Laurance v Katter

[1996] QCA 471

IN THE COURT OF APPEAL	[1996] QCA 471
SUPREME COURT OF QUEENSLAND

Appeal No. 80 of 1995

Brisbane

Before Fitzgerald P.
Davies J.A.
Pincus J.A.

[Laurance v. Katter]

BETWEEN:

PETER MAXWELL LAURANCE

Plaintiff

AND:

ROBERT CARL KATTER

First Defendant

ROLAND JOHN ELLEMS

Second Defendant

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 22 November 1996

This proceeding came before the Court on demurrer, with the numerous issues poorly defined, and it

was necessary to attempt to distil from the pleadings questions which can appropriately be answered

at this point. Ultimately, I have found it unnecessary to decide many of the points argued. Further, the

Court is not called upon to decide the merits of the dispute between the parties, or whether the legal

principles which must be applied reflect the contemporary public interest.

The plaintiff, by whom the demurrer was delivered, is a businessman, and the first defendant is a member of the Commonwealth Parliament. On 1 June and 6 June 1994, the first defendant made

statements in Parliament imputing impropriety to the plaintiff - or so it is to be assumed for present

purposes - and subsequently on 8 June 1994, the first defendant said (i) on radio and (ii) on television:

(i)          “... I’m not going to be alleging anything except for the statements I have made inside Parliament. Every single one of those statements was backed up with the hardest of hard evidence. Every single one of them was fully documented. I’m holding a file in my hand here with some 15 source documents and every single one of those statements was backed up by those source documents.”

(ii)         “Every single statement that I have made has been backed by the hardest of documentary evidence. The information I put into the House yesterday was backed up by a Statutory Declaration. The information a week before and yesterday again was backed up by cabinets submissions and by a letter signed by Graham Richardson himself.

... You have the documentary evidence available to you that I have available to me. The documentary evidence says proof positive of every single statement that I have made.”

According to the plaintiff, who has set out in his statement of claim what was said by the first defendant

in Parliament, the first defendant’s statements on radio and television were broadcast throughout

Australia. The plaintiff has sued the first defendant for defamation, based on what he said on radio and

television, which it is alleged adopted and reaffirmed what he had said in Parliament.

Before this Court, the plaintiff accepted that he can only establish his cause of action by proving what

the first defendant said in Parliament, and that his statements were both false and defamatory.[1] The first

[1]             As stated earlier, the issues are poorly defined by the pleadings, particularly having regard to differences in the law in the various parts of Australia where the first defendant’s statements were broadcast. However, the plaintiff has claimed examplary damages and the first defendant has sought to raise a variety of defences, and it was not in dispute that the action would involve both the truth or falsity of the first defendant’s statements in Parliament and his “good faith”, even if it might be theoretically possible to separate his “good faith” when he spoke in Parliament from

defendant’s primary contention was that the plaintiff’s action must fail by virtue of s. 16 of the
Parliamentary Privileges Act 1987 (Cth.).
Section 16 of the Parliamentary Privileges Act is in the following terms:

“16. (1) For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.

(2) For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, ‘proceedings in Parliament’ means all words spoken and acts done in the course of, or for the purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes -

(a)         the giving of evidence before a House or a committee, and evidence so given;

(b)        the presentation or submission of a document to a House or a committee;

(c)         the preparation of a document for purposes of or incidental to the transacting of any such business; and

(d)        the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.

(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of -

(a)         questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

(b)        otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

(c)         drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

his “good faith” when he made the broadcasts.

(4) A court or tribunal shall not -

(a)         require to be produced, or admit into evidence, a document that has been prepared for the purpose of submission, and submitted, to a House or a committee and has been directed by a House or a committee to be treated as evidence taken in camera, or admit evidence relating to such a document; or

(b)        admit evidence concerning any oral evidence taken by a House or a committee in camera or require to be produced or admit into evidence a document recording or reporting any such oral evidence, unless a House or a committee has published, or authorised the publication of, that document or a report of that oral evidence.

(5) In relation to proceedings in a court or tribunal so far as they relate to -

(a)         a question arising under section 57 of the Constitution; or

(b)        the interpretation of an Act,

neither this section nor the Bill of Rights, 1688 shall be taken to prevent or restrict the admission in evidence of a record of proceedings in Parliament published by or with the authority of a House or a committee or the making of statements, submissions or comments based on that record.

(6) In relation to a prosecution for an offence against this Act or an Act establishing a committee, neither this section nor the Bill of Rights, 1688 shall be taken to prevent or restrict the admission of evidence, the asking of questions, or the making of statements, submissions or comments, in relation to proceedings in Parliament to which the offence relates.

(7) Without prejudice to the effect that article 9 of the Bill of Rights, 1688 had, on its true construction, before the commencement of this Act, this section does not affect proceedings in a court or a tribunal that commenced before the commencement of this Act.”

The plaintiff argued that sub-s. 16(3) does not prevent him from proving what the first defendant said

in Parliament and that it was false and defamatory, and that, if it did, it would be unconstitutional and

invalid. The provisions in the Commonwealth Constitution upon which the Parliamentary Privileges Act

is based are ss. 49 and 51(xxxix) - the “incidental power”: use of those provisions for such a purpose

was sanctioned in R. v. Richards, ex parte Fitzpatrick and Browne (1955) 92 C.L.R. 157. The

constitutional provision of primary importance, s. 49, provides:

“The powers, privileges and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.”

Amongst the relevant privileges and immunities of the House of Commons at the material time was that

provided by article 9 of the Bill of Rights 1688 in the following terms (converted to modern English):

“Freedom of Speech: That the freedom of speech and debates or proceedings in
Parliament ought not to be impeached in any Court or place out of Parliament.”

