John Fairfax Publications Pty Ltd v Attorney-General (NSW)
[2000] NSWCA 198
•2 August 2000
Reported Decision: [2000] 181 ALR 694
[2000] 158 FLR 81
New South Wales
Court of Appeal
CITATION: JOHN FAIRFAX PUBLICATIONS PTY LIMITED v THE ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES [2000] NSWCA 198 FILE NUMBER(S): CA 40875/99 HEARING DATE(S): 13 December 1999 JUDGMENT DATE:
2 August 2000PARTIES :
(Opponent)
(Claimant)
John Fairfax Publications Pty Ltd
The Attorney General for the State of New South WalesJUDGMENT OF: Spigelman CJ at 1; Priestley JA at 135; Meagher JA at 163
COUNSEL: (Claimant) S Rares SC, M A Wigney
(Opponent) M G Sexton SCSOLICITORS: (Claimant) Freehill Hollingdale & Page
(Opponent) I V KnightCATCHWORDS: CONSTITUTIONAL LAW - incompatibility with Chapter III of Commonwealth Constitution - manner of performance of function not incompatible - in camera proceedings, Supreme Court Act 1970 s101A - CONSTITUTIONAL LAW - freedom of communication on matters of government and politics - in camera proceedings, Supreme Court Act 1970 s101A LEGISLATION CITED: Courts Legislation Amendment Act 1996
Crimes (Amendment) Act 1951
Criminal Appeal Act 1912
Supreme Court Act 1970CASES CITED: Attorney-General (NSW) v John Fairfax & Sons Ltd and Bacon (1985) 6 NSWLR 695
Attorney General (NSW) v John Fairfax Publications Pty Limited [1999] NSWSC 318
Attorney General (NSW) v Time Magazine (NSW Court of Appeal, 15 September 1994, unreported)
Attorney General’s Reference (No 1 of 1974) [1974] 1 QB 744
Attorney General’s Reference (No 1 of 1983) [1983] 2 VR 410
Broken Hill Proprietary Company Ltd v Dagi [1996] 2 VR 117
Bruce v Cole (1998) 45 NSWLR 163
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1
Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540
Commodity Futures Trading Commission v Scher (1986) 478 US 833
Coulter v The Queen (1987-1988) 164 CLR 350
Daubney v Cooper (1829) 109 ER 438
Davis v The Commonwealth (1988) 166 CLR 79
Dickason v Dickason (1913) 17 CLR 50
Director of Public Prosecutions Reference No 2 of 1996 [1998] 3 VR 241
Esso Australia Resources v Dawson (1999) 87 FCR 588
Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242
Felman v Law Institute of Victoria [1998] 4 VR 324
Grollo v Palmer (1995) 184 CLR 348
H A Bachrach Pty Limited v Queensland (1998) 195 CLR 547
Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316
Harris v Caladine (1990-1991) 172 CLR 84
Hilton v Wells (1985) 157 CLR 57
Hinch v Attorney-General for the State of Victoria (1987) 184 CLR 15
James v Cowan (1929-1930) 43 CLR 386
John Fairfax v Doe (1995) 37 NSWLR
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36
Kable v The Director of Public Prosecutions for the State of New South Wales (1996) 189 CLR 501
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Levy v Victoria (1996-1997) 189 CLR 579
Lloyd v Snooks [1999] TASSC 1117
McPherson v McPherson [1936] AC 177
Mann v O’Neill (1996-1997) 191 CLR 204
Mellifont v Attornney General (Qld) (1991) 173 CLR 289
Mistretta v United States (1989) 488 US 361
Nationwide News v Wills (1991-1992) 177 CLR 1
Nicholas v The Queen (1998) 193 CLR 173
Ogden Industries v Lucas [1970] AC 113
Polyukhovick v The Commonwealth (1991) 172 CLR 501
R v Cheng [1999] NSWCCA 373
R v Moffatt [1998] 2 VR 229
R v Nicholls (1911) 12 CLR 280
R v Snow (1915) 20 CLR 315
R v Tait (1979) 46 FLR 386
R v Wynbyne (1997) 99 A Crim R 1
Re Colina; Ex parte Torney (1999) 73 ALJR 1576
Re Nolan; Ex parte Young (1991) 172 CLR 460
Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650
Richmond Newspapers Inc v Virginia (1980) 448 US 555
Rohde v Director of Public Prosecutions (1986) 161 CLR 119
Russell v Russell (1976) 134 CLR 495
Scott v Scott [1913] AC 417
Stephens v West Australian Newspapers Ltd (1993-1994) 182 CLR 211
The Queen v Humby; Ex Parte Rooney (1973) 129 CLR 231
Theophanous v Herald and Weekly Times Ltd (1993-1994) 182 CLR 104
Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397
Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1
Witham v Holloway (1995) 183 CLR 525DECISION: Declare that each of subs (7) and (8)(a) of s101A of the Supreme Court Act 1970 is invalid; Declare that subs (9) of s101A of the Supreme Court Act 1970 is invalid insofar as it applies to a publication in contravention of subs (8)(a); Order the Opponent to pay the Claimant's costs
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEALCA 40875/99
SPIGELMAN CJ
PRIESTLEY JA
MEAGHER JA
Wednesday 2 August 2000
JOHN FAIRFAX PUBLICATIONS PTY LIMITED v THE ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES
Section 101A of the Supreme Court Act 1970 provides for appeals by the Attorney General where, at first instance, an alleged contemnor is found not to have committed a contempt. An appeal, on a question of law, does not affect the acquittal. That section provides that the appeal is to be heard in camera (s101A(7)), and that the submissions made (s101A(8)(a)) and the identity and name of the alleged contemnor (s101A(8)(b)) not be published. Subsection (9) provides that a publication in breach of subs (8) is itself punishable as a contempt.
The Claimant sought a declaration that each of subs (7), (8) and (9) of s101A of the Supreme Court Act is invalid.
Held
Incompatibility with Chapter III of the Commonwealth Constitution
(Per Spigelman CJ, Meagher JA agreeing)
1 A State Supreme Court cannot be required to perform a function in a manner which is repugnant to or incompatible with the exercise by that Court of the judicial power of the Commonwealth. Kable v The Director of Public Prosecutions for the State of New South Wales (1996) 189 CLR 51.
2 Subsections (6), (7) and (8) of s101A give effect to a policy that a person has a right not to have an acquittal of a criminal charge called into question. This is not so significant a modification of the judicial process required by Ch III of the Constitution as to be incompatible with the exercise of the judicial power of the Commonwealth. Coulter v The Queen (1987-1988) 164 CLR 350, Dickason v Dickason (1913) 17 CLR 50, Russell v Russell 91976) 134 CLR 495 considered.
(Per Priestley JA)
1 The Court hearing the appeal brought under s101A to which this claim relates would be exercising federal judicial power. Kable v The Director of Public Prosecutions for the State of New South Wales (1996) 189 CLR 51.
2 Subsections (7), (8) and (9) of s101A are invalid. The subsections are incompatible with the exercise of judicial power by the Court and thus beyond the legislative power of the State Parliament. Russell v Russell (1976) 134 CLR 495, Coulter v The Queen (1988) 164 CLR 350 considered. The subsections compromise the integrity of the Supreme Court and the appearance of independence of the Court.
Freedom of Communication on Governmental and Political Matters
(Per Spigelman CJ, Priestley JA agreeing)
1 The institution and conduct of proceedings by the Attorney under s101A constitutes governmental or political matter within the constitutional immunity affirmed in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
The role of the State Attorney with respect to the exercise by the Supreme Court of federal jurisdiction is indivisible from that role with respect to the Court’s exercise of State jurisdiction. The law of contempt is in part directed to ensuring that persons accused of Commonwealth offences receive a fair trial. The policy of the Attorney, as manifest in contentions put on her or his behalf may be relevant to the decision to exercise Commonwealth legislative power in a manner which affects the operations of a State court in their exercise of federal jurisdiction or which modifies that jurisdiction. (Nationwide News Pty Ltd v Wills (1991-1992) 177 CLR 106, Theophanous v Herald and Weekly Times (1993-1994) 182 CLR 104, Stephens v West Australia Newspapers Ltd (1993-1994) 182 CLR 211, Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, Levy v Victoria (1997) 189 CLR 579).
2 The protection of a person found not guilty of an alleged criminal contempt from questioning of the successful defence of the charge is a legitimate objective compatible with freedom of communication within the constitutional immunity. Subsection (8)(b) is reasonably appropriate and adapted to serve this legitimate objective.
3 Subsections (7) and (8)(a) are not reasonably appropriate and adapted to achieving a legitimate objective. The prohibition extends to every aspect of the hearing, whether protective of the person entitled to anonymity or not. Davis v The Commonwealth (1988) 166 CLR 79, Nationwide News Pty Ltd v Wills (1991-1992) 177 CLR 106, Attorney General’s Reference (No 1 of 1983) [1983] 2 VR 410, Director of Public Prosecutions Reference No 2 of 1996 [1998] 3 VR 241 referred to.
(Per Meagher JA)
1 The doctrine in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 is not infringed because the only matters that s101A prohibits the discussion of are the legal arguments between Bar and Bench on questions of law.
Orders
1 Declare that each of subs (7) and (8)(a) of s101A of the Supreme Court Act 1970 is invalid.
2 Declare that subs (9) of s101A of the Supreme Court Act 1970 is invalid insofar as it applies to a publication in contravention of subs (8)(a).
3 Order the Opponent to pay the Claimant’s costs.
- 66 -
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEALCA 40875/99
SPIGELMAN CJ
PRIESTLEY JA
MEAGHER JA
Wednesday 2 August 2000
JOHN FAIRFAX PUBLICATIONS PTY LIMITED v THE ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALESJUDGMENT1 SPIGELMAN CJ: The Claimant, John Fairfax Publications Pty Limited, is the publisher of The Sydney Morning Herald, The Australian Financial Review and The Sun Herald. Each newspaper is circulated by the Claimant in each of the States and Territories of Australia.
2 The first declaration that the Claimant seeks in these proceedings is that each of subs (7), (8) and (9) of s101A of the Supreme Court Act 1970 is invalid.
3 Prior to the insertion of s101A into the Supreme Court Act by the Courts Legislation Amendment Act 1996, proceedings for punishment of contempt of the Supreme Court, or of any other court, could be assigned to the Court of Appeal. The Amendment Act made provision for the Court of Appeal to hear contempt proceedings in certain cases and further provided that proceedings for contempt not so assigned were assigned to the Common Law Division, subject to appeal to the Court of Appeal.
4 Section 101A makes provision for appeals by the Attorney General where, at first instance, an alleged contemnor is found not to have committed a contempt. The section provides:
“101A(1) At any time after the conclusion of contempt proceedings in which the alleged contemnor is found not to have committed contempt, the Attorney General may submit to the Court of Appeal any question of law arising from or in connection with the proceedings.
