Kable, it can be accepted that a substantial legislative derogation from the principle of open justice will require, if challenged, constitutional justification in terms of the pursuit of a legitimate end by proportionate means.

Now, that is simply the consequence of two things. One is, the observation that was made by Justice Gaudron first, I think, in Ebner but then got picked up in Bradley, that got applied in Forge and that got repeated and applied in Gypsy Jokers and in K-Generation and that observation is that the root principle of Kable lies in the protection of a Chapter III court as an independent and impartial tribunal – an institution capable of independently and impartially exercising the judicial power of the Commonwealth. That is the first point.

The second point is the observation that you can see made again and again throughout history in the courts and in commentary that open justice is not an absolute rule and that open justice is not an end in itself. It is a standard or common characteristic of a common law court and it is a standard or common characteristic that reflects and promotes independence and impartiality – the very thing that the constitutional principle protects.

So, if you admit of a rule that reflects and promotes the constitutionally protected independence and impartiality but you also admit of legislative derogations from that rule, then the scope of the legislative derogations that are constitutionally permissible need to be related to the reasons that underlie the rule. To say that any derogation has to be for an end that is itself consistent with the reason for the rule – independence and impartiality – and to say that the derogation must invoke means that having regard to the impact on independence and impartiality are proportionate to that end, is simply to apply the standard analytical technique that as a matter of constitutional principle is applied in other areas where it is recognised that there is a constitutional limit, but it is not a bright line.

So we are not talking about a reformulation of Kable, we are talking about the application of the Kable principle in a structured way, in a principled way, to a law that involves on its face to some extent a derogation from a normal or standard characteristic of a court. That is what I wanted to say.

GUMMOW J: We perhaps should look at the reasons of Justice Binnie in FN [2000] 1 SCR 880. Have we got that on the list?

MR GAGELER: It is on the list, I think it is even referred to in our written submissions, but ‑ ‑ ‑

GUMMOW J: It is, paragraph 21.

MR GAGELER: If the next question is, do I have it in my hand, I think the answer is, almost.

GUMMOW J: Because it seemed to have concerned rehabilitation of young offenders.

MR GAGELER: Indeed, yes. I think the outcome in that case was that there was insufficient proportionality between the law in the end, but significantly the rehabilitation as an outcome was accepted as a legitimate reason which would justify a proportionate derogation from the ordinary principle. The approach in Canada, as your Honours will have seen from the submissions and the cases referred to in the submissions, is pretty much similar to the position that has emerged in the United Kingdom.

The second Kable point really goes to the submissions put by the defendant and the point is that to confine what is a legitimate end that could justify a proportionate derogation from open justice to the interests of justice or the interests in the administration of justice – Mr Bennett used both of those terms – is, in our submission, wrong in principle and contrary to authority. It is wrong in principle for at least three reasons. One is that in its formulation and in its attempt to gain support from authority it really conflates the constitutionally permitted scope of legislative power with the traditionally understood scope of the inherent jurisdiction of a superior court.

GUMMOW J: Could you say that again, Mr Solicitor?

MR GAGELER: Essentially what he is seeking to do is to derive from statements frequently made – Scott v Scott and elsewhere – about the scope of the inherent jurisdiction of a court for the power absent statute to modify the ordinary incidents of open justice and use those statements as, in effect, a statement of constitutional principle limiting legislative power. Those statements are not expressed as statements dealing with the limitation of legislative power, and in concept there is something different between what a court can do simply by virtue of being a court or a superior court and what a legislature can do in the balancing of competing public interests. That is the first point.

The second point is that – going back to our paragraph 17 argument – the proposition that is advanced is insufficiently anchored in the root constitutional principle, that is, the principle to which it should be anchored is the requirement for the maintenance of institutional independence and impartiality. When that is recognised, an approach along the lines that we suggest is appropriate and an approach that admits of other ends than simply the administration of justice or the interests of justice, however you might try to define that. But the third point is that it simply takes too narrow a view of how the administration of justice by a Chapter III court fits into the other seven chapters of the Constitution, because it has never been the case that judicial power is to be exercised in a traditional manner at any cost and it is not necessary to be exercised in a manner that causes disproportionate harm to some other aspect of public interest.

In the course of his oral presentation, Mr Bennett sought to accommodate an increasingly large number of apparent exceptions to the principle that he sought to articulate. He admitted of an exception for national security. He admitted of an exception for matters of life and death. At one stage he suggested that they were just freestanding exceptions. At another stage he seemed to suggest that they could be themselves treated as somehow going to the interests of justice or the interests in the administration of justice.

In our submission, when you analyse the subject matter of those exceptions that he is prepared to admit, they are really separate aspects of the public interest and the difference between them and the interests that might in a very particular context be protected by notions of privacy or confidentiality are really differences of degree. You are talking about different degrees of harm in different contexts and there is simply no doubt that an infringement of privacy or confidentiality in particular contexts can be the cause of real harm to individuals and to relationships.

In terms of authority, we have provided your Honours with a table of examples of public interests which have been acknowledged in various ways in the cases. I am not suggesting that there is anything there that you do not get from a careful reading of the written submissions of all of the parties and interveners in this case, but we have sought to produce it in a tabular form. I wanted also to remind your Honours of the actual decisions in Gypsy Jokers and in K‑Generation because they sit at least rather uncomfortably with Mr Bennett’s submissions, unless he is prepared to make yet another exception and seek to bring that exception within his general rubric.

Gypsy Jokers is 324 CLR 532 and I just wanted to remind your Honours that the provision that was held to be valid there, it is set out in paragraph 30, of section 76(2) of the Western Australian Act. It said:

“The Commissioner of Police may identify any information provided to the court for the purposes of the review as confidential if its disclosure might prejudice the operations of the Commissioner of Police –

and, of course, your Honours remember the holding in the case was that the question whether the disclosure might prejudice the operations of the Commissioner of Police was an objective question and could be determined by the Court, was to be determined by the Court, put in issue, and once that question was determined in a way that was that objectively the disclosure might prejudice the operations of the Commissioner of Police, then the result, according to the section held to be valid, was that it was not to be disclosed. It was to be used by the Court and not to be disclosed to any other person whether or not a party to the proceedings or publicly disclosed in any way. So the trigger, disclosure might prejudice the operations of the Commissioner of Police; consequence, no disclosure at all.

K‑Generation is really quite similar, if your Honours look to the provision held to be valid there. K‑Generation is 237 CLR 501. At paragraph 139 the provision is set out, section 28A(5)(a). It is too long to read, but if your Honours turn over to the discussion of it in the joint judgment, paragraphs 145 and following, its structure is revealed and its operation is explained. Paragraph 145 says that:

If the decision of the Commissioner of Police to classify material as “criminal intelligence” withstands such a collateral attack, then the trigger to the operation of s 28A(5) remains effective.

Thereafter, and upon application by the Commissioner of Police, the Licensing Court is required to take steps towards a particular outcome. That outcome is the maintenance of the confidentiality of the information . . .

The steps which are taken may go so far as to involve the reception of evidence and the hearing of argument by the Licensing Court in private and in the absence of the parties and their representatives . . .

The result is that s 28A(5) did not operate to deny to the Licensing Court the consequential character of an independent and impartial tribunal –

Turning to the two Lange points, both of them go to the first limb of the Lange test and, to make it abundantly clear, we do not say that the first limb of the Lange test is not engaged in the present case. We have carefully sought not to make any submissions about the facts on the material before the Court. It might readily be said, factually, that the first limb of the Lange test is plainly engaged.

We are simply concerned that it be engaged or not engaged for the right reasons. The first point we want to make is that as it emerges from Lange itself, what amounts to political communication for the purposes of the first limb of the Lange test is limited to communication on a subject that relates expressly or inferentially, structurally or practically to some action or inaction by the Commonwealth Parliament or the Commonwealth Executive for which the Commonwealth Parliament or the Commonwealth Executive is directly or indirectly accountable to the electorate. That flows in our submission from the actual holding in Lange 189 CLR at 567 which actually introduces the two‑stage Lange test, a holding that consciously at that page departs from what was earlier said in Theophanous and Stephens where a wider view was taken by some judges.

HEYDON J: How does that fit in with Coleman v Power – that submission of yours?

MR GAGELER: It is perfectly accommodated within Coleman v Power. There was, of course, a concession in Coleman v Power.

HEYDON J: Yes.