The Parliamentary Privileges Act was passed by the Commonwealth Parliament following conflicting

decisions concerning the effect of article 9.[2]
The first question which arises concerns the meaning of sub-s. 16(3) of the Parliamentary Privileges Act

[2]             Some of those decisions are referred to in the Explanatory Memorandum to the Parliamentary Privileges Bill, and see Amann Aviation Pty Ltd v. Commonwealth of Australia (1988) 19 F.C.R. 223.

and its effect in relation to the plaintiff’s claim. The prohibitions concerning “evidence ..., questions ...,

statements, submissions [and] comments ... concerning proceedings in Parliament”, which includes

“words spoken” in Parliament (sub-s. 16(2)), are not absolute, but are limited to evidence, questions,

etc. (i) in “proceedings in any court or tribunal”, (ii) “by way of, or for the purpose of” one or more of

the three matters specified in sub-ss. 16(3)(a), (b) and (c). Further, sub-s. 16(3) must be read in the

context of other provisions in the Parliamentary Privileges Act, for example sub-ss. 10(1) and 16(5) and

(6); sub-s. 10(1) implicity accepts the need for proof of what was said in Parliament in order to

determine whether what was published outside Parliament was a “fair and accurate report of

proceedings at a meeting of a House ...”,[3] and sub-s. 16(5) excludes certain aspects of proceedings in

[3]

a court or tribunal from the operation of sub-s. 16(3) and the Bill of Rights.[4] Even so, read literally,

[4]             See also s. 15AB Acts Interpretation Act 1901 (Cth.), and compare sub-s. 16(6) in relation to

sub-s. 16(3) has an extremely wide operation, and, if valid, seems to me an insuperable barrier to the

plaintiff’s claim. To take what is perhaps the simplest example, sub-s. 16(3) plainly prohibits the plaintiff

from proving, stating, submitting or commenting that the statements made by the first defendant in
Parliament were false.

The first basis of invalidity of sub-s. 16(3) of the Parliamentary Privileges Act asserted by the plaintiff

was that, if it had the effect which I have found, it prevented or restricted his exercise in the course of

his action against the first defendant of his constitutional right to freedom of political discourse, which,

it was submitted, was recognised in Theophanous v. Herald & Weekly Times Ltd (1994) 182 C.L.R.

104 and Stephens v. Western Australian Newspapers Ltd (1994) 182 C.L.R. 211.[5] Leaving aside any

[5]             See also Nationwide News Pty Ltd v. Wills (1992) 177 C.L.R. 1; Australian Capital Television Pty Ltd v. The Commonwealth (1992) 177 C.L.R. 106; Cunliffe v. The Commonwealth (1994) 182 C.L.R. 272; Peterson v. Advertiser Newspapers Limited (1995) 64 S.A.S.R. 152; The Civil Aviation Authority v. Australian Broadcasting Corporation (1995) 39 N.S.W.L.R. 540 and Levy v. State of Victoria (1996) 11 Leg.Rep. 22; cf. Derbyshire County Council v. Times Newspapers Ltd [1993] A.C. 534. Freedom of political discourse is a convenient, if somewhat broad, description: see Cunliffe at p. 326.

question concerning whether freedom of political discourse is correctly regarded as an individual right,

its existence has been implied into the Commonwealth Constitution because it is seen as necessary to

the effective working of our representative democracy. Parliamentary privilege and immunity are other

aspects of the same fundamental public interest.[6] The reconciliation of those competing considerations

[6]             cp. Prebble v. Television New Zealand Ltd [1995] 1 A.C. 321, 336.

is committed to the Commonwealth Parliament by s. 49 of the Constitution. As will be seen, Richards

provides strong authority for giving the “very plain words of s. 49" (p. 165) their natural meaning. While

an implied constitutional freedom of political discourse had not been identified at the time when Richards

was decided, it would be contrary to the entire tenor of that decision to invalidate s. 16 of the

Parliamentary Privileges Act by reference to such a constitutional implication, or to require it to be read

down to accommodate such an implication. Indeed, unless the “powers, privileges and immunities” of the House of Commons at the establishment of the Commonwealth applied to the Senate and the House

of Representatives subject to an implied constitutional freedom of political discourse despite the “very

plain words of s. 49" of the Constitution, either invalidating or reading down s. 16 of the Parliamentary

Privileges Act by reference to such a constitutional implication would have the extraordinary

consequence of subjecting a law made under s. 49 to a limitation that did not apply to the “powers,

privileges and immunities” which s. 49 provided were to apply until such a law was made. That cannot

have been intended by those who framed the Constitution. Further, support for the view that s. 16 of

the Parliamentary Privileges Act does not offend an implied constitutional freedom of political discourse

is to be found in John Fairfax Publications Pty Ltd v. Doe (1995) 37 N.S.W.L.R. 81; see pp. 90 (per

Gleeson C.J.) and pp. 107ff (per Kirby P.).

Accordingly, in my opinion, the plaintiff’s first challenge to the validity of sub-s. 16(3) of the

Parliamentary Privileges Act fails. That conclusion is also supported by what follows concerning the

plaintiff’s next challenge to the validity of the sub-section.

The plaintiff submitted that sub-s. 16(3) of the Parliamentary Privileges Act is unconstitutional because

it impermissibly interferes with the exercise of judicial power.[7] The best-known case in which such an

[7]             This issue falls for consideration by reference to the legislative power of the Commonwealth Parliament, not the legislative power of a State Parliament with respect to the courts of that State: see S. v. R. (1995) 12 W.A.R. 392, 401 and cases cited; the cases cited in City of Collingwood v. Victoria [No. 2] [1994] 1 V.R. 652 at p. 660, and Kable v. D.P.P.(N.S.W.) (1996) 189 C.L.R. 51.

argument has succeeded is Liyanage v. R. [1967] 1 A.C. 259 (see especially pp. 290-292), but there

is nothing in that decision which is of present assistance. As Mason J., with whom Gibbs J. agreed, said

in R. v. Humby, Ex parte Rooney (1973) 129 C.L.R. 231 at p. 250, what is impermissible “is not susceptible of precise and comprehensive definition”, and “[i]n the context of the Commonwealth

Constitution, it must signify some infringement of the provisions which Ch. III makes respecting the

exercise of the federal judicial power”: see also pp. 243-244, 249-250.

In Australian Building Construction Employees’ and Builders Labourers’ Federation v. The

Commonwealth (1986) 161 C.L.R. 88, the High Court said at p. 96 that the doctrine in question did

not “prevent Parliament from exercising its legislative power so as to abrogate or alter rights and

liabilities which would otherwise be subject to a judicial determination”, and continued:

“It is well established that Parliament may legislate so as to affect and alter rights in issue in pending litigation without interfering with the exercise of judicial power in a way that is inconsistent with the Constitution.

‘Chapter III contains no prohibition, express or implied, that rights in issue in legal proceedings shall not be the subject of legislative declaration or action.’

(Reg. v. Humby; Ex parte Rooney [(1973) 129 C.L.R. 231, at p. 250].) So, in Nelungaloo Pty Ltd v. The Commonwealth [(1948) 75 C.L.R. 495, esp. at pp. 503-504, 579-580], the validity of the Wheat Industry Stabilization Act (No. 2) 1946 (Cth) was upheld, notwithstanding that the Act validated an order for the acquisition of wheat, the validity of which was in issue in the proceedings.