(2) The Attorney General must submit with the question to be determined a statement of the circumstances out of which the question arose, and thereafter must furnish such further statement as the Court of Appeal may require.
(3) The Court of Appeal has jurisdiction to hear and determine any question submitted to it under this section.
(4) The determination of the Court of Appeal of the question submitted does not in any way affect or invalidate any finding or decision given in the contempt proceedings.
(5) The alleged contemnor is entitled to be heard on the question submitted and, if it appears that the alleged contemnor does not propose to be represented, the Attorney General is to instruct counsel to argue the question before the Court of Appeal on behalf of the person.
(6) The reasonable costs of legal representation of the alleged contemnor in proceedings under this section are to be paid by the Crown.
(7) Proceedings under this section are to be held in camera, except that a legal practitioner may be present at the proceedings for the purpose of reporting the case for any lawful purpose of the Council of Law Reporting for New South Wales.
(8) A person:
(a) must not publish any report of any submission made under subsection (1), and
(b) must not publish any report of proceedings under this section so as to disclose the name or identity of the alleged contemnor.
(9) Any publication in contravention of subsection (8) is punishable as contempt of the Court.
(10) In this section:
alleged contemnor means the person charged with contempt in contempt proceedings.
contempt means contempt of the Court or of any other court.
contempt proceedings means proceedings before the Court in a Division for the punishment of contempt.
(11) This section applies to criminal contempt only, and does not apply to civil contempt.”
5 The illusory nature of the distinction between civil and criminal contempt has led the High Court to determine that all charges of contempt must be proved beyond reasonable doubt. (See Witham v Holloway (1995) 183 CLR 525. See also Broken Hill Proprietary Company Ltd v Dagi [1996] 2 VR 117 at 194-195 per Hayne JA). Nevertheless, Parliament expressly states in subsection (11) that s101A applies only to contempt proceedings for what would, traditionally, have been regarded as a criminal contempt, namely proceedings which are not remedial or coercive in the interests of a private individual.
6 For that reason, no doubt, the Parliament chose to assimilate a Crown appeal from an unsuccessful proceeding for contempt, with the limited circumstances in which a Crown can take proceedings by way of appeal on an acquittal in a criminal trial. The common law doctrine that the Crown cannot appeal from a verdict of acquittal is well established. It has sometimes been described as a manifestation of the principle against double jeopardy in the administration of criminal justice. (See eg R v Snow (1915) 20 CLR 315 at 322; Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397 esp 407-411; Rohde v Director of Public Prosecutions (1986) 161 CLR 119 at 128-129; R v Cheng [1999] NSWCCA 373 at pars [24] - [33]).
7 Parliament chose as its model s5A(2) of the Criminal Appeal Act 1912 in which provision is made, in the case of a person acquitted after a trial on indictment, for the Attorney General to submit a question of law, arising in connection with the trial, to the Court of Criminal Appeal. That section was originally inserted into that Act by the Crimes (Amendment) Act 1951. It requires proceedings of this character to be held in camera.
8 Relevantly s5A(2) provides:9 Plainly s5A(2) was designed to ensure that an accused’s acquittal is not publicly called into question. The provisions have stood unchallenged for almost fifty years. The analogy between an acquittal and a dismissal of criminal contempt proceedings is close, and was regarded by the Parliament as close.
“5A(2)(g) The hearing and determination of any question under this subsection shall be held in camera:
provided that nothing in this paragraph shall preclude a barrister or solicitor from being present at the hearing and determination for the purpose of reporting the case for any lawful purpose of the Council of Law Reporting for New South Wales.
(h) No report of any submission made pursuant to paragraph (a) shall be published. No report of proceedings under this subsection shall be published which discloses the name or identity of the person charged at the trial or affected by the decision given at the trial. Any publication in contravention of the foregoing provision shall be punishable as contempt of the Supreme Court.”
The Kable Point
10 The Claimant invoked the decision of the High Court in Kable v The Director of Public Prosecutionsfor the State of New South Wales (1996) 189 CLR 51. It submitted that a statutory obligation on the Court of Appeal of NSW to invariably sit in camera with respect to a particular category of proceedings was incompatible with the role of the Supreme Court as a Court which exercises federal jurisdiction under Chapter III of the Commonwealth Constitution and from which an appeal lies to the High Court of Australia under s73 of the Constitution. Alternatively, it was submitted that the statutory obligation to sit in camera was incompatible with the role of the Court in a case in which the Court was exercising federal jurisdiction, relevantly, the determination of issues arising under or involving the interpretation of the Constitution.
11 The Complainant’s contention that the Court exercises federal jurisdiction in proceedings instituted by the Attorney General under s101A is based, in part, on the proposition that in the course of those proceedings one issue that will be agitated is the effect upon the common law of contempt of the High Court’s decision in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
12 In Kable it was common ground that the State court was exercising federal jurisdiction by reason of the constitutional arguments sought to be agitated during the course of those proceedings. (See eg per McHugh J at 114, per Gummow J at 136 and per Dawson J at 87).
13 In the present case there was no concession on the part of the Attorney that the Court in the hearing of the application of the Attorney would be exercising federal jurisdiction merely because one of the parties wished to agitate such a constitutional question. It is not necessary to decide this issue. The Court can proceed to determine the matter upon the assumption most favourable to the Claimant that an exercise of federal jurisdiction is involved. (See also R v Moffatt [1998] 2 VR 229 at 248 per Hayne JA).
14 Kable is authority for the proposition that a State legislature may not invest the Supreme Court of the State with a function which is incompatible with the exercise by that Court of the judicial power of the Commonwealth. The four judgments of the majority in Kable are not able to be distilled into a single principle. (See the observations in R v Moffatt supra at 237 per Winneke P; 249 and 251 per Hayne JA).
15 The reasoning of the majority in Kable was not confined to the character of a function or power conferred by a State law. Some of the reasoning encompasses the manner in which a function or power is to be performed. Although Kable was concerned with the compatibility of a specific non-judicial power (to order imprisonment without any finding of criminal guilt) with the exercise by a State Supreme Court of the judicial power of the Commonwealth, the reasoning of the majority did involve principles of broader application. (See Bruce v Cole (1998) 45 NSWLR 163 at 166C-G).
16 Gaudron J identified the function under consideration as involving “the antithesis of the judicial process” (106), as making “a mockery of that process” (108) and as being contrary “to what is ordinarily involved in the judicial process” (107). The power, her Honour held, compromised the “integrity” of the Supreme Court and, by reason of that Court’s role under Chapter III, also, therefore, compromised the integrity of the judicial system under Chapter III. Her Honour said that, in part, “[t]he integrity of the courts depends on their acting in accordance with the judicial process …” (107 and see at 104).
17 McHugh J emphasised that the power was “far removed from the judicial process that is ordinarily invoked when a court is asked to imprison a person” (122). His Honour also held that the statutory procedures “compromise the institutional impartiality of the Supreme Court” (121).
18 Gummow J identified the power as “repugnant to the judicial process in a fundamental degree” (132, also at 134). This was an aspect of “the character or quality of the State Court system” (139), with which Chapter III was concerned. His Honour concluded at 143:
“The particular characteristics of the Supreme Court against detraction from which, or impairment of which, by the Act the appellant complains, are mandated by the Constitution itself.”
19 Each of the members of the majority in Kable referred to the significance of public confidence in the administration of justice and, particularly, the appearance of impartiality and independence of the judiciary from the legislature and the executive (per Toohey J at 98; per Gaudron J at 107; per McHugh J at 117, 118-119, 121 and 124; per Gummow J at 133 - 134).
20 On another occasion Justice Gummow has referred to the phrase “the maintenance of public confidence in the administration of justice” as constituting “in present times … the meaning of the ancient phrase ‘the majesty of the law’.” (Mann v O’Neill (1996-1997) 191 CLR 204 at 245).
21 I note the observations of Brennan CJ in Nicholas v The Queen (1998) 193 CLR 173 at [37] (with whom Hayne J expressly agreed at [242]):
“[T]o hold that a court’s opinion as to the effect of a law on the public perception of the court is a criterion of the constitutional validity of the law, would be to assert an uncontrolled and uncontrollable power of judicial veto over the exercise of legislative power.”
22 This passage occurs in the course of dealing at 193-198 with what his Honour had identified at 185 as a third distinct argument for constitutional invalidity: Undermining the integrity of the court’s processes and public confidence in the administration of justice. It is not part of his Honour’s consideration of the first argument at 185-191: Consistency with the essential character of a court or with the nature of judicial power.
23 In any event the joint judgment of the High Court in Grollo v Palmer (1995) 184 CLR 348 at 365 identified diminishing “public confidence in the integrity of the judiciary as an institution” as a way in which constitutionally impermissible incompatibility may arise. This test was applied in the joint judgment in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 16. Although these cases were concerned with the operation of the persona designata doctrine in the case of a judge of a federal court, the reasoning of the majority in Kable suggests that the test is not so confined.
24 Deane J has emphasised the significance of “the essential attributes of the curial process” and “traditional judicial procedures, remedies and methodology”. (Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 607).
25 His Honour’s observations were reflected in an oft quoted passage in the joint judgment in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 in which Brennan, Deane and Dawson JJ referred to the grants of power in s51 of Constitution and said at 27:26 In Chu Kheng Lim their Honours also said at 36-37:
“Nor do those grants of legislative power extend to the making of a law which requires or authorizes the courts in which the judicial power of the Commonwealth is exclusively vested to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power.”
“It is one thing for the Parliament, within the limits of the legislative power conferred upon it by the Constitution, to grant or withhold jurisdiction. It is quite a different thing for the Parliament to purport to direct the courts as to the manner and outcome of the exercise of their jurisdiction. The former falls within the legislative power which the Constitution, including Ch. III itself, entrusts to the Parliament. The latter constitutes an impermissible intrusion into the judicial power which Ch. III vests exclusively in the courts which it designates.”
27 The reference to “manner” as well as “outcome” of the exercise of jurisdiction by the courts is capable of covering a broad range of aspects of practice and procedure, with respect to many of which there would be no objection to Parliamentary regulation. (See e.g. Nicholas supra at 188-191). Although expressed in the context of the scope of Commonwealth power, the reasoning in Kable is consistent with the application of the proposition to State legislation which impinges on the “manner” in which courts must exercise their power.
28 The State legislation under challenge in this case does not confer a particular function or a particular power. It is concerned with a matter of procedure. The issue is whether the principle of open justice is so fundamental an aspect of the judicial process that its modification in the particular respects with which s101A of the Supreme Court Act is concerned, offends the principles derived from Chapter III of the Constitution as identified in the reasoning in Kable.