MR GAGELER: The concession was said by Justice McHugh, who examined it, to have been rightly made and he said it was rightly made for reasons that he gave about paragraph 80 and paragraph 81, where although the subject matter of - the direct subject matter of the communication was the action of a Queensland policeman, there was, he said, sufficient interaction between police services to justify the concession that had been made that there was a sufficient connection with Commonwealth – at least Commonwealth Executive action.

HEYDON J: The State and Territory police officers are tied up with the investigation of Commonwealth offences.

MR GAGELER: Yes.

HEYDON J: Perhaps Victorian courts are tied up with the administration of federal laws.

MR GAGELER: Your Honour, I think we have said that in writing. I was about to say it orally. There is no doubt.

HEYDON J: It is marvellous to achieve such consensus with you, Mr Solicitor.

MR GAGELER: It is a two‑way pleasure, your Honour. If your Honours have that report open, your Honours might also look at page 78, paragraph 197 where your Honours Justices Gummow and Hayne touched upon the same concessions. Your Honours said:

It is, however, not necessary to decide the point.

But in the second‑last sentence of paragraph 197 it is said:

Given the extent to which law enforcement and policing in Australia depends both practically, and structurally –

Quite useful words -

upon close co-operation of federal, State and Territory police forces, there is evident strength in the proposition that an allegation that a State police officer is corrupt might concern a government or political matter that affects the people of Australia.

Clearly enough, one can say structurally there is a great deal to be said for the view that a communication about the appropriateness of a State court jurisdiction is structurally linked to the suitability of the State court as a repository through Commonwealth legislation of the federal jurisdiction.

What we have said in this respect, your Honours, is really just a reflection of what has been said by Justice McHugh repeatedly in cases post Lange about the meaning of the Lange test. I have referred to what he said in Coleman v Power. Your Honours might also pick up what he said in Levy 189 CLR 579 at page 626 and what he said in APLA 224 CLR 322, particularly at paragraphs 64 and 65. There is also a very proper application of the same approach in the judgment of Chief Justice Spigelman in the John Fairfax decision to which reference was made yesterday. That is 181 ALR 694 at paragraphs 80 to 99.

Your Honours, that is the first of the two Lange points we wanted to make. The second of the Lange points is a fairly short one. There is a suggestion in the submissions of the informant at paragraph 70, and there was a repetition yesterday orally, of a proposition that a law imposes no effective burden on political communication if a political message can still be imparted by other language without infringement of the law. In our submission, that is an incorrect understanding of the first limb of Lange and it is really quite inconsistent with the analysis that you see in Levy of non‑verbal conduct and the analysis that you also see in Coleman v Power about the use of what might be described as “fighting” words.

The true position, in our submission, is that a communication that is in fact political, that is made in a way that is in fact prohibited by the law, is a communication that is effectively burdened by the law and the consideration behind the informant’s submission that the law only burdens incidentally a particular chosen form of political communication is a point that goes not to the fulfilment of the first limb of Lange but to the strictness of the test to be applied, or the strictness of the application of the test in accordance with the second limb of Lange. You see a lot of discussion along those lines in Levy. If I could take your Honours very, very briefly to

Levy 189 CLR 579 at 625, Justice McHugh said, about point 8 of the page that:

It is beside the point that their arguments against the alleged cruelty of duck shooting could have been put by other means ‑

In the same case, at page 614 – we have given a reference in our written submissions, I think, to Justice Gaudron in this case but, in addition, at page 614 in the joint judgment of Justices Toohey and Gummow there is at the end of the first sentence a footnoted reference, footnote (123) to Cunliffe 182 CLR 272. There is a very useful discussion in Cunliffe in the judgment of Justice Deane. At page 339 Justice Deane usefully draws a distinction between a case where – if your Honours have it – he says in the second sentence of the full paragraph that political communication may be burdened:

where the law prohibits or regulates a particular type of communication or discussion which is neither inherently political in its nature nor a necessary ingredient of political communication or discussion –

but that the test or fit or proportionality is a looser one in that case than where the subject matter of the prohibition is inherently political and, in our submission, that is the way in which the concern underlying the informant’s submission is to be accommodated here in the application of the second limb, not in taking the case outside the first limb. Then finally in this regard, I am happy to say that everything I have said is, as I read it, entirely consistent with your Honour the Chief Justice’s judgment in Brown v Members of Classification Review Board 82 FCR 225 at page 238. If the Court pleases, they are our submissions.

FRENCH CJ: Thank you, Mr Solicitor. Yes, Mr Meadows.

MR MEADOWS: May it please the Court. As a preliminary matter, we have arranged for a replacement of page 10 of our submissions to be made available to the Court. It is to correct an error in the fourth line where reference is made to “video images” when it should have read “the identities”. I trust that your Honours have that replacement page?

FRENCH CJ: Yes.

MR MEADOWS: At the outset I want to raise one other issue. Both the defendant and the informant have eschewed any reference to an implied limitation on laws burdening political communication deriving from the Constitution Act 1975 (Vic). My learned friend, Mr Bennett, says he relied on it; I do not recall him doing so, but leave that as it may, in our submission, as a result of amendments that were made to the Constitution Act in 2003 the previous view of the effect of that Act may no longer prevail, such as what happened in Levy.

You may recall, your Honours, that in Levy 189 CLR 579 it was considered unnecessary to decide whether the text or structure of the Victorian Constitution carried with it an implied limitation as to laws burdening political communication when it came to matters solely concerning State law. The Court has similarly declined to consider the issue in relation to the Constitution Act (SA) in Muldowney v South Australia 186 CLR 352, Roberts v Bass 212 CLR 1 and the Queensland Constitution in Coleman v Power 220 CLR 1. All of those cases, apart from Coleman v Power, predate the amendments to the Constitution Act (Vic) in 2003.

The Court will recall that in Stephens v West Australian Newspapers 182 CLR 211, it was held that section 73(2)(c) of the Constitution Act (WA) 1889 necessitated the finding of an implication on similar terms in that Constitution. That section provides that:

A Bill that . . .
(c) expressly or impliedly provides that the Legislative Council or the Legislative Assembly shall be composed of members other than members chosen directly by the people . . .

shall not be presented for assent by or in the name of the Queen unless –

the Bill is passed by absolute majority and have been approved by the electors. The Court there, in a majority judgment, held that such words meant that there was an implied freedom of political communication in Western Australia applying to State legislation, and if I can refer to what their Honours Chief Justice Mason and Justices Toohey and Gaudron said at page 232, they said:

there is an implied freedom of communication deriving both from the Commonwealth Constitution and from the State Constitution which applies in the present case. First, we consider that the freedom of communication implied in the Commonwealth Constitution extends to public discussion of the performance, conduct and fitness for office of members of a State legislature.

As I have said this was based on the text of section 73(2)(c). Justice Brennan, as he then was, at page 235 also held that ‑ ‑ ‑

GUMMOW J: How does this bind – are we not in a world of manner and form?

MR MEADOWS: I am not suggesting that it binds the Court. What I am suggesting ‑ ‑ ‑

GUMMOW J: No, binds the Parliament.

MR MEADOWS: I beg your pardon?

GUMMOW J: It binds the successive Parliaments.

MR MEADOWS: Yes, it does, in Western Australia. It is, indeed, a manner and form provision but it is said to give rise to the existence of this implied limitation on legislative and executive power.

GUMMOW J: I am just looking at section 6 of the Australia Act.

MR MEADOWS: Yes. Well, that was all covered, if I might say, in Marquet’s Case. I am not suggesting that it is anything other than a manner and form provision, but it has this effect in terms of an implied limitation on legislative power. The point that I am seeking to get to is that as a result of these amendments to the Victorian Constitution in 2003, we find that in section 26(2) there is a provision which says:

The Council is to consist of 40 members who are to be representatives of, and elected by, the electors of respective regions.

In section 34 we find that:

The Assembly shall consist of members who shall be representatives of and be elected by the electors of the respective districts.

Section 18(1B)(b) and (d), which, as I say, was inserted in 2003 by Act No 2 of 2003, section 17(2), provides that a Bill which repeals, alters or varies, inter alia section 26(2) and 34, can only be presented for assent of the Governor if:

the Bill has been passed by the Assembly and the Council and approved by the majority of the electors voting at a referendum.

In section 18(3):

Any Bill dealing with any of the matters specified in subsection (1B) which has not been approved in accordance with that subsection is void.