It is otherwise when the legislation in question interferes with the judicial process itself, rather than with the substantive rights which are at issue in the proceedings. ...”

The same distinction between legislation affecting substantive rights in issue in litigation and legislative

interference with the judicial process was drawn in Polyukhovich v. The Commonwealth (1991) 172

C.L.R. 501 at p. 534 per Mason C.J. and at p. 608 per Deane J. In Mabo v. Queensland (1988) 166

C.L.R. 186, Wilson J., with whom Mason C.J. (at p. 295) and Dawson J. (at p. 241) agreed, said at

p. 202:

“... it is wrong to describe the Queensland Act as interfering with the judicial process. One example of that kind of statute was the subject of the decision of the Judicial Committee of the Privy Council in Liyanage v. The Queen [[1967] 1 A.C. 259]. The most that can be said of the Queensland Act is that it extinguishes the rights of persons who happen to be litigants seeking a vindication of those rights. It is not directed to the judicial process itself. If the Act is otherwise valid and effective, then the legal action will take its course in the context of the applicable law: see Australian Building Construction Employees’ and Builders Labourers’ Federation v. The Commonwealth [(1986) 161 C.L.R. 88; Builders Labourers’ Federation v. Minister for Industrial Relation [(1986) 7 N.S.W.L.R. 372].”

See also per Brennan, Toohey and Gaudron JJ. at pp. 211-212.

See also Collingwood at pp. 664-668.

In Polyukhovich, Gaudron J. said at pp. 703-704:

“An essential feature of judicial power is that it be exercised in accordance with the judicial process. I attempted to identify the features of that process in Harris v. Caladine[8] [(1991) 172 C.L.R. 84, at pp. 150-152], and in Re Nolan; Ex parte Young [(1991) 172 C.L.R. 460]. To adopt the words of Kitto J. in Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [(1970) 123 C.L.R. 361, at p. 374], the essential features of that process include the determination of legal rights, obligations or consequences by the ascertainment of the facts as they are and as they bear on the matter for determination, and the identification of the applicable law, followed by an application of that law to those facts. Those features may be more or less obvious, depending on the issues involved and the nature of the law to be applied. At one extreme, the law to be applied may require the assigning of future rights and obligations attaching to or in consequence of a legal relationship in the exercise of a judicial discretion in which no particular matter is decisive. At the other extreme, the law may assign distinct legal consequences by reason that a person has committed a particular proscribed act. Criminal laws are laws of the latter kind. But whatever the issues and whatever the nature of the law being applied, the power vested in a court can be exercised only on the basis of the discovered facts and by application of the law which determines the legal consequences attaching to those facts.

[8]             At p. 150 in Harris v. Caladine (1991) 172 C.L.R. 84, Gaudron J. said that the exercise of judicial power “... (subject to limited exceptions) proceeds by way of open and public inquiry, which involves the application of the rules of natural justice ...”.

A power to be exercised by the application of law to facts invented by Parliament or invented according to some statutory formula or prescription would not be a power to be exercised in accordance with the judicial process and would not be judicial power. That is not to say that statutory fictions may not be employed in the course of and for the purpose of formulating the legal rights, obligations or consequences attaching to a relationship or to conduct. And, of course, they may be applied by the courts when those rights, obligations or consequences are in issue. However, the relationship or the conduct which is the basis of those rights, obligations or consequences must be real and not fictitious. A law assigning legal consequences on the basis of fictitious or invented facts may sometimes, on that account, be characterized as other than a law on a subject matter within legislative power: see Actors and Announcers Equity Association v. Fontana Films Pty Ltd [(1982) 150 C.L.R. 169]. Quite apart from that consideration, a law conferring power on a court to determine legal consequences on the basis that a person is who he is not or on the basis that he did what he did not would be invalid for offending Ch. III. It would be invalid because the power in question would involve a travesty of the judicial process and would, thus, be a power which, by virtue of s. 71, could not validly be conferred on a court.”

Since that time, her Honour has made further reference to the same matter.

In Leeth v. The Commonwealth (1992) 174 C.L.R. 455, which is further referred to below, her Honour

said at pp. 501-502:

“It has often been said that judicial power has not proved susceptible of exhaustive or exclusive definition: R v Davison (1954) 90 CLR 353, at 366; Re Nolan; Ex parte Young (1991) 172 CLR 460, at 497; 100 ALR 645; Polyukhovich v The Commonwealth (1991) 172 CLR 501, at 532; 101 ALR 545. A definition of judicial power must take account of its varying character: in some cases, the content of the power will stamp it as one which can only be exercised by courts (R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR, at 271-2, 289); in others, the content will indicate that it is a power with a ‘double aspect’ (Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144, at 151; R v Davison at 368-9; Harris v Caladine (1991) 172 CLR 84 at 93, 147-8), in the sense that Parliament may choose whether to confer it on a court in accordance with Ch III of the Constitution or on some other body. Another feature which renders 'judicial power' difficult to define is that it cannot be defined only in terms of its content. It is necessary to have regard to the manner in and the processes by which the power is or is to be exercised: Harris v Caladine at CLR 150.

It is an essential feature of judicial power that it should be exercised in accordance with the judicial process: Harris v Caladine at CLR 150; Re Nolan; Ex parte Young at CLR 497; Polyukhovich v. Commonwealth at CLR 703; see also R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374. A legislative direction which would require a power vested in a court to be exercised other than in accordance with that process is necessarily invalid. Its effect would be to take the power outside the concept of judicial power. And a conferral of a power of that kind would infringe the prohibition deriving from s. 71 which limits the powers which may be conferred on a court to those which are judicial or ancillary or incidental to judicial power.”

In Kable, a New South Wales statute was, by majority, held invalid because it purposed to require the

Supreme Court of New South Wales to exercise a power which was incompatible with its functioning

as a court invested with federal jurisdiction. Gaudron J., who was one of the majority, said:

“The proceedings which the Act contemplates are not proceedings otherwise known to the law. And except to the extent that the Act attempts to dress them up as legal proceedings (for example, by referring to the applicant as ‘the defendant’, by specifying that the proceedings are civil proceedings and by suggesting that the rules of evidence apply ...), they do not in any way partake of the nature of legal proceedings. They do not involve the resolution of a dispute between contesting parties as to their respective legal rights and obligations. And as already indicated, the applicant is not to be put on trial for any offence against the criminal law. Instead, the proceedings are directed to the making of a guess - perhaps an educated guess, but a guess nonetheless - whether, on the balance of probabilities, the appellant will commit an offence of the kind specified in the definition of ‘serious act of violence’. And, at least in some circumstances ..., the Act directs that that guess be made having regard to material which would not be admissible as evidence in legal proceedings.