29 The submissions of the Solicitor-General of New South Wales, on behalf of the Attorney General of New South Wales, sought to distinguish Kable on the basis that the determination of a question of law which would not lead to reversal of an acquittal constituted the performance of a judicial function (relying on Mellifont v Attorney General (Qld) (1991) 173 CLR 289). It was submitted that the performance of a judicial function cannot be incompatible with the judicial power of the Commonwealth. This was said to contrast with the position in Kable where the incompatibility arose between a non-judicial function and the requirements of Chapter III.
30 The Solicitor further submitted that the function, understood as a type of activity is not affected by the requirement that the hearing be held in camera. The “question” submitted to the Court of Appeal under s101A is the relevant function. The fact that a particular procedure is required to be followed is not, the Solicitor submitted, a matter which impacts on the function, understood as a type of activity. Accordingly no issue of incompatibility between a function so defined and Chapter III arises.
31 In the present proceedings, the Claimant does not challenge the performance of the function of determining a question of law. Rather it challenges the procedure by which the function must be performed. Mellifont is not directly pertinent to this submission. In any event, the reasoning in Kable is not confined to “incompatibility” in the sense there specifically under consideration i.e. between performance of non-judicial power and Chapter III. As noted above it extends to issues of “impartiality” and “independence” of the judicial process and to public confidence in that process.
32 The Court in Kable was not concerned with an aspect of procedure. However, the reasoning, particularly of Gaudron and Gummow JJ, indicates that the reference their Honours made to functions was a specific manifestation of a broader principle capable of extending to encompass some aspects of procedure. Nothing in the judgments of Toohey and McHugh JJ suggests that their Honours regarded the issue of incompatibility as limited to the particular matters before the Court, expressed in terms of a function. Gaudron J made particular reference to the integrity of the judicial process (see eg at 104, 106 and 107).
33 McHugh J expressly indicated that a State Parliament could not legislate in a way which permits a Supreme Court, at least while exercising federal judicial power, to disregard the rules of natural justice (116).
34 These passages from their Honour’s judgments indicate, in my opinion, that Kable is not to be confined to matters capable of characterisation as a “function” to the exclusion of the procedure to be followed by a State Supreme Court, or of “manner”, to use the terminology of the Court in Chu Kheng Lim. It is not necessary to enter into argument about characterisation. (For example, is there a function conferred which can be stated compendiously as “To hear contempt appeals in private”?).
35 To similar effect is the jurisprudence of the High Court on the identification of circumstances in which it is permissible to appoint a Chapter III judicial officer to perform non-judicial functions as persona designata. The Supreme Court of the United States stated in Mistretta v United States (1989) 488 US 361 at 404:
“That the Constitution does not absolutely prohibit a federal judge from assuming extrajudicial duties does not mean that every extrajudicial service would be compatible with, or appropriate to, continuing service on the bench; nor does it mean that Congress may require a federal judge to assume extrajudicial duties as long as the judge is assigned those duties in an individual, not judicial capacity. The ultimate inquiry remains whether a particular extrajudicial assignment undermines the integrity of the Judicial Branch.”
36 As the Supreme Court makes clear in Mistretta at 383, the formulation “impermissibly threatens the institutional integrity of the Judicial Branch” is a principle of general application, derived from the Court’s previous decision in Commodity Futures Trading Commission v Scher (1986) 478 US 833 at 851, where the issue concerned the conferral of judicial power on an administrative tribunal.
37 The Supreme Court also said in Mistretta at 407 that:
“The legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and non partisanship.”
38 The Supreme Court held at 407 that participation of judges in a Sentencing Commission which formulated mandatory sentencing guidelines “… does not threaten, either in fact or in appearance, the impartiality of the Judicial Branch”.
39 The first passage from Mistretta quoted above was referred to with approval by the High Court in Grollo v Palmer supra at 365 where, in a four judge joint judgment, their Honours said:40 The Mistretta test of impingement upon “impartiality and non-partisanship” has been referred to with approval by the High Court in the formulation of the doctrine of incompatibility of functions, namely the identification of non-judicial powers which may not be conferred on Chapter III judicial officers even as persona designata. (See Grollo v Palmer supra at 377; 392; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs supra at 9). The passage was also cited by Gummow J in Kable at 133 in the context of discussing the effects of conferring a “grossly unjudicial chore” on a federal judge. His Honour added:
“The incompatibility condition may arise in a number of different ways. … It might consist in the performance of non-judicial functions of such a nature that the capacity of the judge to perform his or her judicial functions with integrity is compromised or impaired. Or it might consist in the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished.”
“It saps the appearance of institutional impartiality and the maintenance of public confidence.”
41 The authorities on the incompatibility doctrine involving federal judges need to be treated with care. The limitation on State legislative power does not derive from the doctrine of separation of powers. (See R v Moffatt supra at 249 per Hayne JA; Felman v Law Institute of Victoria [1998] 4 VR 324 at 356-357 per Kenny JA).
42 Gaudron J said in Kable at 103-4 (c/f McHugh J at 118):
“The prohibition on State legislative power which derives from Ch III is not at all comparable with the limitation on the legislative power of the Commonwealth enunciated in … [t]he Boilermakers’ doctrine … . The limitation on State legislative power is more closely confined and relates to powers or functions imposed on a State court, rather than its judges in their capacity as individuals, and is concerned with powers or functions that are repugnant to or incompatible with the exercise of the judicial power of the Commonwealth.”
43 It may be useful to adopt the term “repugnancy” to distinguish the Kable doctrine from the “incompatibility doctrine” applicable to federal courts.
44 Each specific impingement on judicial process must be separately considered. As Mason J said in The Queen v Humby; Ex Parte Rooney (1973) 129 CLR 231 at 249-250 “[u]surpation of the judicial power’ is … a concept which is not susceptible of precise and comprehensive definition.”
45 As displayed in the opposite results in Hilton v Wells (1985) 157 CLR 57 and Grollo v Palmer on the one hand, and Wilson on the other hand, each particular statutory scheme must be separately assessed to determine whether there is manifest the requisite incompatibility with the Constitutional scheme for Chapter III courts, relevantly State courts exercising the judicial power of the Commonwealth.
46 The reasoning in the authorities to which I have referred above, contains a number of distinct formulations of the appropriate test in terms compromising the institutional impartiality or the integrity of the State Courts or of undermining public confidence in those courts. In each case the Commonwealth Constitution requires such courts to be appropriate recipients of federal jurisdiction.
47 Another way of formulating the relevant question for present purposes is that posed by Gummow J in Nicholas supra at [145]:48 As his Honour went on to say at [146]:
“Is this such an interference with the governance of the trial and a distortion of its predominant characteristics as to involve the trial court in the determination of the criminal guilt of the accused otherwise than by the exercise of the judicial power of the Commonwealth?”
49 For purposes of the present case, the approach of Gummow J may be paraphrased in the following way:
“The legislative powers of the Commonwealth do not extend to the making of a law which authorises or requires a court exercising the judicial power to do so in a manner inconsistent with its nature.”
Do s101A(7), (8) and (9) involve such an interference with the conduct of an appeal and a distortion of its predominant characteristics, as to involve the appellate court in the determination of questions otherwise than by the exercise of the judicial power of the Commonwealth?
50 The test I have derived from those observations of Gummow J emphasises the quite exceptional nature of State legislation that is required to contravene this constitutional protection of the judicial process.
51 This is manifest in the failure of intermediate courts of appeal to identify any such contravention in the subsequent authorities:
· R v Moffatt supra. (The imposition and review of indefinite sentences).
· R v Wynbyne (1997) 99 A Crim R 1. (Mandatory sentencing).
· Felman v Law Institute of Victoria supra at 352-358. (Supervisory jurisdiction over legal profession).
· Esso Australia Resources v Dawson (1999) 87 FCR 588 at 595-596. (Denial of legal professional privilege).
· Lloyd v Snooks [1999] TASSC 117. (Mandatory sentencing).
52 There can be no doubt that the principle of open justice is one of the most fundamental aspects of the system of justice in Australia. It informs and vitalises numerous specific rules and practices. (See my address to the 31st Australian Legal Convention “Seen to Be Done: The Principle of Open Justice” (2000) 74 ALJ 290 and 378).
53 The principle of open justice is so fundamental as to be of constitutional significance. As Lord Shaw described the principle in Scott v Scott [1913] AC 417 at 473, it is:
“… a sound and very sacred part of the constitution of the country and the administration of justice”.
54 In Scott v Scott, the House of Lords held that there was no inherent power of the Court to exclude the public. This principle was immediately applied by a unanimous High Court. (See Dickason v Dickason (1913) 17 CLR 50 at 54).
55 In Dickason supra at 51, the High Court unanimously recognised that:56 In Daubney v Cooper (1829) 109 ER 438 at 440, proceeding in public was described as:
“… one of the normal attributes of a Court is publicity.”
“… one of the essential qualities of a Court of Justice.”
(See also Richmond Newspapers Inc v Virginia (1980) 448 US 555 at 523).
57 In addition to her Honour’s observations in Kable, to which I have referred above, Gaudron J has emphasised on a number of occasions that certain aspects of judicial process are essential characteristics of judicial power. (See Harris v Caladine (1990-1991) 172 CLR 84 at 150; Re Nolan; Ex parte Young (1991) 172 CLR 460 at 496; Polyukhovich supra at 703-4; Nicholas supra at [72]-[73]). Her Honour has identified “open and public inquiry (subject to limited exceptions)” as one of the “essential features” of judicial process and, therefore, of judicial power. (Harris v Caladine ibid and Re Nolan; Ex Parte Young ibid).
58 Of particular significance for the present case is the decision of the High Court in Russell v Russell (1976) 134 CLR 495. By majority, the High Court determined that it was beyond the constitutional power of the Parliament of the Commonwealth to pass legislation which required that a State court exercise federal jurisdiction in private. The section in question was s97(1) of the Family Law Act 1975 (Cth) which provided:
“97(1) Subject to subsection (2) and to the regulations, all proceedings in the Family Court, or in another court when exercising jurisdiction under this Act, shall be heard in closed court.”
59 The issue to be decided was whether or not this section was within the constitutional authority of the Commonwealth Parliament under s77(iii) of the Commonwealth Constitution, to invest a State court with federal jurisdiction. Prior authority of the High Court had indicated that the Commonwealth Parliament could not legislate in such a way as to alter the constitution and organisation of a State court. Of particular significance for present purposes is that aspect of the reasoning of the majority judges which indicates that the performance of functions in public was an essential aspect of the character of the court.
60 Barwick CJ said at 507:61 Gibbs J indicated that there were aspects of practice and procedure of a State court which could be regulated by a statute of the Commonwealth Parliament. His Honour added at 519:
“Section 97(1) purports to take from the State court any discretion to exclude the public in certain particular circumstances, a discretion which when it is available, in my opinion, inheres in the nature and organization and operation of the court. The exercise of such a discretion does not touch upon the nature or extent of the jurisdiction to hear and determine.”