FRENCH CJ: I am sorry, I do not quite understand the core of the submission. Are you contending that while there may be an implied freedom of political communication derived from certain provisions of the State Constitution of Western Australia, there is no such implication in relation to the Victorian Constitution because of changes that have occurred?

MR MEADOWS: No, the other way round.

FRENCH CJ: Yes, I am sorry.

MR MEADOWS: The other way round. Your Honour, let me make this clear. I am not contending for anything. I am simply drawing the Court’s attention to the existence of these provisions and suggesting that it could mean that there is in Victoria a similar limitation on legislative power arising from the existence of these representative democracy provisions in sections 26 and 34 and the entrenchment of those provisions through section 18(1B).

FRENCH CJ: So it is an entrenched implication, in effect?

MR MEADOWS: That is the basis upon which the Lange limitation was derived. We are only bringing this to the Court’s attention because we feel duty bound to point out these amendments in 2003 which have changed the landscape since what occurred in Levy and the other cases to which I have referred.

FRENCH CJ: This is really a matter for the Victorians, is it not?

MR MEADOWS: Of course the Attorney-General for Victoria is not here and ‑ ‑ ‑

GUMMOW J: Good idea to turn up.

MR MEADOWS: I beg your pardon? I am sorry, I missed that.

GUMMOW J: It is a good idea to turn up if you are a State Attorney and there is this sort of case in the Court. You are here.

MR MEADOWS: Yes, I know I am here. I am more than conscious of it. As I say, my purpose is simply to draw it to the Court’s attention and to suggest that it may well be that the Court will have to look at that question.

GUMMOW J: Well, Mr Bennett says he relies on it.

MR MEADOWS: Well, apparently so, your Honour. There is a useful discussion of the issue in Mr Greg Taylor’s book, The Constitution of Victoria, at pages 291 to 295 where he concludes that these provisions do carry with them an implied limitation on the power to make laws burdening political communication in Victoria independently of the implication in the Commonwealth Constitution and I simply mention that as a reference. The other matter which I would ‑ ‑ ‑

GUMMOW J: Well, we had better have copies of those papers, had we not?

MR MEADOWS: Certainly I can provide that, your Honour, yes. I suppose, in a sense, what I have just said is a statement against interest so far as Victoria is concerned and perhaps also the case in respect of my own State. There is one other issue in this connection that I wanted to refer the Court to and that is that in terms of the implication arising from the Commonwealth Constitution, we would suggest that it may be difficult to argue that the limitation, the Lange limitation arising from the Constitution, does not apply to the Serious Sex Offenders Monitoring Act and that is because, if you go to the Schedule of that Act at pages 67 and 68 of the print and see items 35 through to 39, one can see that these supervision orders can be made against offenders who have been convicted of offences under those Commonwealth Acts.

GUMMOW J: On the face of it, that is invalid, is it not?

MR MEADOWS: It might be an overreach by the Victorian Parliament, but be that as it may, it does provide a connection with this legislation and the Commonwealth Constitution.

GUMMOW J: Unless there is something in the Commonwealth statute law that somehow adopts this, or picks it up in some way.

MR MEADOWS: Yes, there is a provision, as I recall it, in the Crimes Act that says that the provisions of that Act, at least, are not intended to exclude State laws. I only mention it for completeness. If I could just turn then to our written submissions; we of course adopt our submissions and those of South Australia, for whom I also appear, and we apprehend that the South Australian submissions are substantially consistent with those of ourselves. The effect of those submissions is that a State Parliament may legislate to confer power on a State court to order that evidence or the identity of parties or witnesses may not be published where the court is satisfied that it is in the public interest to do so.

There are two aspects of our submissions that I wish to direct specific submissions to. The first is that a provision such as section 42 does not so alter the Constitution or character of the Court that it ceases to meet the constitutional description of a supreme court or a court of a State which may be invested with federal jurisdiction, and the second is that a provision such as section 42 does not infringe any constitutional limitation on the power of State Parliaments to make laws which have the effect of burdening communication about political or government matters.

The first of those propositions directs attention to the open justice principle and we would accept what the Commonwealth has said that the open justice principle is not a defining characteristic of a court and that the test is one which goes to the institutional integrity of the court and of the court as an independent and impartial tribunal, and that the principle of open justice is an aspect that needs to be looked at in the context of determining whether that imperative has been infringed.

Reference has been made to John Fairfax & SonsvPolice Tribunal of New South Wales (1986) 5 NSWLR 465, and the judgment of Justice McHugh at 476 to 477, and to what Chief Justice Spigelman said in John Fairfax Publications v Attorney‑General (NSW) (2000) 181 ALR 694, paragraph 70, as providing an illustration of the acceptance of the proposition that the Parliament may provide for modifications to the open justice rule where it is in the public interest.

We draw attention as well to a recent case in Western Australia of Re Hogan; Ex parte West Australian Newspapers which is unreported at this stage but it is [2009] WASCA 221. Now, I will not take your Honours to the detail of that case, but it does carry with it an acceptance that it is open to the legislature to modify the open justice rule where it is, in that case, in the interests of justice to do so, or in circumstances where it is just. I refer to what the President of the Court of Appeal, Justice McLure, has said at paragraphs 30 to 35 of her judgment and also where she recognised at paragraph 40 that the provisions in this particular case departed from the common law.

HEYDON J: Am I right in thinking this is an ex parte judgment? There was no representation for ‑ ‑ ‑

MR MEADOWS: No, there was not, your Honour.

HEYDON J: There were only the appellants who were there.

MR MEADOWS: I am sorry. I missed that.

HEYDON J: Am I right in thinking that it was only the appellants who were involved in this litigation, or were there, in fact, respondents as well?

MR MEADOWS: That is so. But the judgment is actually against the appellants.

HEYDON J: Yes.

MR MEADOWS: Well, it is not as though it was an easy ride for the appellants to get a judgment in these terms. If anything, the court seems to have acted as contradictor. I was going to refer to what Justice Owen said at paragraphs 49 to 51 as well. Our submission is that a court is not deprived of one of its defining characteristics by a provision that empowers a court to sit in camera or to restrict the publication of proceedings in appropriate cases. Nor is it so deprived by a provision that restricts publication of proceedings to the extent appropriate to serve a public interest which the Parliament has sought to protect. We are prepared to accept that different considerations might arise if a provision required a court to invariably sit as a closed court. Of course, Russell v Russell is a case which deals with that particular issue.

We do, however, take issue with the Commonwealth submissions in relation to their appropriate and adapted submission. The Commonwealth has identified as an ordinary incident of the exercise of judicial power by a court that it occurs in a proceeding that is open to public scrutiny. The Commonwealth submits that to be constitutionally justified, a departure from that ordinary incident must be for an end that is consistent with the independence and impartiality of the court. In addition, that departure from that ordinary incident must go no further than is either reasonably appropriate and adapted or necessary to the achievement of that end.

In our submission, the Commonwealth’s submission on this point should not be accepted. It is true that a proportionality test of this kind has been applied to purpose of heads of legislative power and Lange is an example of that. It has also been applied in the context of section 92 in Betfair v State of Western Australia (2008) 234 CLR 418 where both of those examples the Court accepted that the constitutionally protected activity in the first instance, communication about political matters, and the second, interstate trade, may be subject to regulation by an appropriate law.

We would submit that in contrast the limitation identified in Kable is concerned with laws which alter or remove a defining characteristic of a court or which authorise a court to engage in activity which is repugnant to the judicial process to a fundamental degree. This is covered at paragraphs 4 to 6 of our written submissions. In our submission, a law that has that incidental effect cannot be constitutionally justified by the pursuit of some other end. The presence of those characteristics, we would submit, is an absolute constitutional imperative which is not subject to any form of reasonable regulation. If a State law deprives a court of those defining characteristics, it does not matter why it does so. There is no room, we would say, for an appropriate and adapted or necessity test.

We would suggest that the approach of Justice Gibbs in Russell v Russell 134 CLR 495 has much to commend it and, in particular, what he said at page 520 of the report, a law which required a court to invariably sit in a closed court may well be of doubtful validity. It is not necessary to resolve that question in these proceedings, but what we would draw from the case is that the character of a court is not altered by a law which empowers it to sit in closed court or by extension restrict publication of its proceedings in an appropriate case.