It is well settled that some functions take their character from the way in which they are to be exercised and, thus, from the body on which they are conferred [See, for example, R v Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617 at 628; Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 at 159-160; Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (1987) 163 CLR 656 at 665]. Accordingly, some functions which are not essentially judicial in character are, nonetheless, properly characterised as judicial if conferred on a court [See Harris v Caladine (1991) 172 CLR 84 at 147-148]. Chapter III permits the conferral of such functions on courts.

And, of course, there is nothing to prevent the Parliaments of the States from conferring powers on their courts which are wholly non-judicial, so long as they are not repugnant to or inconsistent with the exercise by those courts of the judicial power of the Commonwealth.

The power purportedly conferred by s 5(1) of the Act requires the making of an order, if the conditions specified in s 5(1) are satisfied, depriving an individual of his liberty, not because he has breached any law, whether civil or criminal, but because an opinion is formed, on the basis of material which does not necessarily constitute evidence admissible in legal proceedings, that he ‘is more likely than not’ [Section 5(1)(a)] to breach a law by committing a serious act of violence as defined in s 4 of the Act. That is the antithesis of the judicial process, one of the central purposes of which is, as I said in Re Nolan; Ex parte Young [(1991) 172 CLR 460 at 497], to protect ‘the individual from arbitrary punishment and the arbitrary abrogation of rights by ensuring that punishment is not inflicted and rights are not interfered with other than in consequence of the fair and impartial application of the relevant law to facts which have been properly ascertained’. It is not a power that is properly characterised as a judicial function, notwithstanding that it is purportedly conferred on a court and its exercise is conditioned in terms usually associated with the judicial process.

Moreover, when regard is had to the precise nature of the function purportedly conferred by s 5(1), the matters to be taken into account in its exercise and its contrariety to what is ordinarily involved in the judicial process, the effect of s 5(1) is, in my view, to compromise the integrity of the Supreme Court of New South Wales and, because that court is not simply a State court but a court which also exists to exercise the judicial power of the Commonwealth, it also has the effect of compromising the integrity of the judicial system brought into existence by Ch III of the Constitution.”

...

Mention should be made of one other aspect of the function purportedly conferred on the Supreme Court by s 5(1) of the Act. Public confidence in the courts requires that they act consistently and that their proceedings be conducted according to rules of general application. That is an essential feature of the judicial process. It is that feature which serves to distinguish between palm tree justice and equal justice. Public confidence cannot be maintained in a judicial system which is not predicated on equal justice [See Leeth v The Commonwealth (1992) 174 CLR 455 at 502].”

It is also instructive to note the following passage from the judgment of Street C.J. in Building

Construction Employees & Builders’ Labourers Federation of New South Wales v. Minister for
Industrial Relations (1986) 7 N.S.W.L.R. 372 at pp. 375-376:

“The distinction between interference with the judicial process itself rather than with the substantive rights which are at issue is no idle pedantry. Fundamental to the rule of law and the administration of justice in our society is the convention that the judiciary is the arm of government charged with the responsibility of interpreting and applying the law as between litigants in individual cases. The built-in protections of natural justice, absence of bias, appellate control, and the other concomitants that are the ordinary daily province of the courts, are fundamental safeguards of the democratic rights of individuals. For Parliament, uncontrolled as it is by any of the safeguards that are enshrined in the concept of due process of law, to trespass into this field of judging between parties by interfering with the judicial process is an affront to a society that prides itself on the quality of its justice. ...”

While the present proceeding is in a State court, it is a State court invested with federal jurisdiction

pursuant to sub-s. 77(iii) of the Commonwealth Constitution; further, sub-s. 16(3) is expressed in

general terms, and is clearly intended to apply also to courts constituted by or under Ch. III of that

Constitution. It is therefore necessary to consider whether sub-s. 16(3) conflicts with Ch. III. It is also

appropriate to consider whether, in its application to State courts, sub-s. 16(3) otherwise impermissibly

exceeds the legislative power of the Commonwealth Parliament in relation to State courts. The first of

these issues concerns the separation of powers provided for in Chs. I, II and III of the Commonwealth

Constitution, and the second concerns the distribution of powers between the Commonwealth and

States which is effected by the Constitution; the federal compact is predicated upon the “continued

existence as independent entities” of “a central government and a number of State governments

separately organised” (Melbourne Corporation v. The Commonwealth (1947) 74 C.L.R. 31, 82), with

power distributed among them.

The only express power in the Commonwealth Constitution for the Commonwealth Parliament to legislate in relation to State courts is sub-s 77(iii)[9] - which is in Ch. III - which permits the

[9] See also ss. 51(xxxix) and 71, and, for example, Peacock v. Newtown, Marrickville & General Cooperative Building Society (1943) 67 C.L.R. 25.

Commonwealth Parliament to invest State courts with federal jurisdiction. Further, there is a general

implied prohibition upon Commonwealth legislation which is inconsistent with “the continued existence

of the States as independent entities and their capacity to function as such”, a matter “which directs

attention to aspects of a State’s functions which are critical to its capacity to function as a government”:

Re Australian Education Union, ex parte Victoria (1995) 184 C.L.R. 188, 231-232; Victoria v. The

Commonwealth (1996) 187 C.L.R. at pp. 416, 498. State courts are, of course, a fundamental organ

of State government, and it is at least consistent with the general constitutional prohibition to which

reference has been made that the Commonwealth Parliament’s power to legislate to confer federal

jurisdiction on State courts is subject to limitations;[10] for example, jurisdiction can be vested only with

[10]            cf. Russell v. Russell (1976) 134 C.L.R. 495, 519-520; The Commonwealth v. Hospital Contribution Fund (1982) 150 C.L.R. 49; Harris at p. 92.

respect to matters enumerated in ss. 75 and 76 of the Constitution (R. v. Murphy (1985) 158 C.L.R.

596, 613), and only judicial functions can be conferred (Queen Victoria Memorial Hospital v. Thornton

(1953) 87 C.L.R. 144; Murphy at pp. 613-614; Kable per Gummow J.). Further, although it may

prescribe the number of judges to exercise federal jurisdiction (Constitution, s. 79),[11] the

[11]            The extent of this power is not finally settled: see Harris at p. 94.