62 With respect to subs 97(1) his Honour said at 520-521:
“… it is necessary to consider whether a particular provision is no more than a law regulating the practice and procedure which a State court is to follow in exercising its invested jurisdiction, or whether it goes further and is a law with respect to the court itself.
In my opinion, s97 of the Act is a law of the latter character.”
“It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted ‘publicly and in open view’ ( Scott v Scott [1913] AC 417 at 441). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character . It distinguishes their activities from those of administrative officials, for ‘publicity is the authentic hall-mark of judicial as distinct from administrative procedure’ ( McPherson v McPherson [1936] AC 177 at 200). To require a court invariably to sit in closed court is to alter the nature of the court . Of course there are established exceptions to the general rule that judicial proceedings shall be conducted in public; and the category of such exceptions is not closed to the Parliament. The need to maintain secrecy or confidentiality, or the interests of privacy or delicacy, may in some cases be thought to render it desirable for a matter, or part of it, to be held in closed court. If the Act had empowered the Supreme Courts when exercising matrimonial jurisdiction to sit in closed court in appropriate cases I should not have thought that the provision went beyond the power of the Parliament. In requiring them to sit in closed court in all cases - even proceedings for contempt - the Parliament has attempted to obliterate one of their most important attributes. This it cannot do.
In my opinion the provisions of s97 are an attempt to regulate the State courts which are invested with federal jurisdiction. In so far as the provisions of that section relate to courts other than the Family Court they go beyond the powers of the Parliament and are invalid.” (Emphasis added)
63 His Honour’s reference to the Family Court could be of significance for present purposes. If the Parliament of the Commonwealth can pass a law such as s101A with respect to a federal court, as Gibbs J may be interpreted to suggest, then no application of the Kable doctrine arises because there is no incompatibility with Ch III. (See H A Bachrach Pty Limited v Queensland (1998) 195 CLR 547 at [14]). However, the terminology adopted by Gibbs J, which I have emphasised, replicates precisely the words of the question before the Court. (See at 504). Accordingly, it appears that Gibbs J was not intending to make any comment with respect to the Commonwealth’s statutory powers over federal courts.
64 The third member of the majority in Russell v Russell was Stephen J. His Honour focused on the principle that the Commonwealth Parliament did not have authority under s77(iii) to pass laws with respect to the organisation and constitution of a State Court. His Honour said at 532:
“[Section] 97(1) … is concerned … with a matter of great substance, the concept of the hearing in open court. …
What I infer from all that was said in Scott v Scott is that a tribunal which as of course conducts its hearings in closed court is not of the same character as one which habitually conducts its proceedings in open court. It is one of the ‘ordinary incidents of English Courts of Justice’ that its proceedings will be conducted in public (per Bramwell B and per Williams J, H (falsely called C) v C ((1859) 29 L.J.(P & M) 29 at 30), it being the ‘primary function of the court …to administer equal justice to all suitors in open court’ (per Farwell LJ, Scott v Scott [1912] P at 287) …
To require that a Supreme Court possessing all the attributes of an English court of justice, should sit as of course in closed court is, I think, in the words of Lord Shaw, to turn that Court into a different kind of tribunal and involves that very intrusion into its constitution and organization which s77(iii) does not authorise”.
65 The observations in Russell v Russell on the significance of open justice were considered by the High Court in Coulter v The Queen (1987-1988) 164 CLR 350. In that case the Court had before it a challenge to the validity of a rule of the Supreme Court of South Australia which provided that applications for leave to appeal in a criminal case were to be held by the Full Court “privately”, on the basis of written submissions and without oral hearing. The issue was whether such a rule was authorised by the statutory rule making power in general form, or whether that power should be read down.
66 The Court delivered a majority judgment (Mason CJ, Wilson and Brennan JJ) and a dissenting judgment (Deane and Gaudron JJ). Both judgments invoked the principle that the obligation to sit in open court was an ordinary incident of the character of a court. However, the majority confined the principle to “the ordinary course of litigation” and found that an application for leave was not in that “ordinary course” (356 and 357). Their Honours refused, accordingly, to read down the general rule making power. The dissentients held that an application for leave is a “standard part of ordinary curial procedures” and, accordingly, read down the power (359-360, 362).
67 The present proceedings involve an appeal on a question of law. There is a difference from the “ordinary course” in that the appeal cannot affect the result in the particular case which gives rise to the appeal. As the decision in Coulter indicates, the identification of what is constituted by “the ordinary course of litigation” is a matter on which minds may differ.
68 As at present advised, I would hold that an appeal under s101A was “in the ordinary course of litigation”, despite its special feature. The Court’s jurisdiction has been invoked in order to establish a precedent, even if not of direct applicability to the specific case. (See Mellifont supra at 305). The decision in Coulter was not, however, a matter on which the parties made submissions. It is not necessary to express a final opinion on the issue. I am prepared to proceed on the basis, least favourable to the Respondent Attorney, that the present appeal was “in the ordinary course of litigation” and, accordingly, that the principle of open justice was applicable.
69 When assessing the application of reasoning to the effect that open justice is an “essential characteristic” of a court, it is important to bear in mind the context in which the references have occurred. The identification of ‘open justice’ as an “essential characteristic” of a State court in Russell v Russell for purposes of determining the scope of a Commonwealth power to legislate with respect to such courts, does not necessarily involve the considerations which arise when determining whether a court is a fit repository for federal jurisdiction. As Lord Upjohn said in Ogden Industries v Lucas [1970] AC 113 at 127:70 The exceptions to the principle of open justice are few and strictly defined. (See eg McPherson v McPherson [1936] AC 177 at 200; R v Tait (1979) 46 FLR 386 at 402). However, it has never been doubted that Parliament, but not now the Courts, can add to the list of exceptions. As the High Court put it in Dickason supra at 51:
“… in a common law system of jurisprudence which depends largely upon judicial precedent and the earlier pronouncements of judges, the greatest possible care must be taken to relate the observation of a judge to the precise issues before him and to confine such observations, even though expressed in broad terms, to the general compass of the facts before him, unless he makes it clear that he intended his remarks to have a wider ambit. It is not possible for judges always to express their judgments so as to exclude entirely the risk that in some subsequent case their language may be misapplied and any attempt at such perfection of expression could only lead to the opposite result of uncertainty or even obscurity as regards the case in hand.”
71 I repeat part of the reasoning of Gibbs J in Russell supra at 520:
“Power to exclude may be conferred expressly by law …”
“Of course there are established exceptions to the general rule that judicial proceedings shall be conducted in public; and the category of such exceptions is not closed to the Parliament.”
72 Some forms of Parliamentary modification of the principle of open justice will be struck down by the constitutional principle identified in Kable. For example, a provision requiring the Court to sit in camera in all cases involving the State of New South Wales, either generally or in some specific respect in which the interests of the State were involved, would, in my opinion, be invalid.
73 However, in the present case, the specific measure under consideration does not, in my opinion, represent an infringement which impinges on the “integrity” of the Supreme Court as a repository of federal power. Nor does it impinge on the independence, or the appearance of independence, of the court. Nor does it constitute such a distortion of its predominant or essential characteristics as to involve the court determining the issues of law posed for its consideration, otherwise than by the exercise of the judicial power of the Commonwealth.
74 The restrictions imposed on the presence of the public and on publicity by s101A (7), (8) and (9), represents the implementation of a policy that an individual (or, as is often the case, a media company) has a right not to have an acquittal of a criminal charge called into question. This constitutes a limited and justifiable exception to the general principle, which the public is, in my opinion, likely to appreciate.
75 The adoption of a policy that an appeal on a point of legal principle relating to contempt, which cannot affect the decision on the specific case, should not be the subject of public debate, is not, in my opinion, so significant a modification of the judicial process required by Chapter III of the Constitution as to be incompatible with the exercise of the judicial power of the Commonwealth.
The Lange Point
76 In the alternative, the Claimant submitted that s101A infringed the freedom of communication on matters of government and politics which the High Court has identified to be an indispensable incident of the system of representative government created by the Commonwealth Constitution. (Lange v Australian Broadcasting Corporation supra eg at 559). It is one thing, however, to state such a general principle at a high level of abstraction. It is another thing to give the principle particular content in a context where other public interests must also be served.
77 The nature of the judicial function is similar to that which Rich J identified with respect to the general words of s92 of the Commonwealth Constitution in James v Cowan (1929-1930) 43 CLR 386 at 422:78 In Lange the High Court embarked on this task of ‘explaining the elliptical and expounding the unexpressed’ in two particular passages:
“The rhetorical affirmation of s92 that trade, commerce and intercourse between the States shall be absolutely free has a terseness and elevation of style which doubtless benefits the expression of a sentiment so inspiring. But inspiring sentiments are often vague and grandiloquence is sometimes obscure. If this declaration of liberty had not stopped short at the high-sounding words ‘absolutely free’, the pith and force of its diction might have been sadly diminished. But even if it was impossible to define precisely what it was from which inter-State trade was to be free, either because a common place definition forms such a pedestrian conclusion or because it needs an exactness of conception seldom achieved where constitutions are projected, yet obmutescence was both unnecessary and unsafe. Some hint at least might have been dropped, some distant allusion made, from which the nature of the immunity intended could afterwards have been deduced by those whose lot it is to explain the elliptical and expound the unexpressed. As soon as the section was brought down from the lofty clouds whence constitutional precepts are fulminated and came to be applied to the everyday practice of trade and commerce and the sordid intercourse of human affairs, the necessity of knowing and so determining precisely what impediments and hindrances were no longer to obstruct inter-State trade obliged this Court to attempt the impossible task of supplying an exclusive and inclusive definition of a conception to be discovered only in the silences of the Constitution. The evils from which s92 meant to free inter-State trade were evidently particular. Universal freedom from all laws both natural and human was not in contemplation.”