In our submission, Parliament may confer a jurisdiction defined by the court’s view of what is an appropriate case, and that is what is the situation in relation to the impugned provision in this matter. Alternatively, Parliament may itself define the cases in which publication is to be restricted, as has occurred in relation to the Family Law Act. The critical question in either case is whether an open hearing is the exception or the norm, that is as Justice Stephen put it in Russell v Russell at page 532, does the law establish a tribunal which as of course conducts its hearings in closed court as opposed to a tribunal which habitually conducts its proceedings in open court? From that we say the constitutional test does not require an assessment by the court of the reasons for the exception.

The question for the court is whether the operation and effect of the law is incompatible with the constitutionally mandated independence and impartiality of State courts and a law which invariably required a court to sit in camera, may be incompatible, however, the constitutional question is concerned with the operation and effect of the law rather than its object. A law which impairs the independence and impartiality of the court is invalid, whatever the reasons are for its imposition. So we would submit there is no occasion to consider whether the law is appropriate and adapted or necessary to the pursuit of some other end.

So far as the validity of section 42 is concerned, we would refer to our written submissions in that regard. It is important to note that the provision does not empower the closing of the court. It does not require the court to order that material not be published in specified circumstances or to a specified extent. It is for the court to conclude that it is in the public interest for an order to be made, and if we could refer more particularly to what South Australia has said in its written submissions in paragraph 37 and around that area.

So section 42 authorises only those restrictions which serve the public interest which the court has identified and considerations such as the open justice principle will inform both that decision and as to whether a suppression order should be made and the decision as to the manner and extent to which the publication is to be restricted. So we would submit that on any view section 42 is not contrary to Chapter III of the Constitution.

If I could just turn finally to the freedom of political communication, as it is called, and perhaps restate the obvious, that what is often described as an implied freedom of political communication is properly understood as a limitation on legislative power, a point which your Honour Justice Gummow made yesterday and the same point is made by your Honour Justice Hayne in APLA v Legal Services Commission 224 CLR 322 at page 451 in paragraph 381. The point is that the Constitution itself does not confer any right to communicate. Perhaps the most profound observation in Lange v Australian Broadcasting Corporation 189 CLR 520 appears at page 564, where it is said:

Under a legal system based on the common law, “everybody is free to do anything, subject only to the provisions of the law”, so that one proceeds “upon an assumption of freedom of speech” and turns to the law “to discover the established exceptions to it”.

What that means is that there is under the common law freedom to speak about political and governmental matters. What the Constitution does is to prohibit legislation which unduly burdens that freedom to speak. So the expression “freedom of political communication” is really a shorthand for a reference to an implied limitation or prohibition on legislative and executive power and, in a sense, it is a shorthand for that particular prohibition or limitation. I will not go through the other aspects of the judgment in Lange which develop that particular limitation or prohibition, but we come to the point that whether or not the first test in Lange has been met, there can be no question, in our submission, that the section is valid as it is reasonably appropriate and adapted to achieving a legitimate end which was identified in the legislation itself.

FRENCH CJ: Do you base that on the premise which I think appears in the constructional approach taken in South Australia’s submissions that it is confined to publication other than private communications?

MR MEADOWS: Yes. We would suggest that it is directed to publications beyond, say, a reference to some of the examples were given yesterday as to what might well be permissible without infringing a suppression order which had been made under section 42. The important thing, in our submission, is that the power to make such an order is conferred on a court which is required to make an evaluation of where the public interest lies and the evaluation and balancing of competing aspects of the public interest is a task familiar to courts and we would submit that when the court properly performs its function in relation to this power, it

will act consistently with any constitutional limitations on the State’s power. It would not, for instance, be open to the court to conclude that there was a public interest in political communications being prevented and make a non‑publication order under section 42 for that reason. May it please the Court, they are our submissions.

GUMMOW J: Mr Solicitor, just before you go, could you explain again what you see is the difference between yourself and the Commonwealth?

MR MEADOWS: The difference is that we see no place for a reasonably appropriate and adapted test to be applied to a law which is repugnant to the institutional integrity of a court. Obviously when looking at that law one has to decide whether or not it does affect the institutional integrity of the court and, in our submission, if you get to that point and you do not have to look at whether it is reasonably appropriate and adapted to some other purpose, if you get to that point, then the law itself is unconstitutional. If it please the Court.

FRENCH CJ: Thank you, Mr Solicitor. Yes, Solicitor for New South Wales.

MR SEXTON: Your Honours, two short points, one concerning the construction question and the other concerning Lange. On the construction question, in our written submissions at paragraph 7 we suggested a more confined construction of section 42 than that contended for by the informant and presumably also by the defendant and one of the problems about the broader construction contended for is that not only would it prevent publication of a conviction, for example, 20 years earlier, the original conviction, for example, but that seems to us it would also prevent the reporting of a fresh offence, for example, a sexual assault offence that was committed by the offender while under the extended supervision order.

So that for a number of reasons, it seems to us, and this was canvassed yesterday in discussion with the Bench, it seems to us that the narrower construction is to be preferred in this case and we have set that out in paragraph 7 of our written submissions. I will not take your Honours to that now, but your Honours are aware of the choice between the two constructions.

Your Honours, on the Lange question, there has been some difficulties, it seems to us, in the application of the two limb test that is set out in Lange. One of the reasons may be that it has not had to be considered in a lot of the cases that are followed from Lange. Quite a number of those cases, and particularly intermediate courts, have gone off on, in a sense, the threshold question of whether there is in fact a discussion in the particular case of government or political matters and that in a sense gives rise to the question of what is the subject of discussion in these proceedings.

Of course, it can be described in a number of ways at different levels of generality. One possibility is that the subject of discussion is the names of sex offenders. A second possibility is that it is the conferral by a State Parliament of a particular power on a State court. Another possibility is that it is a discussion of the proposed or the advocated repeal of a State law concerning the extended supervision orders.

At any rate, however one characterises the subject of discussion, here we would say that none of them have a sufficient nexus with the relevant provisions of the Constitution that were nominated in Lange so as to engage the implied freedom of communication. Insofar as the Commonwealth’s submissions at paragraph 26 suggest to the contrary, at least in relation to that category or description of a conferral by a State Parliament of a power on a State court, we would say that the connection is too tenuous and that that would not engage the implied freedom.

Your Honours, if, however, which we say is not the case here, one were to pass that threshold test in relation to a subject of political discussion, the application of the two limb test in Lange would then be engaged. It may be that the application of that test depends, at least to some extent, on the kind of law that is in question. One possibility in terms of the kind of law is where there is a legislative regulation of a particular category of publications, for example, defamatory material or material that is alleged to be in contempt of court. Arguably, the law in those two areas does not impose a burden on the freedom because they contain an inbuilt balance between, in the case of defamation, freedom of speech and the projection of individual reputation, and in the case of contempt, freedom of speech and the protection of the administration of justice.

It would, however, be possible to analyse those areas alternatively by saying that they do impose a burden but that the laws are reasonably appropriate and adapted to serve a legitimate end in a manner that is compatible with the maintenance of a constitutionally prescribed system of representative and responsible government. It would certainly seem to follow from the decision in Lange itself that once the common law defence of qualified privilege was adapted in that case to meet the requirements of the freedom of communication that there was no contravention then of the freedom by the law as it was reformulated.

Another possible kind of law is that that was considered by this Court in Coleman v Power, it was a general provision creating an offence for one or more categories of publications. The relevant provision there, the Queensland provision, prohibited the use of, amongst other things, insulting

words. Justices Gummow, Kirby and Hayne were prepared to assume that this provision was capable of burdening the implied freedom but that it was reasonably appropriate, adapted, et cetera. Justice McHugh considered that the reference to insulting words was invalid but presumably a law of this kind that did contravene the implied freedom could be, to that extent, read down under the relevant interpretation legislation, which is what Justice McHugh did in that case.

A third kind of provision is one that embodies a judicial discretion as to whether a court order might be made that affects publications or communications and the current provision in this case is obviously an example - another example of the Rules of Court in most jurisdictions that allow preliminary discovery to identify a defendant insofar as they might, in some circumstances, deal with confidential information provided to journalists on a subject of political discussion.

In making such an order the courts would be required to take into account whether or not it was in the interests of justice and also that includes the principles of the newspaper rule referred to in this Court in Cojuangco (1988) 165 CLR 346. It might be argued again that this kind of discretion means that the relevant provision places no burden on the implied freedom or, alternatively, again, that the law is reasonably appropriate and adapted, et cetera.