Commonwealth can only vest federal jurisdiction in a State court as it finds it, in the sense that it cannot

affect its structure or constitution or the organisation through which its powers and jurisdiction are

exercised: Federated Sawmill, Timberyard & General Woodworkers’ Employees’ Association

(Adelaide Branch) v. Alexander (1912) 15 C.L.R. 308, 313; Le Mesurier v. Connor (1929) 42 C.L.R. 481 at pp. 495-497, 498; Adams v. Chas. S. Watson Pty Ltd (1938) 60 C.L.R. 545, 554-555;

Peacock at p. 37; Kotsis v. Kotsis (1970) 122 C.L.R. 69,109-110; Russell at pp. 516-517, 530, 535,

554; Hospital Contribution Fund at p. 61; Brown v. The Queen (1986) 160 C.L.R. 171, at pp. 198-

199, 206-207, 218-219; Harris 92, 107, 117, 137-138, 145-146, 158; Leeth at pp. 455, 468-469;

Kable. However, the Commonwealth Parliament may determine the nature and limits of the federal

jurisdiction to be exercised (Adams) and the practice and procedure to be observed in exercising

federal jurisdiction (Russell at pp. 518-519, 535-536, 544-545; Brown at pp. 198-199 and cases

cited; Kable).[12]

[12]            To the extent that Commonwealth legislation does not make other provision, the established procedures of a State court vested with federal jurisdiction apply to the exercise of that jurisdiction (Harris ; Director of Public Prosecutions (Cth.) v. Bayly (1994) 63 S.A.S.R. 97), provided of course

Obviously, laws based on sub-s. 77(iii) of the Constitution which are valid do not impermissibly interfere

with either the judicial process or the functioning of State courts. Likewise, in my opinion, other laws

which do not impermissibly interfere with the judicial process (contrary to the implication related to Ch.

III) do not, in their application to State courts, including State courts invested with federal jurisdiction,

impermissibly interfere with the functioning of those courts as organs of State government.

It is not practical to attempt an exhaustive discussion of the cases which might bear on these issues, and

I will mention only a number of those which might be thought to have present relevance.
Thus, for example, in Palling v. Corfield (1970) 123 C.L.R. 52, it was held that a law which permitted

a prosecutor an election as to how to proceed and required that, in one set of circumstances, the court

impose a specific punishment was valid. Walsh J. said at p. 68:

“It could not be disputed, and was not disputed, that the Parliament may make a valid law by which no discretion is given to the court as to the punishment of a person convicted of an offence. The Parliament may itself specify what sentence is to be imposed. When an Act requires a court, upon an offence being proved, to pass a mandatory sentence this does not involve any unconstitutional intrusion by the legislature into the field of judicial power. The relevant exercise of judicial power, when there is a prosecution for an offence against a law of the Commonwealth, consists of the application of the law by the court, according to the terms of the law. If the Act provides for a mandatory sentence, the only power of sentencing which the court has in that case is the power to impose that sentence.”

In Actors and Announcers Equity Association of Australia v. Fontana Films Pty Ltd (1982) 150 C.L.R.

169, a majority of the High Court found that sub-s. 45D(5) and, to the extent to which sub-s. (6) had

an operation consequential upon sub-s. (5), sub-s. (6), were invalid. The general majority view appears

from the following passage of Mason J. at p. 211:

“In substance s. 45D(5) is a law which makes a trade union responsible for a boycott affecting a corporation when that boycott is imposed by members or officers of the trade union, a responsibility which the trade union can only avoid if it demonstrates it has taken the action mentioned in the sub-section. As such it is a law about trade unions; to me it has a very remote connexion with corporations, a connexion so remote that the provision cannot be characterized as a law with respect to corporations of the relevant class. In my opinion it is beyond power. The result is that sub-s. (6), at least to the extent to which it has an operation consequential upon sub-s. (5) by reason of the words ‘or is deemed by sub-section (5) to engage’, is also beyond power.”

that they are consistent with Ch. III: cp. Brown.

However, Murphy J.[13] approached the issue differently. At pp. 213-215, his Honour said:

[13]            See also MacCormick v. Federal Commissioner of Taxation (1984) 158 C.L.R. 622, 645-646.

“Deeming provisions
...

In Seamen’s Union of Australia v. Utah Development Co. [(1979) 144 C.L.R. 120, at pp. 156-157] I indicated doubt of the constitutional validity of these provisions, although the prosecutor Seamen’s Union of Australia did not challenge them. In Reg. v. Bowen; Ex parte Amalgamated Metal Workers’ and Shipwrights’ Union [(1980) 144 C.L.R. 462] in relation to similar provisions of the Conciliation and Arbitration Act (although the challenge to them was not pursued) it seemed to me that these were unconstitutional, although it was not necessary to express any final conclusion.

Presumptions are a useful and common device for facilitating proof. Judges have recognized, that is adopted, a myriad of presumptions. These make the legal system operable. Statutory presumptions are a way of correcting the recent tendency to abandon the common law method of adapting the law (including evidence and proof) to the changing society. The justification for all presumptions is human experience of the association between the known and the presumed facts or circumstances.

It is within the general incidental power (s. 51(xxxix)) or the specific powers in ss. 51 or 52 of the Constitution to provide that one fact or circumstance shall be presumed from the existence of another, provided there is a rational basis for the presumption. Where there is no rational basis for the presumption, then in my opinion Parliament has no power to require a court to act upon the presumption. To do so would be to undermine the judicial power. Clearer still, a law that proof of one fact is deemed to be proof of another fact, so that the party against whom the second fact is alleged is prevented from attempting to disprove it, undermines the judicial power. This does not apply where the second fact is merely another description of, or an inevitable consequence of, the first fact. Sometimes deemed may only mean presumed. Also ‘deeming’ may be used merely as a shorthand method of legislating, so that when the provisions as a whole are considered the vice is only in the form, not the substance. But here the deeming provision is s. 45D(5) and the reference to it in s. 45D(6) create a statutory fiction (see Griffith C.J. in Muller v. Dalgety & Co. Ltd. [(1909) 9 C.L.R. 693, at p. 694), so that the conclusion is to be made even if it is contrary to the fact. ... Such a law is not authorized by the corporations’ power or the general incidental power in s. 51(xxxix). The legislative powers in s. 51 are subject to the Constitution, including Ch. III, The Judicature. It is not consistent with the exercise of judicial power that the courts be required to make findings contrary to fact or to adjudge persons guilty or civilly liable upon proof of facts from which a rational conclusion of guilt or liability does not follow but on the basis of a legislative conclusion which is unexaminable judicially. A similar attempt to penalize persons on the basis of legislative or executive opinions unexaminable in the courts was rejected in Australian Communist Party v. The Commonwealth [(1951) 83 C.L.R. 1].