“However, the freedom of communication which the Constitution protects is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution. The freedom of communication required by ss7 and 24 and reinforced by the sections concerning responsible government and the amendment of the Constitution operates as a restriction on legislative power. However, the freedom will not invalidate a law enacted to satisfy some other legitimate end if the law satisfies two conditions. The first condition is that the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government or the procedure for submitting a proposed amendment to the Constitution to the informed decision of the people which the Constitution prescribes. The second is that the law is reasonably appropriate and adapted to achieving that legitimate object or end. Different formulae have been used by members of this Court in other cases to express the test whether the freedom provided by the Constitution has been infringed. Some judges have expressed the test as whether the law is reasonably appropriate and adapted to the fulfilment of a legitimate purpose. Others have favoured different expressions, including proportionality. In the context of the questions raised by the case stated, there is no need to distinguish these concepts. For ease of expression, throughout these reasons we have used the formulation of reasonably appropriate and adapted.” (561-562)
and
“When a law of a State or federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution, two questions must be answered before the validity of the law can be determined. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s128 for submitting a proposed amendment of the constitution to the informed decision of the people (hereafter collectively ‘the system of government prescribed by the Constitution’). If the first question is answered ‘yes’ and the second is answered ‘no’, the law is invalid.” (567-568)
79 The Attorney did not make submissions which sought to confine the scope of, or application of, the freedom of communication under the Constitution in some manner pertinent to the legislative power of the State. No submission was made to the effect that the relevant principles differed in any respect by reason of the fact that the law in question was a law of the State, rather than a law of the Commonwealth. Accordingly, no occasion arises to explore the jurisprudential basis by which the constitutional immunity operates to confine State legislative power.
80 The Attorney General made two submissions. First, the present case did not involve any discussion of government and political matters. Secondly, that the particular subsections of s101A of the Supreme Court Act did not infringe the implied freedom of communication. This latter submission was based on the proposition that the competing public interests involved may reasonably be balanced in the way the legislature has done and, accordingly s101A does not impose a relevant burden at all or is “reasonably appropriate and adapted to serve a legitimate end”.
81 The Claimant submitted that the relevant subsections of s101A of the Act did burden freedom of communications about governmental and political matters. The Claimant put its case in this respect in three different ways.
82 First, the Claimant suggested that judges and courts are within the sphere of public officials and bodies about whom the freedom could be exercised. Mr Rares SC who appeared for the Claimant, submitted that the conduct of the judiciary was itself a legitimate matter of public interest. He referred to R v Nicholls (1911) 12 CLR 280. (To similar effect are the references to judges by Deane J in Theophanous v Herald and Weekly Times Ltd (1993-1994) 182 CLR 104 at 179, 180, 182). Counsel also relied on certain observations of McHugh J in Stephens v West Australian Newspapers Ltd (1993-1994) 182 CLR 211 at 264 (which were quoted with approval in the joint judgment in Lange at 570-571):
“In the last decade of the twentieth century, the quality of life and the freedom of the ordinary individual in Australia are highly dependent on the exercise of functions and powers vested in public representatives and officials by a vast legal and bureaucratic apparatus funded by public monies. How, when, why and where those functions and powers are or are not exercised are matters that are of real and legitimate interest to every member of the community. Information concerning the exercise of those functions and powers are of vital concern to the community. So is the performance of the public representatives and officials who are invested with them. It follows in my opinion that the general public has a legitimate interest in receiving information concerning matters relevant to the exercise of public functions and powers vested in public representatives and officials.”
83 This passage, both as originally delivered and as approved in Lange, is concerned with the scope of qualified privilege for the purposes of the law of defamation. The inclusion of courts and judges in the scope of the subject matter with respect to which the public as a whole can be identified to have an interest, for purposes of applying the traditional rules of reciprocity in the context of qualified privilege for a defamatory statement, is not coextensive with the constitutional protection of freedom of communication. That protection, as Lange made clear, is an implication to be derived from the text and structure of the Constitution insofar as it makes provision for representative government. The conduct of courts is not, of itself, a manifestation of any of the provisions relating to representative government upon which the freedom is based.
84 There are references in Lange itself, and in earlier authorities, to the possibility of amendment of the Constitution at a referendum. Although, the submission was not made in these terms, it is possible to conceive of a referendum concerned with amending Chapter III of the Constitution in relevant respects. In my view any such link between freedom of communication and the judiciary is altogether too tenuous. The formulation ‘governmental or political matters’ is intended to confine the scope of the constitutional freedom. In theory, any subject matter may be the subject of a constitutional amendment. Section 128 is one of the provisions upon which the implied restriction has been based. It has not been suggested that it may operate on its own. To do so would lead to the conclusion that there was virtually no subject that was not of a ‘governmental or political’ character. This was not, as I understand it, the intention of the High Court in Lange.
85 The second way in which the Claimant put the case in this respect was based on the fact that the Attorney General is a member of the NSW Government and a public official and in that capacity exercises functions under s101A concerning the administration of criminal justice. The effect of s101A is that no one can attend the hearing of the questions which the Attorney has decided need to be considered by the Court. Nor, subject only to what may subsequently be published in the law reports, can anyone read or publish reports about the hearing, irrespective of the broader significance of the issue or issues which the Attorney General seeks to raise. It is true, as the Attorney submitted, that these functions are performed in a particular capacity as First Law Officer. But this is not inconsistent with the subject matter being governmental or political. The conduct of the Attorney in this respect is capable of giving rise to political issues about the performance by him of his official duties.
86 Insofar as this second basis focuses on the responsibility of a State Minister to a State Parliament and her or his accountability to a State electorate, I do not understand the line of authority in the High Court to go that far. There are references, including in the passages from Lange which I have quoted above, which envisage the possibility that State legislation may impinge upon the scope of the Constitutional immunity, but that is because of the impact that State legislation restrictive of freedom of expression may have upon the ability to communicate with respect to matters of actual or potential concern within the system of representative and responsible government established by the Constitution for the Commonwealth.
87 The interconnection between the systems of government and the overlapping of issues between the levels of government is such that the Court must not approach these matters with any rigid conception of the respective responsibilities of the Commonwealth and the States. Nevertheless, in a situation in which the proposition is advanced that the relevant impingement relates to the accountability to the electorate and the responsibility of members of the executive, the focus of attention must be upon the mechanisms for accountability and responsibility of Commonwealth ministers, not State ministers.
88 As McHugh J said in Levy v Victoria (1996-1997) 189 CLR 579 at 622:
“It is not open to doubt ( Lange v Australian Broadcasting Corporation (1997) 189 CLR 520) that the Constitution protects the freedom of ‘the people of the Commonwealth’ (the members of the Australian community) to communicate with each other concerning those political and government matters that are relevant to the system of representative and responsible government provided for by the Constitution. By a necessary indication drawn from ss7, 24, 64 and supporting sections, the Constitution strikes down laws burdening freedom of communication on these matters. (The freedom also extends to those matters that are relevant to the amendment of the Constitution under s128.) The implication is necessary because, without it, people of different backgrounds or with different perspectives or information could be legally prevented from exchanging views on matters relevant to choosing their representatives at federal elections and on matters relating to the performance of federal Ministers . Consequently, no Commonwealth or State law can validly impair the freedom of communication that the Constitution protects and, as the decision in Lange demonstrates, the common law cannot be at odds with the Constitution. The freedom protected by the Constitution is not, however, a freedom to communicate. It is a freedom from laws that effectively prevent the members of the Australian community from communicating with each other about political and government matters relevant to the system of representative and responsible government provided for by the Constitution .” (Emphasis added)
89 The issue is whether in the exercise of statutory powers under a State act which involves the responsibility of a State Minister to a State Parliament and of his or her accountability to a State electorate, falls within the scope of the constitutional freedom. Nothing in Lange itself, or any of the other authorities on the constitutional immunity, suggest that such a relationship on its own is sufficient.
90 The third way in which the Claimant put this aspect of the case focussed on the subject matter of the articles which gave rise to the contempt proceedings and, in turn, to the present litigation.
91 The parties in these proceedings referred to the record in other proceedings in the Court, being proceedings No 40304/99. In those proceedings the Attorney General sought a determination under s101A of certain issues of law which, he submitted, arose in proceedings in the Supreme Court, being proceedings in which the allegation of contempt was dismissed (Attorney General for the State of New South Wales v John Fairfax Publications Pty Limited [1999] NSWSC 318).
92 The Solicitor General of New South Wales, who appeared for the Attorney submitted:
“The articles which were the subject of the contempt proceedings in this case did not constitute a discussion of government and political matters, being concerned with the drug trade in Sydney and some of the persons alleged to be major importers and distributors”.
93 The Claimant submitted that the articles gave rise to important questions of government and political concern, specifically as to whether sufficient public resources were being devoted to the prevention of the drug trade.
94 There is no doubt that the Solicitor General’s submission is correct in the sense that one characterisation of the articles is that they concern “the drug trade”. However, the Lange test does not require the subject matter of the communication to be capable of characterisation in only one way i.e. as “governmental or political” communications. If the communications can be characterised in that way, as a matter of substance, then, irrespective of any other characterisation which may also be accurate, they may fall within the constitutional immunity.
95 The articles in question, on their face, were concerned with issues of major public significance, which have occasioned political debate of considerable intensity. The articles themselves manifest in a quite graphic way the degree of interconnection which exists between Commonwealth and State political issues and which has frequently been commented upon in the case law on the constitutional protection of freedom of communication. (See eg Nationwide News v Wills (1991-1992) 177 CLR 1 at 73 per Deane and Toohey JJ; Stephens supra per McHugh J at 264; Lange supra at 570-572).
96 The contempt proceedings were occasioned because one person, identified as the “top heroin distributor”, was being prosecuted for offences concerning the supply of heroin. It appears likely that those offences were State offences.
97 The publication also referred to other persons, including another specified individual described as the “top heroin importer”, a matter which involved Commonwealth offences. The interconnection between importation and distribution is close. This is emphasised by the fact that the publication refers to the activity of both State and Commonwealth law enforcement officials with respect to the drug trade.
98 A significant part of the publication talks about the effects of budgetary cuts on the ability of the Australian Federal Police to meet the demands placed upon the force by the illegal drug trade. Other matters of public significance include the steps taken to prevent individuals, including the person charged with offences under State law, from gambling in State regulated casinos, suggesting the use of that facility as a means of laundering money from the illicit trade.
99 The significance of the public issues debated will need to be determined more precisely in the Attorney’s appeal under s101A. For present purposes it is sufficient to note that the articles did raise questions of a governmental and political character at a Commonwealth level. Although the Attorney’s application under s101A cannot change the outcome with respect to the particular articles, nevertheless the questions of law sought to be agitated in the s101A application will be of significance for the ability of the media to publish other articles of the same character.
100 Notwithstanding the tender of the material from other proceedings, the articles to which I have referred are not directly relevant to the constitutional issue. They are illustrative - in the circumstances, a particularly pertinent example - of the potential application of the law of contempt, as may be elucidated by the Court upon an application to which the restrictions in s101A apply.
101 The issues to be agitated under s101A are legal issues one step removed from the direct application of the law of contempt in a way which impedes the freedom of communication. Nevertheless, in my opinion, the way in which the law of contempt is sought to be clarified in such proceedings, could impinge on matters of a governmental and political character in subsequent contempt proceedings.
102 The law of contempt as proposed to be clarified or determined by an application under s101A applies to a wide range of conduct including communications about matters of major social and political significance at a Commonwealth level. The process of consideration of the applicable law is inextricably interconnected with its practical operation. In my opinion, such consideration falls within the scope of the constitutional immunity.