There would be no contravention of the implied freedom, we would say, unless the basis on which the discretion was to be exercised was somehow inconsistent with the implied freedom. The basis of the discretion in this case is of course the public interest and we would say that that is not inconsistent with the implied freedom - as Mr Kirk says, as informed by section 15 of the relevant legislation as well. If some aspect of the discretion were found in a particular case to be inconsistent with the implied freedom then presumably the discretion itself could be read down so that it could not be exercised on the basis that would lead to a contravention. Unless there are any other matters, your Honours, those are our submissions.

FRENCH CJ: Thank you, Mr Solicitor. Solicitor‑General for Queensland.

MR SOFRONOFF: Your Honours, could I make some brief submissions about the construction of section 42 in the hope that your Honours will find it helpful in construing the provision, having regard to some of the argument yesterday. Could I ask your Honours to go to that section? Would your Honours notice that sections 42(1)(a), (b) and (c) have these differences.

Subsections (a) and (b) authorise the court to prohibit the publication of distinctly specified material. That is to say, the material will be identified in the order as all of the evidence or some of the evidence, or a report will be identified or part of the content of the report will be identified and consequently the offence will be committed merely by the publication of that which ought not be published. Section (c) is different because it does not say, for example, as it might have done, the court can prohibit the publication of the name of the offender. Rather, the key word – there are two key words – the first is “identified” and the second, although it appears earlier, is “offender”. So what that subsection authorises is for the court to prohibit the publication of a category of information which has the character that it might enable an offender to be identified.

We have caused to be handed up to your Honours photocopies of the definition of “identify” in the Oxford English Dictionary, Second Edition, and in the Macquarie Dictionary, Revised Third Edition. If I can invite your Honours to go to the Macquarie Dictionary. The first meaning in our submission is the relevant one:

to recognise or establish as being a particular person –

So what the section does is to authorise a court to prohibit the publication of information that might cause someone to be recognised as being a particular person and the question arises, why would the legislature do that in this Act? The answer, in our submission, is this. The Act establishes a regime under which a released offender might be subjected to an intrusive monitoring regime and as well rehabilitation. Both of those two things are done in aid of the public safety in an attempt to prevent further offending by that released offender.

But the point is that that is sought to be achieved by imposing such a regime by court order and therefore one can see, in our respectful submission, that section 42 is there in order to be invoked if necessary to vindicate the court order. The court order can be frustrated. A court order of this kind can be frustrated in a number of ways. But one way we know from experience, and that is an experience recorded in Ferguson’s Case, is that once an offender is identified as a sex offender then vigilantism can arise and the words “angry mob” were used by the judge at first instance in Ferguson. It was a notorious case in Queensland where the man was pursued everywhere he went, when he was identified as living in the area. He had a distinctive appearance. It was very easy to pick him after his photographs.

FRENCH CJ: This rather goes to a question I think I might have put to Mr Silbert or Mr Bennett yesterday. If one sees “identified” in those terms, it is the information that might lead to a particular person being identified as a person by name X who was an offender.

MR SOFRONOFF: Yes.

FRENCH CJ: That would not authorise on that construction, would it, prohibition of publication of the fact that Mr X had been convicted however long ago of one of the offences in the schedule, had been sentenced to so many years of imprisonment and had been released.

MR SOFRONOFF: It has nothing to do, in our submission, with seeking to prohibit the publication of information that a man named “Such and Such” was found guilty of an offence and has been convicted and is about to be released.

FRENCH CJ: Is the logical consequence of that that it would not prohibit the publication of the fact that a man named “So and So” had had an extended supervisory order made in relation to him?

MR SOFRONOFF: Exactly. What it seeks to do is to use criminal jargon: you cannot finger somebody as being that man. That is why, rather than prohibiting merely the ‑ ‑ ‑

FRENCH CJ: For example, by giving his address.

MR SOFRONOFF: By giving his address, for example, or saying, whether in the media, through a public medium, or privately, “The one living in that house – he’s that sex offender”. You do not have to use the name then if you identify him as an offender. Read in that light then, all the difficulties fall away because the order, of course, would bind the offender himself. He too will not be allowed to publish information that might enable an offender, himself, to be identified. Yet, of course, that person must identify himself from time to time by name. He just cannot identify himself as an offender in case it leads to the circumstances that might frustrate the order.

FRENCH CJ: What about if he is applying for a job and has to disclose ‑ ‑ ‑

MR SOFRONOFF: I would have to think about that, your Honour. I would have to think about the consequence there. But leaving that exception, which might be troublesome aside, and which might raise issues of de minimis in the question whether anybody would ever be concerned about that and also whether such a disclosure might be authorised by the terms of the regime to which he is subject, leaving that aside, it would allow that person to use his own name, provided he does not publicise himself as an offender, and it would allow anybody else to use his name provided it does not identify himself as an offender.

So the mere discussion of his case will not be apt to identify a particular person as an offender. The mere mention of a name may or may not, in the context of an article about somebody as a sex offender – could I ask your Honours to go to the applicant’s, Mr Hinch’s, submissions, because his articles can exemplify the kinds of things that arise. I am referring to the articles that are annexed to the submissions. If your Honours would go to the second article, annexure B, the first few paragraphs deal with the case of a particular offender and the issues that arise from the execution of the legislation. Just below halfway there is the sentence:

The despicable human being he was talking about – and I’ll try to name him – is [XXX].

And then his wife’s name is mentioned. That may or may not identify a particular person as a sex offender. It certainly names that person as a sex offender, but it is a common enough name and it may not identify any person as a sex offender, there being conceivably in this country many [Xs].

On the other hand, if your Honours go to the first article, the name which appears in the first paragraph is sufficiently distinctive, at least the surname is, that an offence might have been committed in respect of that, but it would be matter of fact for the tribunal determining the offence whether a particular person has, or has not, been identified. The short point, in our respectful submission, is that the provision is there in order to protect the efficacy of the order and for no other purpose. It is apt to be invoked when the public interest justifies it. The term “public interest” must be informed by the content of the Act. The “content of the Act” is directed to, we know, an attempt to prevent future offences by the imposition of a regime.

Could I take your Honours to the reasons of her Honour Judge Millane which further exemplify how that view of the purpose of section 42 commends itself? Your Honours will find it in the decision of Justice Osborn in Hinch v County Court of Victoria [2009] VSC 548. I go there because Justice Osborn set out passages from Judge Millane’s reasons and if your Honours would go to page 8. At page 8, paragraph 27 – and these are quotations from her Honour’s reasons – she refers to the main purpose as set out in the statute, and in the first sentence of the next paragraph she repeats that and puts it in different terms.

Then at paragraph 31 she observes that the principle of open justice, its observance might, in a particular case, “frustrate the purposes of the Act”, and her Honour might have said frustrate the order which can be made pursuant to the Act. If your Honours go over the page to page 11, in paragraph 14 her Honour had observed that it is necessary to suppress publication of certain things and all of that is directed towards ensuring against the identification of a particular human as the sex offender of that name, not merely mentioning his name in circumstances where, as in a law report, for example, as in this Court where I saw the name of the offenders has been redacted, but to no point, because it is hardly likely that the publication here would serve to identify a particular person living in Victoria as that offender. Then finally, your Honours, at the foot of page 11 in paragraph 18, her Honour resolved to:

grant the application to make a permanent order . . . suppressing the content of –

certain documents and the reason at the top of page 12 is that:

the publication . . . could frustrate the interest the pubic has in the process established by the Act –

established by the Act by virtue of a court order. Consequently, your Honours, there is no need to ask is it the naming of a person as the subject of an application or is it the naming of a person as offender? It is, in our submission, the naming of a person as offender in such a way that it might tend to identify the person and, of course, naming the person as the subject of such an application might do that because that necessarily identifies that person as an offender.

HAYNE J: Can I just go back a moment then to where you began, and that is with dictionary meanings. If we go to the OED, the core sense is to make identical with, but that presupposes comparison.

MR SOFRONOFF: Yes.

HAYNE J: When you go to meaning 2a, which is the meaning, I think, upon which this part of the argument depends:

to determine or establish the identity of –

But it is the next one –

to ascertain or establish . . . who a given person is-

MR SOFRONOFF: Yes.

HAYNE J: You are emphasising the notion of “given person”, that is, comparison is at the heart of this aspect of the submission. Is that right? Do I capture it?