Unlike a presumption, the purpose and effect of a deeming provision is to prevent any attempt, by either party, to prove the truth. Legislative provision for suppression of the truth in judicial proceedings is inconsistent with the exercise of judicial power and unconstitutional. I leave aside the area, not pertinent here, where the law is directed to maintaining the integrity of legislative or executive processes from the judicial process.”

In 1982 and 1983, there were a series of cases in the High Court relating to the activities of Royal

Commissions and Commissions of Inquiry,[14] and the matters discussed in the judgments included the

[14]            See Victoria v. The Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 C.L.R. 25, 179; Hammond v. The Commonwealth (1982) 152 C.L.R. 188; R. v. Winneke, ex p Gallagher (1982) 152 C.L.R. 211; Sorby v. The Commonwealth (1983) 152 C.L.R. 281.

capacity or otherwise of the Commonwealth Parliament or Executive to authorise conduct which would

otherwise constitute a contempt of court by interference with the due administration of justice.[15] Neither

[15]            See Hammond, e.g. by Deane J. at p. 206; Sorby e.g. per Mason C.J., Wilson and Dawson JJ. at pp. 306ff.

that question nor an analogous question concerning the validity of a statutory power of executive

interrogation which is expressed in sufficiently wide terms to make it potentially available in relation to

an issue which is the subject of a curial proceeding[16] need be pursued on this occasion, but I have found

[16]            See Trade Practices Commission v. Pioneer Concrete (Vic.) Pty Ltd (1981) 55 F.L.R. 77; affd. (1982) 152 C.L.R. 460.

nothing in those authorities which assists the present plaintiff.
In Sorby, Gibbs C.J. expressed the opinion that legislation which removed the privilege against self-

incrimination would not impermissibly interfere with federal judicial power. At pp. 298-299, his Honour

said:

“... the privilege against self-incrimination is not a necessary part of a trial by jury.
Counsel for the plaintiffs sought to rely on the dissenting judgment of Dixon and Evatt
JJ. in R. v. Federal Court of Bankruptcy; Ex parte Lowenstein [(1938) 59 C.L.R.
556, at pp. 580-584] , but that judgment (which in any case expresses a view of s. 80
which has not found general acceptance: Li Chia Hsing v. Rankin [(1978) 141 C.L.R.
182] does not suggest the contrary. The Parliament can, in relation to a trial by jury,
alter the rules of evidence, or the rules relating to the onus of proof: see Milicevic v.
Campbell [(1975) 132 C.L.R. 307, pp. 316-317, 318-319] . Indeed the Parliament
has, by s. 79 of the Judiciary Act, rendered applicable to trial by jury in courts
exercising federal jurisdiction in the States the laws of those States under which a
person charged who gives evidence in a criminal proceeding is not entitled to refuse to
answer a question on the ground that to do so would tend to prove that he committed
the crime with which he stands charged, notwithstanding that, to the extent to which
they apply, such laws take away the privilege against self-incrimination. There is no
reason to doubt the validity of the application of such provisions to courts exercising

federal judicial power. ...”

In Leeth, a majority of the High Court held that Commonwealth legislation which permitted different

minimum terms of imprisonment to be imposed for breaches of Commonwealth law in different States,

according to differences in the laws of the States with respect to the periods of imprisonment required

to be served before a prisoner became eligible for release on parole, was valid.

At pp. 468-471, Mason C.J., Dawson and McHugh JJ. said:

“The Constitution plainly envisages the continuation of separate State legal systems and, by empowering Parliament under s. 77(iii) to invest any court of a State with federal jurisdiction, provides a means whereby the Commonwealth may participate in those systems. In investing State courts with federal jurisdiction, the Commonwealth must take the courts as it finds them, notwithstanding the differences that exist from State to State [Le Mesurier v. Connor (1929) 42 C.L.R. 481; Kotsis v. Kotsis (1970) 122

C.L.R. 69, at pp. 88, 109, The Commonwealth v. Hospital Contribution Fund (1982) 150 C.L.R. 49, at p. 64; Harris v. Caladine (1991) 172 C.L.R. 84, at pp. 92, 109, 117, 138, 158].

The Commonwealth Parliament has no specific power to legislate for the creation of federal offences and the treatment of federal offenders. The power which it has in this regard is to be found in its power to legislate with respect to matters incidental to its enumerated powers. Thus the primary source of the power to create those offences of which the plaintiff was convicted is to be found in s. 51(i) of the Constitution: the power to make laws with respect to trade and commerce with other countries.

It is at least theoretically possible that, in legislating for the treatment of offenders in a particular manner, the Parliament may discriminate against particular offenders or classes of offenders in such a way that the legislation travels beyond matters which are incidental to the main power. The legislation might for that reason be invalid, but that would not be because it offended any implied prohibition against the exercise of legislative power in a discriminatory manner. In the present case, the non-parole period to be served by federal offenders was a matter which was clearly incidental to the main legislative power and the contrary was not suggested. It was for Parliament to determine whether the minimum term to be served was to be fixed by reference to State laws or by some other means.

Under s. 71 of the Constitution the judicial power of the Commonwealth is vested in the High Court, in such other federal courts as the Parliament creates and in such other courts as it invests with federal jurisdiction. In Reg. v. Kirby; Ex parte Boilermakers’ Society of Australia [(1956) 94 C.L.R. 254] it was held that Ch. III of the Constitution, of which s. 71 is the first section, imposes a separation of judicial power from the other powers of government. The judicial power of the Commonwealth is to be exercised by courts constituted or invested with jurisdiction under Ch. III and not otherwise. Nor is it possible to invest a court under Ch. III with non-judicial powers that are not ancillary, but are directed to some non-judicial purpose. But to speak of judicial power in this context is to speak of the function of a court rather than the law which a court is to apply in the exercise of its function. Of course, legislation may amount to a usurpation of judicial power, particularly in a criminal case, if it prejudges an issue with respect to a particular individual and requires a court to exercise its function accordingly [See Liyanage v. The Queen [1967] 1 A.C. 259]. It is upon this principle that bills of attainder may offend against the separation of judicial power [See Polyukhovich v. The Commonwealth (1991) 172 C.L.R. 501]. But a law of general application which seeks in some respect to govern the exercise of a jurisdiction which it confers does not trespass upon the judicial function. It may well be that any attempt on the part of the legislature to cause a court to act in a manner contrary to natural justice would impose a non-judicial requirement inconsistent with the exercise of judicial power, but the rules of natural justice are essentially functional or procedural and, as the Privy Council observed in the Boilermakers’ Case [(Attorney-General (Cth) v. The Queen (1957) 95 C.L.R. 529, at p. 542; [1957] A.C. 288, at p. 317], a fundamental principle which lies behind the concept of natural justice is not remote from the principle which inspires the theory of separation of powers.