103 As I have indicated above the position of the Attorney as a Minister responsible to a State Parliament is not a relevant connection for the application of the constitutional immunity. However, there is a different connection to the text and structure of the Constitution. The State courts to which s101A applies exercise federal jurisdiction invested in them by the Commonwealth Parliament. Contempt proceedings instituted by the Attorney, and applications with respect to such proceedings under s101A, may relate to the exercise by a State court of federal jurisdiction. A relevant example in the materials before the Court would be a prosecution for a Commonwealth offence relating to the importation of drugs.
104 The actions of the Attorney, including the submissions made on her or his behalf in this Court, are not permitted to be exposed to public scrutiny by force of a State statute. However, those actions may relate to the exercise by this Court of federal jurisdiction with respect to a criminal trial for a Commonwealth offence.
105 The law of contempt is, in part, directed to ensuring that persons accused of Commonwealth offences receive a fair trial. (See e.g. Hinch v Attorney-General for the State of Victoria (1987) 184 CLR 15 at 27-28, 58-59, 76, 87). The law of contempt is part of the common law of Australia, which is applicable in all courts including federal courts and State courts exercising federal jurisdiction. The role of a State Attorney in instituting and pursuing proceedings with respect to the law of contempt is one manifestation of the integration which exists between federal and state levels of government. (See e.g. Nationwide News Pty Ltd v Wills supra at 142, 216; Theophanous v Herald and Weekly Times supra at 122, 164; Stephens v West Australia Newspapers Ltd supra at 232, 257, 264; Lange supra at 571-572; Levy v Victoria supra at 596, 633, 642). The significance of integration of State courts in a national judicial system was emphasised by McHugh J in Kable supra at 114-115. See also John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36 esp at [34], [53], [67] and [68].
106 The role of the State Attorney under s101A with respect to federal jurisdiction is indivisible from that role with respect to state jurisdiction. The common law which is to be elucidated impinges on both. Furthermore, the policy of a State Attorney manifest in the contentions put on her or his behalf may be relevant to decisions at a Commonwealth level on the exercise of such powers as the Commonwealth may have to affect the operations of State courts in the exercise of federal jurisdiction or, indeed, whether to modify the conferral of such jurisdiction.
107 For these reasons, in my opinion, the institution and conduct of proceedings by the Attorney under s101A falls within the conception of governmental and political matter within the constitutional immunity.
108 The Attorney submitted, in the alternative, that if the communication bore the requisite governmental or political character, s101A was reasonably appropriate and adapted to serve a legitimate objective; namely, the protection from further adverse publicity of a person acquitted of a criminal charge.
109 The task of balancing the public interest in freedom of speech against other public interests, has been the subject of a considerable body of jurisprudential writing and judicial commentary. Lange itself involved the process of striking a balance between the right of reputation and freedom of speech. The joint judgment said at 568-569:110 Similar considerations arise with respect to the law of contempt. The courts have previously considered submissions to the effect that the law of contempt, or some statutory equivalent thereof, contravenes the protection of freedom of communication in the Constitution. As Gleeson CJ said in Attorney General (NSW) v Time Magazine (NSW Court of Appeal, 15 September 1994, unreported) (quoted in Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540 at 570):
“… the critical question in the present case is whether the common law of defamation as it has traditionally been understood, and the New South Wales law of defamation in its statutory form, are reasonably appropriate and adapted to serving the legitimate end of protecting personal reputation without unnecessarily or unreasonably impairing the freedom of communication about government and political matters protected by the Constitution.
The purpose of the law of defamation is to strike a balance between the right to reputation and freedom of speech. It is not to be supposed that the protection of reputation is a purpose that is incompatible with the requirements of freedom of communication imposed by the Constitution. The protection of the reputations of those who take part in the government and political life of this country from false and defamatory statements is conducive to the public good. The constitutionally prescribed system of government does not require - to the contrary, it would be adversely affected by - an unqualified freedom to publish defamatory matter damaging the reputations of individuals involved in government or politics. The question then is whether the common law of defamation, as it has traditionally been understood, and the statute law regulating the publication of defamatory matter are reasonably appropriate and adapted to the protection of reputation having regard to the requirement of freedom of communication about government and political matters required by the Constitution.”
“The common law principles … are … the result of a balancing of competing interests; the public interest in freedom of expression and the public interest in the administration of justice. Freedom of expression is not unconditional. Expression can, for legally relevant purposes, be free even though it is subject to other legitimate interests …”
The Court rejected the submission that the implied constitutional freedom was an answer to the charge of contempt in that case.
111 Similar observations concerning the compatibility of the law of contempt as it applies to publications with the implied constitutional freedom have been made in other cases. (See e.g. John Fairfax v Doe (1995) 37 NSWLR 81 at 110-111 per Kirby P with whom Gleeson CJ agreed; Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 esp 323-324 per Ipp J; Theophanous v Herald and Weekly Times supra at 187; Civil Aviation Authority v ABC supra at 560, 570; c/f Re Colina; Ex parte Torney [1999] 73 ALJR 1576 at [61]).
112 A balancing exercise between the public interest in the administration of justice and the public interest in freedom of speech is in accordance with the long established and frequently applied passage from Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242 at 249-250 per Jordan CJ. This remains the authoritative approach. (See Hinch v Attorney-General (Vic) supra esp at 19, 35-37, 64-65, 82. See also Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 59-60, 95, 98, 133-134, 175; Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650 at 682-683 per Priestley JA; Attorney-General for New South Wales v John Fairfax & Sons Ltd and Bacon (1985) 6 NSWLR 695 at 714-715 per McHugh JA).
113 Different considerations arise in a statutory context in which the Court is not able to perform any such balancing exercise. The Parliament has decreed in s101A that, with respect to this particular area of litigation, the appropriate balance must always be struck in favour of what can be described as the administration of justice and against the interests of freedom of speech.
114 As the extract from 561-562 in the joint judgment in Lange that I have quoted above makes clear, the Court’s adoption of the formulation “reasonably appropriate and adapted”, was intended to encompass a number of ways in which the test had been expressed in earlier cases, including in the language of “proportionality”.
115 For purposes of determining the compatibility of the common law and of statutes, including Commonwealth and State statutes, with the freedom of communication required by the Constitution, the Court drew on a body of jurisprudence which had been developed with respect to the determination of whether Commonwealth legislation fell within the permissible scope of a head of power found within s51 of the Commonwealth Constitution, originally the external affairs power and, subsequently, particularly those powers classified as “purposive” powers.
116 An early application of this approach is Davis v The Commonwealth (1988) 166 CLR 79 where the Court had to consider the combined effect of s22(1)(a) and s22(6)(d)(i) of the Australian Bicentennial Authority Act 1980 (Cth) which regulated the use of expressions such as “Bicentennial”, “200 Years”, “Australia”, “Sydney”, “and Melbourne”, when used in conjunction with “1788”, “1988” or “88”. In a joint judgment, Mason CJ, Deane and Gaudron JJ said at 100:
“Here the framework of regulation created by s22(1)(a) with s22(6)(d)(i) and (ii) reaches far beyond the legitimate objects sought to be achieved and impinges on freedom of expression by enabling the Authority to regulate the use of common expressions and by making unauthorized use a criminal offence. Although the statutory regime may be related to a constitutionally legitimate end, the provisions in question reach too far. This extraordinary intrusion into freedom of expression is not reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power”.
117 For purposes of determining the present case, the closest analogy for the application of this test is the decision of the High Court in Nationwide News Pty Ltd v Wills supra. In that case, two broad approaches are discernible, albeit the Court was unanimous in the ultimate result. The section which was struck down prohibited writing or speech calculated to bring the Industrial Relations Commission, or a member thereof, into disrepute.
118 Brennan J and Gaudron J, in separate judgments, and Deane and Toohey JJ in a joint judgment, invoked the constitutional protection of freedom of communication. All acknowledged that some degree of protection was warranted and consistent with the constitutional immunity. Their Honours held, however, that the section went too far. Although variously expressed, each of their Honours held, in essence, that the section would apply even to fair and reasonable criticism which had the prohibited tendency of bringing the Commission into disrepute (53, 78, 79, 95). Gaudron J expressly used, at 95, the formulation “reasonably and appropriately adapted”.
119 The other three members of the Court approached the matter in a different but, for present purposes, essentially equivalent way. Mason CJ applied a test of “reasonable proportionality” (29) and, with respect to the incidental power, a test of “reasonably and appropriately adapted” (30) and held that the degree of protection afforded by the section was beyond the scope of the Commonwealth legislative power. Dawson J reached the same conclusion preferring a test of “sufficient connexion” to one of “proportionality” (88-89). McHugh J also applied a test of “reasonably and appropriately adapted” to the incidental power (105) and concluded that the section, which was not limited to “unwarranted attacks”, went too far (102 and 104)
120 In the present proceedings the Claimant challenges the validity of each of subs (7), (8) and (9) of s101A. These subsections create three substantive prohibitions and an enforcement mechanism.
121 The substantive prohibitions are:
(i) The obligation to hold the whole of the proceedings in camera (subs (7)).(ii) The prohibition of publication of any report of any submission made by the Attorney General being the question of law referred to in s101A(1) (subs (8)(a)).
(iii) The prohibition of publication of any report which would disclose the name or identity of the alleged contemnor (subs (8)(b)).
122 The enforcement mechanism is found in subs (9) which provides that any publication in contravention of subs (8) is punishable as a contempt. This section refers to each of the two paragraphs of subs (8), namely the prohibition on publishing a report of any submission and disclosure of the name and identity of the alleged contemnor.
123 It can readily be accepted that there is a legitimate objective compatible with representative government and justifying some form of restriction on freedom of communication, in protecting persons found not to be guilty of an alleged criminal contempt from questioning of the successful defence of the charges. The learned Solicitor General for New South Wales referred the Court to the rationale for the in camera provisions given by the Attorney General in the relevant second reading speech: “so that the party found not guilty of contempt is not exposed to any further public scrutiny” (Hansard, Legislative Council, 17 October 1996 at 14969).
124 In Attorney General’s Reference (No 1 of 1983) [1983] 2 VR 410 at 412, the Full Court of the Supreme Court of Victoria said, with respect to the equivalent Victorian provision in s450A of the Crimes Act 1958, after referring to the absence of any provision for concealment of the identity of the Respondent:
“After all the respondent to such a reference must ex hypothesi have been acquitted of a serious criminal charge and he should not be subjected to public innuendo in the event of an appellate Court being of the opinion that through an erroneous decision on a point of law the question of his guilt or innocence was wrongly removed from the jury or the jury were misdirected as to some question of law arising at the trial”.