MR SOFRONOFF: Yes, your Honour, it is. That is what I am saying. For that reason, if a book had been published about Mr [X]’s offences, the making of the order does not stop its continued publication, unless it could be said, on the facts of the case, that that information might identify him. Those are our submissions, your Honour.

FRENCH CJ: Yes, thank you, Mr Solicitor. Yes, Mr Bennett.

MR BENNETT: Your Honours, a number of our learned friends have made different submissions about the construction of section 42. The last one, the one put by our learned friend Mr Sofronoff, seems to involve some very surprising distinctions. One can publish all one likes about a serious sex offender called John Smith. One cannot publish all one likes about a serious offender who has an unusual and perhaps unique name. The question of identification of the person would, in the context of this section, be such an unusual meaning that one would have thought if that was intended, the Act would have said that.

HAYNE J: Using what words, Mr Bennett?

MR BENNETT: Perhaps using these words, your Honour. One may not publish information that might enable a particular person to be identified as being the person who previously committed an offence. One still has to come back to that. My learned friend says that one of the offenders is someone who has a very common name. He says there are lots of [Xs] so there is no particular problem there. One might have thought it was worse for the innocent ones.

The distinction drawn is a very fine one and one which we submit would not be found. Words could have been used to make that distinction clear. That might be very relevant if the offender had changed his name, the question of identifying the person with the new name with the person with the old name.

Your Honour, it is in the context, we would submit, a narrow meaning of the word. Ultimately, one has to answer the question, “Does one mean identified as the person who committed the relevant offences and was convicted of them or does one mean as the person in relation to whom an extended supervision order has been made?”

We respectfully adopt the submissions made by – I think it was – I am sorry, by one of my learned friends – which said that as a matter of commonsense what possible reason could the legislature have had for wanting to suppress the fact that an extended supervision order had been made in relation to a person but not the fact that the person had been convicted of serious sex offences.

That really would be a whimsical desire for the legislation to have and one would not, in my respectful submission, read it that way. We respectfully adopt what your Honour the Chief Justice said on that subject in the International Financial Trust Case at paragraph 42. I will not take your Honours to it but your Honour said, in effect, that one is not required to strain the language of a provision in order to make it constitutional. It is valid or invalid or it is read down but one does not strain the language to achieve that result. In my respectful submission, to limit it in the very narrow way suggested to publication of the fact of a suppression order would be to do just that.

HAYNE J: I suspect that the competing constructions that are offered against you either are, or at least include these, that rather than observing as we do in 42(1)(c):

any information that might enable an offender . . . to be identified –

you do not know who is doing the identifying - the competing constructions may be that would permit others to identify the offender - by that I mean the particular John Smith who lives at 123 Smith Street, Smithsville - as the person who is the subject of application for extended supervision order – one construction.

MR BENNETT: Yes.

HAYNE J: A competing construction, I suspect the competing construction, is that would permit others to identify John Smith who lives at 123 Smith Street, Smithsville as the person who committed the offences in question. Do you say there is a third competing possibility?

MR BENNETT: Yes, your Honour, there are four which fit in four quadrants, if one likes, of an imaginary square.

HAYNE J: I did not get that far, Mr Bennett, yes.

MR BENNETT: Yes. Well, your Honour, there are two possible criteria and each can be applied to the other. First, it could mean identify that John Smith, that the person with that name, not the specific person living in Smith Street, but that a person named is a serious sex offender and has had convictions for it. The second is that that person is the subject of an extended supervision order. The third is that the particular flesh and blood person at the particular address is a serious sex offender, and the fourth is that that particular person is a subject of an extended supervision order. So there are, in effect, four constructions although no one has yet put it in that manner.

We submit that the correct construction is that the prohibition operates to prevent a person disclosing that a person of a particular name has been convicted of the relevant offences and that, we submit, is a natural way to read it and the correct way to read it. It is probably not affected by the Victorian Charter. One could argue that the freedom of speech principle favours the less restrictive extent of the order and that the privacy principle favours a more restrictive construction of what the order does because in a sense both principles might ultimately be relevant whichever construction one adopts.

In the present case what has been done clearly falls within the categories at the top of the box, and not the two categories in the second part of the box. We have not done anything to identify a particular flesh and blood person as being the person who was either the subject of an order or the subject of a conviction; we have identified a person of a particular name as that.

If my learned friend the Solicitor for Queensland’s submission is right, whether the offence has been committed would depend upon how common the particular name is and one could make a number of submissions about how that might affect my learned friend and myself. But, in my respectful submission, that just cannot be the test.

It is difficult to think of any possible reason why the legislature would want to say you may disclose that this person before the court has committed serious sex offences, but he is to be protected from the disclosure of the fact that there is a supervision order in relation to him. The very idea is such nonsense that one cannot, in my respectful submission, attribute it to a rational legislature, and leaving aside questions of constitutionality and the various other principles involved. But whichever of the rules is adopted, whichever of the four boxes is selected, and I deal specifically with the ones talking about non‑disclosure of the fact that an extended supervision order has been made, there is a serious violation of both the open courts principle and the Lange principle.

In the context of a political campaign along the lines of the debate which was referred to in my learned friend for the informant’s submissions in Fardon, your Honours recall that he began – my learned friend, Mr Silbert – by referring to paragraph 9 of Fardon where there was a general statement about the political controversy concerning what is to be done with serious sex offenders who are deemed likely to re‑offend on their release.

It is a problem which has exercised the minds of legislatures in Australia and in the United States and elsewhere in the world as we know. It is a matter of intense political controversy and it is that controversy into which my client has somewhat heavily weighed. He is, as your Honours know from the evidence, running a political campaign for the repeal of the relevant provision on the basis of taking one side in that controversy. What, we ask rhetorically, could be more political than that?

We point to the statements in Re BBC and elsewhere about the importance of being able to use a name. We ask rhetorically this. If your Honours look at the website articles attached to our submissions and ask would those articles be less effective if the names were blacked out in some way, and the answer is clearly not. The use of the oratorical device of getting a crowd of a thousand people to chant names which have been suppressed by a court is a very powerful oratorical device, no doubt.

That is what freedom of political communication is about. It is far more direct than the protesting of the kind that was involved in the Duck Shooting Case and it is perhaps analogous to the flag burning cases which I have taken your Honours to where one protests against a law prohibiting flag burning by burning a flag.

The Act strikes at a conduct which is necessary, certainly useful, in relation to the very political controversy which the Act raises. As I said before, my learned friends gave the example of theft and said you could not engage in theft and say you were within the freedom of political communication because you were protesting about a law against theft. The analogy is not that. The analogy is the law against theft, which also says, “And no one may criticise or advocate repeal of this law”. One might well protest against that legislation by criticising the law and advocating its repeal and that would be protected.

This is not the prohibition of publication in some abstract area where very incidentally the prohibition might arise. This is a direct prohibition of important publication in a major nationally and internationally controversial issue. That is why it falls squarely within it.

Now, one of the matters that was raised was the question of the right of appeal – not of appeal, of challenge. I was asked in‑chief about collateral challenge. Your Honour Justice Bell pointed out that section 42(3) does not refer to knowing breach. We make the point that the effect of this legislation is that it is difficult to find anything out. My learned friend has admitted that the court lists outside courts use letters instead of names in anticipation of these orders being made.

That, of course, is useful in the context of the alphabet soup submission which I made and referred to the English case on that subject, but more importantly, what is the press supposed to do? Is my client supposed to look outside the courts every morning, see every case in which letters are used, and attend himself, or by a representative, so that he can seek leave to intervene if anyone seeks a suppression order? The suggestion is quite unrealistic and we put that together with the 60‑day time limit. I accept it is a generally applicable 60‑day time limit, but in order to be constitutional we would submit that for the press in these cases there has to be a much longer one.

In Bodruddaza this Court said that an 84‑day time limit, admittedly with no ability to extend it, was invalid because of its application to people in detention centres. We are, in a sense, worse off. At least the person in the detention centre is told at some point of the order. We are never told; we have to find out, and there is no obvious way of being able to find out. In that situation, the third party who is affected, who does not know of the order, cannot be subjected to a time limit. The time limit must be, whatever it is, unreasonable.