In this case, however, the legislation in question did not require a court invested with federal jurisdiction to perform a function which could be described as non-judicial. The sentencing of offenders, including in modern times the fixing of a minimum term of imprisonment, is as clear an example of the exercise of judicial power as is possible.

It is obviously desirable that, in the sentencing of offenders, like offenders should be treated in a like manner [See Lowe v. The Queen (1984) 154 C.L.R. 606, at pp. 610- 611, per Mason J.]. But such a principle cannot be expressed in absolute terms. Its application requires the determination of the categories within which equal treatment is to be measured. Its application in Australia is necessarily upon a State by State basis, for it has long been recognized that sentencing practices may not be uniform from State to State but may be affected by local circumstances [See Veen v. The Queen (1979) 143 C.L.R. 458, at p. 497, per Aickin J.; Neal v. The Queen (1982) 149 C.L.R. 305, at p. 309, per Gibbs C.J.; p. 323, per Brennan J.]. Of course, with many offences, particularly federal offences, local circumstances may, under State sentencing practices, have no bearing upon the appropriate sentence and it may be proper to have regard to sentences imposed elsewhere in Australia.

Even if it is accepted for the purpose of argument that any fundamental departure by the legislature from the principle that like offenders should be treated in a like manner may involve the imposition upon a court of a non-judicial function, it is in our view apparent that to require a court, in the case of a federal offender, to have regard to the sentencing practices of the State in which he is convicted involves no such departure. To require a court to do so does not convert the sentencing process into some process of a non-judicial kind but merely reflects the manner in which the Commonwealth, within the means made available to it by the Constitution, has chosen in the administration of its criminal law to operate through the existing State systems.

To say as much is, of course, to take the matter further than we need do. There is no requirement that the actual sentence of a federal offender be fixed having regard to local circumstances. The sentencing judge may, as in this case, have regard to the sentences imposed in other States in order to achieve as far as possible a measure of consistency. The restrictions of which the plaintiff complains relate merely to the fixing of the minimum term which, whilst it is undoubtedly part of the punishment imposed, is also closely linked to the parole system to be applied to the offender and has a bearing upon the administration of the prison in which he must serve his sentence. We can see no departure from the judicial function if a court within our federal system is required, in fixing the minimum term of imprisonment of a federal offender, to have regard to those matters to which it would have regard if the law of the State in which the offender was convicted were applicable.”

Brennan J., the other member of the majority, said at pp. 478-480:

“Section 4 of the Commonwealth Prisoners Act does not discriminate among offenders against laws of the Commonwealth in respect of the maximum penalties to which they are exposed; it discriminates among Commonwealth prisoners in respect of the determination of the condition limiting the executive power to release them on parole. So long as the system, contemplated by s. 120 of the Constitution, of incarcerating Commonwealth prisoners in the same prisons as State prisoners continues, it will be necessary to maintain the same or substantially the same regime for fixing the minimum terms of Commonwealth prisoners and State prisoners serving their sentences in the same prison. Although s. 4 of the Commonwealth Prisoners Act discriminates among Commonwealth prisoners serving sentences for the same kind of offence, the practical ground of distinction is their incarceration in prisons shared with State and Territory prisoners. That is not only a rational ground of discrimination; it is a necessary ground.

...

The legislative power to enact ss. 4 and 5 of the Commonwealth Prisoners Act is an aspect of a power to create offences and to prescribe penalties for their commission and the means by which those penalties should be borne and discharged. That legislative power is to be found in the respective heads of power under which offences against the laws of the Commonwealth can be created. Sections 4 and 5 of the Commonwealth Prisoners Act are appropriate means by which the regime governing custodial sentences can be implemented. Section 4 exhibits no incompatibility with the vesting of judicial power to be exercised in passing a sentence which fixes a minimum term. Once it is appreciated that ss. 4 and 5 relate to the regime for releasing on parole Commonwealth prisoners who will serve their sentences in the prisons of the State and Territory in which the Court is sitting (except in those cases where a transfer order may be made under one or other of the special Acts), the differences in the State and Territory laws to be applied to Commonwealth prisoners are seen as no more than the inevitable consequence of the constitutionally sanctioned expedient of incarcerating in the same prisons offenders against laws made under federal powers and offenders against State laws. Discriminatory laws made under a constitutional head of power, where the discrimination is supported by the power, must be administered by the courts in which the judicial power of the Commonwealth is vested. The administration of such laws is consistent with a proper exercise of the judicial power;

indeed, a court in which the relevant jurisdiction is vested is bound to exercise its

jurisdiction in accordance with such laws.”

Deane and Toohey JJ., who dissented, said in a joint judgment at pp. 485-493:

“In The Commonwealth v. Kreglinger and Fernau Ltd. and Bardsley [(1926)37 C.L.R. 393, at pp. 411-412], Isaacs J. pointed out ‘that it is the duty of this Court, as the chief judicial organ of the Commonwealth, to take judicial notice, in interpreting the Australian Constitution, of every fundamental constitutional doctrine existing and fully recognized at the time the Constitution was passed’. The doctrine of legal equality is in the forefront of those doctrines. It has two distinct but related aspects. The first is the subjection of all persons to the law: ‘every man, whatever be his rank or condition, is subject to the ordinary law ... and amenable to the jurisdiction of the ordinary tribunals’ [Dicey, Introduction to the Study of the Law of the Constitution, 10th ed. (1959), p. 193]. The second involves the underlying or inherent theoretical equality of all persons under the law and before the courts [See, e.g., Holdsworth, A History of English Law, (1938), vol. 10, p. 649]. The common law may discriminate between individuals by reference to relevant differences and distinctions, such as infancy or incapacity, or by reason of conduct which it proscribes, punishes or penalizes. It may have failed adequately to acknowledge or address the fact that, in some circumstances, theoretical equality under the law sustains rather than alleviates the practical reality of social and economic inequality. Nonetheless, and putting to one side the position of the Crown and some past anomalies, notably, discriminatory treatment of women, the essential or underlying theoretical equality of all persons under the law and before the courts is and has been a fundamental and generally beneficial doctrine of the common law and a basic prescript of the administration of justice under our system of government. Conformably with its ordinary approach to fundamental principles, the Constitution does not spell out that general doctrine of legal equality in express words. The question arises whether it adopts it as a matter of necessary implication. In our view, several considerations combine to dictate an affirmative answer to that question.