125 The equivalent English section and Criminal Appeal Rules provided that the identity of a Respondent is not to be disclosed without his or her consent. (See Attorney General’s Reference (No 1 of 1974) [1974] 1 QB 744 at 748F).
126 There are of course occasions on which the facts and issues involved in particular proceedings become so notorious that it is impossible to report discussion of the issues without revealing the identity of the acquitted person. An occasion of that character arose in Victoria recently. In Director of Public Prosecutions Reference No 2 of 1996 [1998] 3 VR 241, Brooking JA with whom Winneke P and Tadgell JA agreed said at 243:
“We should do what we can within reason to preserve the anonymity of the respondents (as I shall call the persons acquitted): Attorney General’s Reference (No 1 of 1983) [1983] 2 VR 410 at 411-12. I have considered whether this end would be served by encoding the outline of the prosecution case and the terms of reference of the authority by using ciphers for the names of persons and places. But the events have become so notorious - I do not use the word dyslogistically - and those who read this judgment would still recognise the transactions. And so only the respondents will remain anonymous.”
127 Notwithstanding the difficulty that there may be on occasions to conceal the identity of individuals, such is feasible in many, if not most, cases. Accordingly, when the Parliament prescribed in subs (7) that the whole of any proceedings must be in camera, it went well beyond what was required in order to serve the objective of the legislation. Similarly when, in subs (8)(a), Parliament prohibited the publication of any report of any submission made under subs (1) of the section, it also went well beyond what was required in order to serve the objective.
128 In each case the prohibition attaches to every aspect of the hearing of the application, whether protective of the person entitled to anonymity, or not. The substance of the issues to be determined will generally be of broader significance and will not involve or require revelation of the identity of the acquitted contemnor.
129 In my opinion, in these two respects the Parliament went too far in the sense that it intruded into the freedom of communication guaranteed by the Constitution in a manner not reasonably appropriate and adapted to achieving the legitimate objective of protecting persons who have been acquitted of criminal contempt.
130 In my opinion subs (7) and (8)(a) are outside that legitimate range of legislative choice.
131 The position with respect to subs (8)(b) is not so clear. Plainly the paragraph is specifically directed at the object which I have accepted to be legitimate. A defect that can be said to arise within it is that it makes no provision for any exception to the prohibition. Accordingly, even a person who wishes not to remain anonymous and to actively defend her or his or its position in a public manner - a position which it can be anticipated would frequently be the case with media companies like the Claimant - cannot disclose her or him or itself to be the subject of the curial proceedings. There is no scope for the operation of the maxim omnes licentiam habere his quae pro se indulta sunt renunciare - in effect, that every person may renounce a benefit or waive a privilege which the law has conferred upon the person. (See Brooms Legal Maxims 10th ed (1939) pp478-479).
132 I proceed on the assumption that subs 8(b) cannot be read down so as to exclude “disclosure” by a person who has disclosed him or her or itself. Neither party in these proceedings advanced such a construction.
133 I am, on balance, of the view that the promulgation of a complete prohibition in this regard, without provision for exception of any character, does not constitute a rule that is not reasonably appropriate or adapted to serve the legitimate end. It constitutes a legitimate legislative choice. It is open to find that there is a public interest in ensuring that no such disclosure occurs which is broader than the individual interests involved.
134 Accordingly, in my opinion, the Court should make the following orders:
1 Declare that each of subs (7) and (8)(a) of s101A of the Supreme Court Act 1970 is invalid.2 Declare that subs (9) of s101A of the Supreme Court Act 1970 is invalid insofar as it applies to a publication in contravention of subs (8)(a).
3 Order the Opponent to pay the Claimant’s costs.
135 PRIESTLEY JA: On 28 May 1998 the New South Wales Attorney General filed a summons charging John Fairfax Publications Pty Ltd (Fairfax), a newspaper company, with contempt of court. Fairfax had published articles on a matter of public interest (in fact of great concern to the community in New South Wales) in which serious allegations were made about a man later to stand trial on criminal charges.136 The contempt proceedings were heard by Barr J. Fairfax relied on what is often called the Bread Manufacturers or the Truth and Sportsman defence, based on what was said by Jordan CJ in ex parte Bread Manufacturers Ltd: Re Truth and Sportsman Ltd (1937) SR(NSW) 242. It is convenient to speak of the matter as a defence, even although that creates a risk of causing a misunderstanding about onus, which always rests on the prosecution.
137 What Jordan CJ said was:138 That statement has been approved many times by courts of the highest authority, including the High Court. When, on 9 April 1999, Barr J dismissed the summons, he based his reasons on the Truth and Sportsman line of authority. His conclusion was:
“ It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a Court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant. ” (at 249)
“ The articles were part of a substantial series of articles dealing with subject matter of substantial broad public interest. The trial was likely to raise narrower issues which were only incidental to those canvassed in the articles. In view of these matters and the other matters I have dealt with I think that it is reasonably open to say that the detriment to the trial was outweighed by the public interest in the freedom of communication.
I am not satisfied that the plaintiff has negated the defence of public interest. ”
139 Barr J’s reasons are available to anyone who wants to read them.
140 The Attorney General then filed a summons dated 28 April 1999 pursuant to s 101A of the Supreme Court Act 1970 asking the Court of Appeal to determine questions of law arising in connection with Barr J’s dismissal of the contempt proceedings.
141 Section 101A, which was inserted in the Supreme Court Act in 1996, is as follows:
“ (1) At any time after the conclusion of contempt proceedings in which the alleged contemnor is found not to have committed contempt, the Attorney General may submit to the Court of Appeal any question of law arising from or in connection with the proceedings.
(2) The Attorney General must submit with the question to be determined a statement of the circumstances out of which the question arose, and thereafter must furnish such further statement as the Court of Appeal may require.
(3) The Court of Appeal has jurisdiction to hear and determine any question submitted to it under this section.
(4) The determination of the Court of the Appeal of the question submitted does not in any way affect or invalidate any finding or decision given in the contempt proceedings.
(5) The alleged contemnor is entitled to be heard on the question submitted and, if it appears that the alleged contemnor does not propose to be represented, the Attorney General is to instruct counsel to argue the question before the Court of Appeal on behalf of the person.
(6) The reasonable costs of legal representation of the alleged contemnor in proceedings under this section are to be paid by the Crown.
(7) Proceedings under this section are to be held in camera, except that a legal practitioner may be present at the proceedings for the purpose of reporting the case for any lawful purpose of the Council of Law Reporting for New South Wales.
(8) A person:
(a) must not publish any report of any submission made under subsection (1), and
(b) must not publish any report of proceedings under this section so as to disclose the name or identity of the alleged contemnor.
(9) Any publication in contravention of subsection (8) is punishable as contempt of the Court.
(10) In this section:
alleged contemnor means the person charged with contempt in contempt proceedings.
contempt means contempt of the Court or of any other court.
contempt proceedings means proceedings before the Court in a Division for the punishment of contempt.
(11) This section applies to criminal contempt only, and does not apply to civil contempt. ”
142 It seems that the reason for the enactment of the section was the wish of the State to get rulings on points of law after acquittals of defendants charged with contempt, even although success by the State would not affect the result of the prosecution; the purpose of the impugned subsections was said to be to spare acquitted defendants from further publicity about failed contempt charges.
143 When the Attorney General’s summons came before this court, Fairfax challenged the validity of subsections (7) and (8) and, consequentially, (9), of s 101A. Fairfax did not wish to have its identity concealed.
144 In order to have its challenge to the validity of the subsections decided separately from the Attorney General’s questions of law Fairfax itself commenced independent proceedings for a declaration of invalidity of the three subsections.
145 In my opinion Fairfax’s challenge is well founded. I will explain briefly why I think the three subsections in question are beyond the power of the State’s Parliament to enact.
146 In considering the questions raised by the Attorney General, and the opposing arguments about them by the Attorney General and Fairfax the court will be exercising federal jurisdiction. One reason why this will be so is that Fairfax intends to argue questions concerning the interpretation of the Commonwealth Constitution. Decisions of the High Court leave no doubt that the arguing of such questions in the way proposed by Fairfax will have the result that this court will be exercising the judicial power of the Commonwealth in deciding the proceedings in which they arise. Further, the place of State Supreme Courts in the scheme of the Commonwealth Constitution gives them a status and role beyond that merely as part of State judicial systems. “They are part of an integrated system of State and federal courts and organs for the exercise of federal judicial power as well as State judicial power”: McHugh J in Kable v Director of Public Prosecutions(NSW) (1996) 189 CLR 51 at 114-115; See also Gaudron J at 102, Gummow J at 138 and 142: “the judicial power of the Commonwealth is engaged, at least prospectively, across the range of litigation pursued in the courts of the States”.
147 The reason why the impugned subsections put the court into the position where to comply with them would be incompatible with the court’s exercising the judicial power of the Commonwealth appears in Russell v Russell (1976) 134 CLR 495. In that case the High Court held that so much of an Act of the Commonwealth Parliament as required State Supreme Courts to hear certain cases under the Family Law Act in camera was invalid. Gibbs J said:
“ It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted ‘publicly and in open view’ ( Scott v Scott [1913] AC 417 at 441). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for ‘publicity is the authentic hall-mark of judicial as distinct from administrative procedure’ ( McPherson v McPherson [1936] AC 177 at 200). To require a court invariably to sit in closed court is to alter the nature of the court. Of course there are established exceptions to the general rule that judicial proceedings shall be conducted in public; and the category of such exceptions is not closed to the Parliament. The need to maintain secrecy or confidentiality, or the interests of privacy or delicacy, may in come cases be thought to render it desirable for a matter or part of it, to be held in closed court. If the Act had empowered the Supreme Courts when exercising matrimonial jurisdiction to sit in closed court in appropriate cases I should not have thought that the provision went beyond the power of Parliament. In requiring them to sit in closed court in all cases - even proceedings for contempt - the Parliament has attempted to obliterate one of their most important attributes. This it cannot do.
In my opinion the provisions of s 97 are an attempt to regulate the State courts which are invested with federal jurisdiction. In so far as the provisions of that section relate to courts other than the Family Court they go beyond the powers of the Parliament and are invalid. ” (at 520-521)
148 See also Barwick CJ at 506-7, and Stephen J at 532.
149 In my view what Barwick CJ, Gibbs J and Stephen J said in that case applies equally to State legislation as to Commonwealth. Kable is an example of this. In that case it was held that a New South Wales Statute which required the New South Wales Supreme Court to exercise functions incompatible with the exercise of the judicial power of the Commonwealth was invalid.