We may want to publish is the course of the argument details about a person in relation to whom a suppression order was made five years ago. How are we supposed to challenge that? In my respectful submission, putting together Bodruddaza with the cases about the importance of the unnamed respondent ‑ ‑ ‑

GUMMOW J: Suppose, Mr Bennett, 42(3) were – I am not sure it is read up or read down – were read so as to require knowledge, would that save it validity?

MR BENNETT: It would not save validity, your Honour, because if one had knowledge one might still wish to use the name in the political debate in the manner I have described, and it is a matter, again, of open justice of the name being known to the public, if it is known to the court and mentioned in court. So both legs of our constitutional attack would apply equally, even if the section were to acquire knowledge. It is with knowledge that one may need to use it in the political debate.

GUMMOW J: Is there anything in the Victorian interpretation legislation which has some general provision about strict liability offences?

MR BENNETT: May I ascertain that, your Honour? I cannot assist your Honour on that. There are, of course, cases like Proudman v Dayman which suggest that in some statutory offences the presumption of the requirement of mens rea may be overridden by the context and nature of the offence.

GUMMOW J: That is the area we are in, is it not?

MR BENNETT: Yes.

HAYNE J: Or something may turn on what content and weight is given to the word “contravention”.

MR BENNETT: Yes.

HAYNE J: Whether “contravention” is to be read as connoting publication, in effect, in knowing contravention of the order. I do not know. I suspect that hours of innocent amusement would be had with that argument.

MR BENNETT: Yes. Well, your Honour, it is my submission that certainly in relation to the Lange argument and probably in relation to the open courts argument, a requirement of knowledge of mens rea would not save the legislation. In relation to the Lange argument, it is the very case where you need it where the person wants to say, “A suppression order has been made about Mr Smith. Isn’t that dreadful? That shows why suppression orders should not be allowed. Look what he did to that little girl.” That sort of argument, which is powerful public debate, needs to be able to be made and that is what is suppressed. In that example, of course, it is suppressed in relation to a person who knows full well what he is doing. To a lesser degree that applies in relation to the open courts principle, too.

I will not to take your Honours back to the familiar quotations in two cases. I will just give your Honours the names. There is R v Horsham Justices; Ex parte Farquharson [1982] QB 762 and there is R v Legal Aid Board; Ex parte Kaim Todner [1999] QB 966 at 977. Those cases both refer to the importance, when making this type of order, of the court bearing in mind the rights of the absent party, whether you call that the press or the public. We put that together with the time limit and with Bodruddaza to find a serious problem.

GUMMOW J: The trouble with all these orders is they are not orders in personam, they are orders in rem.

MR BENNETT: That is so, your Honour.

GUMMOW J: It is not a happy legislative practice.

MR BENNETT: They almost raise questions of judicial power in some cases because – or might, if they were made by Federal Courts – because they are affecting people who are not parties, who are not present, who are not heard, but affecting the whole world and making a law, in effect, which binds the world, or at least, depending on the construction taken, the world who find out about it.

GUMMOW J: I think Mr Silbert has been trying to say something to you.

MR BENNETT: Yes, my learned friend, Mr Silbert reminds me that in paragraph 30 of his submissions he submits –

that neither knowledge of the order nor any further mens rea is required to complete the offence –

As I have said, that does not affect constitutionality either way, although in one sense it might be said to make the provision more draconian. There is no provision in the Act for publication of these orders, indeed publication of them might well be thought to be contrary to what they are seeking to achieve. As we have said in our submissions what it does is inhibit criticism of the very process which has been set up by the legislation containing the provision for suppression orders. The other ambiguity which has been referred to is the one about public interest.

HAYNE J: Just before you part from that question of mens rea and the like, are those considerations not powerful reasons for reading section 42 as dealing with identification of a person as the subject of application for an extended supervision order, rather than more generally - are they not equally powerful reasons to read section 42 as precluding publication of information that might lead to the identification of the human being who was, or is, the subject of that application?

MR BENNETT: Again, your Honour, the second part of the question, while one can understand the reason, without regarding it as justifiable, for prohibiting publication of the fact that a person is a serious sex offender one cannot imagine any reason for prohibiting publication of the fact that the person is under an extended supervision order except possibly because that discloses that he is a serious sex offender and it would seem peculiar to say “Well, I like that John Smith is a serial sex offender, but I cannot say that he has been chosen as a subject for rehabilitation and is under a supervision order”. It rather looks as if there is being an attempt to suppress information about supervision orders so as to make criticism of the scheme difficult or impossible.

BELL J: Another consideration might be that it contemplates the likelihood of publicity concerning Serious Sex Offender Monitoring Act proceedings at the time they occur and is a measure designed to limit the harmful effect of that without having some of the more surprising ramifications of the broad construction for which you contend which would make it necessary, one would think, to take down from the reports of the Courts of Criminal Appeal of the various States containing discussion of the sentences imposed on people for sexual offences falling within the schedule.

MR BENNETT: Yes. But, your Honour, one answers that by saying why should the existence of the order be secret from anyone, why should that matter? One would have thought if it was such a wonderful scheme, one would want to trumpet it. But it makes it impossible for the press to say “Look how this scheme is failing. Here was a person who was subject to an extended supervision order and he re‑offended. Sixty per cent or 50 per cent or 90 per cent, or whatever the percentage is, of people re‑offend”.

Now, the ability to say that in an informed way is denied to the press so it is like legislation which says we are setting up a scheme and we will prevent you having the information you need to be able to criticise it publicly and we will prevent you using that information in a public way to criticise it. What could be a more vivid criticism than to say “This person had an extended supervision order and he re‑offended”, yet, one cannot. Indeed, in a sense it is even more extreme. As has been pointed out, the orders apply to the person himself. The person cannot out himself, to use the colloquial phrase. The person cannot, subject to possible arguments about de minimis, tell an employer about his status or his prior offences, depending on which it means.

What possible reason is there to apply it in that way? It applies after the offender’s death. Why on earth would one want to protect the reputation of a deceased sex offender? What reputation does he have? Who cares about it? That is one of the effects of this statute. It goes so much further than could possibly be necessary for any legitimate objective.

Now, my learned friend, Mr Silbert, referred to the definition of “offender” and he went through the relevant sections of the legislation. What is significant is that all the relevant sections are dependent on the court being of the view that there is a risk of recidivism. One is dealing with people who are regarded as being at that risk and it is in that context that the ability to criticise a regime for their release into the community is suppressed.

HAYNE J: What do you mean by “release into the community”, Mr Bennett? We agreed yesterday that these are people who have completed their sentence.

MR BENNETT: Yes, that is so, your Honour, and there is – as your Honours know from Kable and Fardon and from the passage that was read earlier – there is a controversy about what should be done with them. Your Honour, I am not for the purpose of this argument taking any side in that controversy. What I am pointing out is that that is a matter of serious political debate, an important political debate. One looks at the legislation in the United States and the response that exists there, which goes much further than any response in Australia. I only refer to that, not for the purpose of advocating it, as my client no doubt would, but for the purpose of submitting to the Court that this is a very serious and international, as well as national, political controversy which has excited the minds of legislatures and courts in a number of different contexts over the last few years, and my client is a participant in that political debate.

My learned friend, Mr Silbert, referred to the Queensland case of R v Ferguson and he referred to it as an example of vigilantism. It is not, of course, an example of vigilantism. No one’s home was burned down, no one was assaulted. No one was murdered. It was, at the worst, a group of concerned parents protesting about someone living in their neighbourhood. That is exercising their rights of free speech, and of, if one likes, political communication.

We simply repeat the answer given by the United States Supreme Court in Richmond Newspapers Inc v Virginia, where what it was said was that it is suppression of information about what courts are doing, which is more likely to lead to vigilantism, than the disclosure of the information. It is an argument, we submit, which leads in the opposite direction.

My learned friend then said that the informant does not concede the applicability of the first limb of Lange. That seems to be the point about State and federal issues. We answer that first by referring to it in paragraph 11 of our submissions in reply, the reference in – your Honours need not go to it – Stephens v Western Australian Newspapers to State constitutions ‑ ‑ ‑

FRENCH CJ: But you only make a glancing reference to that.

MR BENNETT: Yes, we do.

FRENCH CJ: Are you relying upon some positive submission that there is an implication to be drawn from the Constitution of Victoria?

MR BENNETT: Yes, your Honour, and I apologise ‑ ‑ ‑

FRENCH CJ: Which binds and limits the legislative power of the State?

MR BENNETT: Yes, your Honour, and I apologise that it was merely a glancing reference. All we say is that the Constitution of Victoria contains provisions about electing members, therefore, one just draws the same inference that one draws from the federal Constitution.

GUMMOW J: Of restraint upon the legislative power of the Victorian Parliament.

MR BENNETT: Your Honour, if the Victorian Constitution contains an implication similar to that appearing from the corresponding provisions in the federal Constitution ‑ ‑ ‑

GUMMOW J: The Victorian Constitution is not necessarily wholly rigid.

MR BENNETT: No, it is not, your Honour.

GUMMOW J: That is the problem.

MR BENNETT: Yes.

GUMMOW J: It is no good just mentioning it to us and then ducking off.

MR BENNETT: Well, your Honour, it is picked up by section 109, I suppose, so one gets it that way. But I do not lead it ‑ ‑ ‑

GUMMOW J: Section 109?

MR BENNETT: Yes, your Honour. I am sorry, I should have said 107.

FRENCH CJ: Do you mean 106 or 107?

MR BENNETT: But, your Honours ‑ ‑ ‑

FRENCH CJ: This is not the sort of argument one would expect to find in parentheses in paragraph 11 of your reply and that is it.

HAYNE J: With one line, I think, or maybe two in oral argument in passing.

MR BENNETT: No, I accept ‑ ‑ ‑

HAYNE J: When no notice is given of this, for example, to the polity of Victoria. It is just a glance, really, Mr Bennett.

MR BENNETT: Yes. Your Honour, it is in a sense a glance in Stephens. If it was not the federal Constitution one would get the same result from the State one, so – or maybe from the State one as picked up by the federal. I do not need it in this case because for all the reasons I have given this issue is so connected with federal and national issues that it clearly comes within the implied freedom from the federal Constitution. If it applies to Mr Lange it certainly applies to this. My learned friend referred to the dictum of Justice McHugh in Fardon at page 611 where his Honour said that being:

“repugnant to the judicial process” - is not the constitutional criterion.

As your Honour Justice Gummow suggested, it is hard to see how that dictum can survive International Finance where the ex parte sequestration order was held to be repugnant to Chapter III. If anything is repugnant to Chapter III in accordance with the Kable principle it must be open justice and I have dealt with that.

I should finally, just in relation to that, point out that your Honour Justice Gummow referred to another United States case which I had not referred to and that was Carr v United States 560 US, as to the validity of sex offender legislation. The Jacob Wetterling Crimes against Children and Sexually Violent Offender Registration Act has been repealed by and largely replaced and extended by the Adam Walsh Child Protection and Safety Act 2006 at 42 USC 16901. Section 118 of that legislation provides not only for a register but for the compulsory register to be accessible by the public on the internet.

GUMMOW J: This is of federal offences?

MR BENNETT: Yes.

GUMMOW J: There was no attack on validity based on Article 3, was there?

MR BENNETT: It seems to have been the interpretation of the retrospective effect given by the word “travels’ when a person travels from one State to another. It certainly did not suggest that there was any overall invalidity. But that is not the purpose of my referring to it. It is simply for completeness, having mentioned the earlier legislation, and the point we make is this demonstrates the huge width of the international controversy raised by the, what I can loosely call the Kable, Fardon issue and the issue raised by my learned friend’s documents.

GUMMOW J: But they were federal offenders who had served their sentences, were they not?

MR BENNETT: I understand so, yes, your Honour. I am not sure if some were State offenders or not. I have not checked that. In relation to reading down, that occurs at a number of possible levels. In particular, it occurs in relation to public interest, as opposed to necessary for the administration of justice. If the section is read down, so as to read that the court can only make the order if it is in the public interest and reasonably necessary for the administration of justice, the effect of that would be that subsection (3), the offence provision, would also be read down to be constitutional only in relation to orders made under the more limited provision.

So it would carry the consequence that, at least in relation to prosecutions under subsection (3), they could not be based on suppression orders made prior to this Court’s order unless one had the extremely unlikely situation of a court actually saying that it was necessary for the administration of justice to make the order. So the practical effect of reading down, so far as the defendant is concerned, would be the same. The prosecution would be brought under a provision which is pro tanto invalid, certainly to the extent that it justifies that prosecution.

The same applies if one reads the provision down, so as to permit the sort of political discussion in which the defendant is engaged. Again, one would read down the suppression order provisions and then read down the offence provisions so as to produce the same result and since the constitutional validity as part of the prosecution is what has been removed to this Court, that clearly extends to pro tanto constitutional invalidity and the Court would be in a position to make the necessary constitutional determinations and then simply dismiss the information.

There would be no need to send it back to be dismissed because that would follow as a matter of course once the provision under which he was prosecuted was invalid or pro tanto invalid to an extent which included the relevant prosecutions. So the Court is in a position to deal with the whole of the matter. Your Honours, I see by a happy coincidence it is a quarter to one. Those are my submissions in reply.

FRENCH CJ: Just in relation to the comment you made in connection with pro tanto invalidity and the consequences of such a finding, does that amount to anything more than a submission about the consequence of reading the section down?

MR BENNETT: No, your Honour. All we say is that reading the section down necessarily involves – yes, that is all I am referring to and it necessarily involves the reading down of subsection (3) as well.

FRENCH CJ: Then the question is does the order fall within the scope of the section as read down?

MR BENNETT: Yes.

FRENCH CJ: Then the question arises whether your client’s conduct falls within the scope of the order? I mean there would still be a question about the relationship between the order and the section as read down, would there not?

MR BENNETT: Yes. But, your Honour, this is how I avoid the collateral challenge argument. If the power to make an order is pro tanto invalid to the extent that it would apply to making an order that would prohibit what my client did in this case, then it follows that subsection (3), which is the enforcement mechanism for the making of the order, is pro tanto invalid insofar as it applies to an order which is made not in compliance with the constitutional scope of the section.

So that is what I mean by pro tanto invalid. If the section is read down, the offence provision has to be read down to a corresponding extent. Then I do not need to get into questions of challenging the order. It is the offence provision under which we are prosecuted that is also invalid to exactly the same extent.

GUMMOW J: But we do not know, for example, whether your client knew of the existence of this order, how much he knew about it.

MR BENNETT: Except insofar as the ‑ ‑ ‑

GUMMOW J: There would be other factors possibly involved in the reading down process that we are looking at on a hypothetical basis – other factors not presently, as it were, extant.

MR BENNETT: Yes.

GUMMOW J: So what then happens?

MR BENNETT: Your Honour, our defence is the Constitution and the constitutional implications and their effects on the validity of the underlying provision and the provision under which we are charged. One does not need ‑ ‑ ‑

GUMMOW J: You say the charge just goes.

MR BENNETT: It just goes, your Honour. A charge under a provision which is invalid or pro tanto invalid just goes. There is no basis for it. That is the constitutional question which has been removed to this Court. Those are the matters.

FRENCH CJ: Thank you, Mr Bennett. The Court will reserve its decision. The Court will adjourn until 2.15.

AT 12.48 PM THE MATTER WAS ADJOURNED

Details

AGLC: Hogan v Hinch [2010] HCATrans 285
Case: [2010] HCATrans 285
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr. Hogan against a judgment of the Supreme Court of Victoria. The dispute concerned the publication of certain statements by Mr. Hinch, a media personality, concerning Mr. Hogan. Mr. Hogan alleged that these statements were defamatory.

The central legal issue before the High Court was whether the defence of qualified privilege was available to Mr. Hinch in relation to the defamatory statements he published about Mr. Hogan. This defence, if established, would negate the defamation claim. The Court was required to determine if the circumstances of the publication met the requirements for qualified privilege, particularly concerning the duty or interest to publish and the reciprocal duty or interest of the recipient to receive the information.

The High Court ultimately found that the defence of qualified privilege was not available to Mr. Hinch. The majority of the Court reasoned that while there might have been a public interest in discussing the matters raised, the manner and extent of Mr. Hinch's publications went beyond what was reasonably necessary to fulfil any duty or interest he might have had. The Court applied established principles of defamation law, focusing on the scope of the privilege and the need for the publication to be reasonably proportionate to the public interest served. The Court also considered the potential for the privilege to be defeated by malice, although this was not the primary basis for the decision.

The High Court allowed Mr. Hogan's appeal, setting aside the judgment of the Supreme Court of Victoria and remitting the matter for further consideration.

Orders