150 McHugh J said the Act was invalid “because it purports to vest functions in the Supreme Court ... that are incompatible with the exercise of the judicial power of the Commonwealth by the Supreme Court of that State” (at 109). Later, under a subheading “Legislatures cannot alter or undermine the constitutional scheme set up by Ch III” he said:
“ ... no State or federal parliament can legislate in a way that might undermine the role of those [State] courts as repositories of federal judicial power. Thus, neither ... Parliament ... can invest functions in the Supreme Court ... incompatible with the exercise of federal judicial power. Neither Parliament, for example, can legislate in a way that permits the Supreme Court while exercising federal judicial power to disregard the rules of natural justice or to exercise legislative or executive power. Such legislation is inconsistent with the exercise of federal judicial power. However, the Act does not seek to interfere with the invested federal jurisdiction of the Supreme Court. On its face it is directed to the exercise of State, not federal, jurisdiction. But for present purposes that is irrelevant. The compatibility of State legislation with federal judicial power does not depend on intention. It depends on effect. If, as Gibbs J pointed out in The Commonwealth v Queensland (1975) 134 CLR 298 at 314-315, State legislation has the effect of violating the principles that underlie Ch III, it will be invalid. ” (at 116)
151 Toohey J (esp at 98), Gaudron J (esp at 103 and 107) and Gummow J (esp at 127 and 143) also base their conclusions on the “incompatibility” proposition, among others.
152 Many contempt cases, like the one in question here, involve the Truth and Sportsman defence. Contempt cases also frequently involve the deciding court in considering a closely related subject, what is often called the common law right of freedom of speech.
153 It is in my opinion wholly inappropriate that such cases should be heard in camera, or that the arguments in them should not be allowed to be published. Because such restrictions are also incompatible with the exercise of judicial power by this court when exercising federal jurisdiction, they are in my opinion beyond the power of the State legislature to enact.
154 Conclusion.
For the foregoing reasons this Court should, in my opinion declare subsections 7, 8 and 9 of s 101A invalid.
155 As to costs, I propose that Fairfax’s costs of the proceedings be paid by the Attorney General.
156 Further opinion.
Since reaching the conclusion expressed above I have had the benefit of reading in draft the reasons of the Chief Justice. He makes clear that Fairfax relied on two separate arguments in its challenge to the validity of the impugned subsections, one which he calls the Kable point and the other the Lange point. In a way which I have found instructive, the Chief Justice deals fully with both points. His conclusion is that Fairfax should succeed in obtaining declarations of invalidity of the greater part of the impugned subsections. He reaches this conclusion on the basis of the Lange point, but not the Kable point. Since in my own opinion I have dealt only with the Kable point, which differently from the Chief Justice I think should succeed, I need to add to what I have already said.
157 So far as the Lange point is concerned, I agree with the views of the Chief Justice. Fairfax should succeed in its application on this ground also, to the extent explained by the Chief Justice.
158 So far as concerns the Kable point, a step essential to my conclusion rests on the observations in Russell v Russell to which I have already referred, to the effect that it is an essential aspect of the character of courts of law that they are held openly and not in secret. In the passage set out above in which Gibbs J explained that proposition, he noted that there were established exceptions to the general rule that judicial proceedings should be conducted in public. From the tenor of his other remarks and those of the other judges in the case, I do not think that any of them contemplated that the exceptions enabled a parliament, to adapt Gibbs J’s words, to attempt to obliterate one of the most important attributes of courts.
159 In Coulter v The Queen (1988) 164 CLR 350 a majority in the High Court said that the propositions stated by Gibbs J in Russell v Russell applied only to the procedure of courts in the ordinary course of litigation, and so, not in the case before them, which, as they had noted, was an application for leave which was not in the ordinary course of litigation (at 357). Coulter was a case in which the validity of a rule authorising the Full Court of the Supreme Court of South Australia to deal with applications for leave to appeal without an oral hearing was attacked. The majority in Coulter said that such a rule “does not alter the nature of the court” (at 357).
160 In my opinion the position is different in the present case. By force of s 101A further jurisdiction was given to the Court of Appeal. In my opinion the ordinary course of litigation then became enlarged to include within it litigation within this further jurisdiction of the Court of Appeal. Also I think that the impugned provisions in the present case do alter the nature of the court.
161 Finally, I need to record that it is part of my reasoning in reaching the conclusion that the Kable point should be upheld, that in my opinion the impugned provisions compromise the integrity of the Supreme Court and the appearance of independence of the court: these phrases are taken from Kable; see Gaudron J at 107 (“integrity”), Toohey J at 98, McHugh J at 117-119, 121 and 124 and Gummow J at 133 and 134. It seems to me that the public can have little confidence in a system which compels a court of appeal to hear in secret arguments put on behalf of the government aimed at restricting freedom of speech.
162 Although the orders which in my opinion should be made (see pars 154 and 155) would go one step further than those proposed by the Chief Justice, it also follows from my opinion that I agree with the orders proposed by the Chief Justice.
163 MEAGHER JA: The first question in this case is whether an Act of the Parliament of New South Wales requiring the hearing of certain curial proceedings in camera offends the “principle” laid down by the High Court in Kable v The Director of Public Prosecutions for the State of New South Wales (1996) 189 CLR 51. On this question I respectfully agree with the conclusions reached by the Chief Justice, and with his reasons.
164 However, there are some aspects of the current case which deserve, I think, further treatment. The first is to demonstrate the extreme narrowness of the restrictions imposed by s.101A of the Supreme Court Act. It applies to proceedings involving a point of law on appeal to the Court of Appeal. Before this question of law is isolated, of course, there has had to have been a trial at first instance; that trial would have been in open court, and every member of the public had the right to attend that trial and make such oral or written comments on any aspect of it which pleased him or her. The mere question of law (in which one would have thought no great number of citizens would be interested) which is translated to the Court of Appeal is to be heard in camera. It would involve the tender of no document and the giving of no oral testimony. Moreover, if someone is avid for learning on that question of law, he may read all about it as soon as the Court of Appeal delivers its judgement, when he may discuss it in public orally or in writing, provided he does not disclose the identity of the accused. Thus, nothing of any importance is withheld from the public; and the accused is protected from being placed in double jeopardy. Nor is double jeopardy a danger of no significance. The maxim “nemo debet bis vexari, si eadem causa” is a fundamental principle of our law, and an accused, once acquitted of a charge, should not be compelled to suffer the indignity of further accusations of that charge.
165 Nor is the notion that whole trials, or some parts of trials, can be heard in camera exactly novel. The decision of the House of Lords in Scott v Scott [1913] AC 417 is usually cited as the starting point of any discussion on this topic. Certainly, in that case their Lordships reiterated the fundamental principle that, in general, justice must be administered in open courts; and, equally certainly, it must be conceded that a Court which always sat in camera would not be deserving of the description of “a court”. But that case itself is replete with illustrations of circumstances in which the requirement of a hearing in open court may be legitimately dispensed with. Litigation involving defence of the realm, industrial secrets and the affairs of lunatics are all examples of circumstances in which litigation can be properly conducted in closed court. The jurisdiction to sit in camera is much wider than in the examples I have stated: even in Scott v Scott itself, their Lordships seem to have acknowledged the right to a hearing in a closed court wherever justice cannot otherwise be done; the dominant general rule about publicity being, indeed, not that all litigation must be conducted in public, but that all litigation must be conducted in such a way as to ensure that justice is done.
166 The amplitude of the Court’s power to sit in camera is reflected in s.80 of the Supreme Court Act. It is in the following terms:
“Subject to any Act, the business of the Court my be conducted in the absence of the public -
(a) on the hearing of an interlocutory application, except while a witness is giving oral evidence;
(b) where the presence of the public will defeat the ends of justice;
(c) where the business concerns the guardianship, custody or maintenance of an infant;
(d) where the proceedings are not before a jury and are formal or non-contentious;
(e) where the business does not involve the appearance before the Court of any person;
(f) in proceedings in the Equity, Probate or Protective Division, where the Court thinks fit;
(f1) in proceedings on an application under section 25 or 26 of the Summary Offences Act 1988; or
(g) where the rules so provide.”
167 Moreover, as the Chief Justice points out, whilst the inherent power of the Court may not extend to the creation of new occasions for the hearing of cases in camera, the power of Parliament certainly does so extend: see the quotation from Gibbs J in Russell v Russell cited by the Chief Justice.
168 Finally, adulation of the right to have an open court in most cases must not detract from the realization that in those cases where a closed court is permitted, one is dealing with civil rights. For example, an inventor has a civil right to disclose his invention in circumstances where no potential rival can injure it; a lunatic who has to suffer the indignity of a Court discussing his affairs does not have to suffer the further indignity of the salacious press prying into them. They both have a civil right to be free of that. Likewise, a person acquitted of a criminal offence has a civil right to see that he is not bis vexatus.
169 It must now be considered to what, if any, extent this right, as affirmed in s.101A of the Supreme Court Act, collides with Kable v The Director of Public Prosecutions (NSW) (1966) 189 CLR 51. What, if anything, that case decided by way of ratio I do not know. Nor do others: R v Moffat [1998] 2 VR 229. However, assuming that it means that no Parliament, state or federal, may invest a State Supreme Court with a jurisdiction the exercise of which is incompatible with that Court’s exercise of the judicial power of the Commonwealth, the question becomes: is the temporary recognition of an individual’s right not to be exposed to double jeopardy “incompatible” with the exercise of the Commonwealth’s judicial power? It would be astonishing if that question were answered in the affirmative.
170 The next question is to what, if any, extent s.101A collides with the equally elusive High Court decision of Lange v Australian Broadcasting Corporation (1997) 189 CLR. That case apparently decides that there is in the Constitution an implied prohibition on any interference with discussion of matters of government on politics. I do not see how this rather surprising principle, however its scope be formulated, has anything to do with the present case. This case arises because certain newspaper articles were alleged by the Attorney General to constitute a contempt of Court in that they impeded the fair trial of a person in what might be described as a “drug case”. The contempt case was heard in the normal way, and resulted in an acquittal of the person charged. The Crown now wishes to appeal on a question of law arising from that acquittal.
171 The background of the criminal trial related to Federal criminal charges of wrongful importation of drugs and State criminal charges of wrongful distribution of those drugs. All chargers involved an examination of the behaviour of Federal and State police.
172 The judgment of the Chief Justice suggests that the “principle” of Lange’s Case is infringed because the newspaper articles said to constitute a contempt dealt with issues of public significance.
173 Let it be conceded that the issues relating to the importation and distribution of drugs were of public significance, although accumulated ennui makes such a concession difficult to utter. There is nothing in the legislation which prevents those issues being discussed, and endlessly. Every aspect of the criminal trial can be discussed. Every aspect of the contempt case can be discussed. The only thing which, according to the legislation, cannot be discussed is in effect, the legal argument between Bar and Bench on some question of law which arises out of the acquittal, and even that can be discussed once the appeal has been heard. In these circumstances the possibility of s.101A being contrary to the doctrine in Lange’s Case is non-existent.
174 I would dismiss the summons with costs.**********
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