For one thing, there is the conceptual basis of the Constitution. As the preamble and s. 3 of the Commonwealth of Australia Constitution Act 1900 (Imp.) [63 and 64 Vict. c. 12] make plain, that conceptual basis was the free agreement of ‘the people’ - all the people - of the federating Colonies to unite in the Commonwealth under the Constitution. Implicit in that free agreement was the notion of the inherent equality of the people as the parties to the compact. Indeed, covering cl. 5 (s.5) expressly enacted the first aspect of the common law doctrine of legal equality, namely, that ‘(t)his Act’ - which included the actual terms of the Constitution (s.9) - ‘and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people ... of every part of the Commonwealth’.

For another thing, the doctrine of legal equality is, to a significant extent, implicit in the Constitution's separation of judicial power from legislative and executive powers and the vesting of judicial power in designated ‘courts’. ... in Ch. III's exclusive vesting of the judicial power of the Commonwealth in the ‘courts’ which it designates, there is implicit a requirement that those ‘courts’ exhibit the essential attributes of a court and observe, in the exercise of that judicial power, the essential requirements of the curial process, including the obligation to act judicially. At the heart of that obligation is the duty of a court to extend to the parties before it equal justice, that is to say, to treat them fairly and impartially as equals before the law and to refrain from discrimination on irrelevant or irrational grounds.

The doctrine of legal equality is not infringed by a law which discriminates between people on grounds which are reasonably capable of being seen as providing a rational and relevant basis for the discriminatory treatment. ... Provided that the differentiation of and between those to whom they are addressed does not involve discrimination of a kind that infringes their inherent equality as people of the Commonwealth, such laws will not infringe the doctrine of equality under the law and before the courts.

Even where a law does infringe the doctrine of legal equality, the nature of the particular grant of legislative power may be such as to rebut the assumption that such discrimination was unauthorized by the relevant provision of the Constitution [See, e.g., Melbourne Corporation v. The Commonwealth (1947) 74 C.L.R. 31, at p. 83; Queensland Electricity Commission v. The Commonwealth (1985) 159 C.L.R., at pp. 208, 219, 233, 250-251, 260]. ...

Quite apart from the nature of a particular grant of legislative power, the Constitution's doctrine of the legal equality of the people of the Commonwealth must be adjusted to the extent necessary to accommodate discriminatory treatment which other provisions of the Constitution clearly contemplate. Thus, the Constitution, in providing for the exercise of the judicial power of the Commonwealth by both State and federal courts, implicitly contemplates the application, in the course of that exercise, of the different procedural laws, rules and practices of the courts concerned. Those different procedural laws, rules and practices may, in some circumstances, be of critical importance to the outcome of litigation, including criminal proceedings. Nonetheless, the doctrine of the legal equality of the people of the Commonwealth must be adjusted to accommodate them at least to the extent that the application of the procedural laws, rules and practices of a particular court is a necessary concomitant of the vesting by the Parliament of part of the judicial power of the Commonwealth in that court. Again, s. 120 of the Constitution requires each State to make provision for the detention in its prisons of persons accused or convicted of offences against the laws of the Commonwealth, and for the punishment of persons convicted of such offences. The conditions of imprisonment may vary from State to State and, to that extent, a person imprisoned in one State for an offence against a law of the Commonwealth may be more harshly treated than a person imprisoned for the same offence in another State. If the Constitution's doctrine of legal equality would otherwise preclude such different treatment, it must be modified to permit it at least to the extent that it is a necessary concomitant of the use of State prisons to punish Commonwealth offenders. Neither of those adjustments of the doctrine of legal equality suffices, however, to save s.4(1) of the Act from invalidity. The sub-section was not a procedural section. It was not a necessary incident of the vesting of part of the judicial power of the Commonwealth in State and Territory courts. Nor were its provisions a necessary concomitant of the use of State prisons for the punishment of Commonwealth offenders.”

Gaudron J., who also dissented, said at pp. 498-503:

“The Constitution, in Ch. III, envisages and permits of the exercise of federal jurisdiction by State courts - the ‘autochthonous expedient’ as it has been called [Reg. v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 C.L.R. 254, at p. 268]. And it is established constitutional doctrine that, in investing State courts with federal jurisdiction, the Commonwealth must take those courts as it finds them [Le Mesurier v. Connor (1929) 42 C.L.R. 481, at pp. 496, 522-523; Kotsis v. Kotsis (1970) 122 C.L.R. 69, at p. 109; The Commonwealth v. Hospital Contribution Fund (1982) 150 C.L.R. 49, at pp. 64, 66; Harris v. Caladine (1991) 172 C.L.R. 84, at pp. 138-143]. However, the fact that federal jurisdiction is invested in and exercised by State courts constituted under State law does not alter the fact that federal jurisdiction is separate and entire. It is an Australian jurisdiction [Breavington v. Godleman (1988) 169 C.L.R. 41, at p. 87]. When exercising that jurisdiction, State courts are part of the Australian judicial system created by Ch. III of the Constitution and, in that sense and on that account, they have a role and existence which transcends their status as courts of the States.

It is inevitable that some differences will flow from the exercise of federal jurisdiction by State courts. ... In particular, it is entirely appropriate that the one body of law should regulate the conduct of proceedings in a court, whether State or federal jurisdiction is invoked. On the other hand, it is manifestly absurd that the legal consequences attaching to a breach of a law of the Commonwealth should vary merely on account of the location or venue of the court in which proceedings are brought [ See Breavington v. Godleman (1988) 169 C.L.R., at p. 88 where this point is made with respect to all matters falling for determination in the exercise of federal jurisdiction]. That is especially so where the liberty of the individual is at stake. Thus, no relevance attaches to the fact that some, perhaps most, Commonwealth offenders are convicted in State courts exercising invested federal jurisdiction, for, as has already been said, in the exercise of that jurisdiction those courts are part of the separate and entire judicial system created by Ch. III of the Constitution.

Apart from those held prisoner in the Northern Territory, persons sentenced to imprisonment for Commonwealth offences are confined in State prisons. By s. 120, the Constitution obliges the States to accept such prisoners ...

Clearly, the place in which a person is to be detained and punished is a matter which is relevant in the sentencing process. For example, it will have particular relevance if it results in the offender being unable to have visitors or otherwise enjoy facilities ordinarily available to prisoners. Similar considerations render it relevant that the sentence will be served with prisoners whose eligibility for parole will, in the main, have been determined in accordance with local State or Territory law. That is so because it is only by taking that matter into account that a court can ensure that its sentences are not a source of disharmony in the prisons. Thus, in the absence of some provision to the contrary, it will be relevant when sentencing a person for an offence against the laws of the Commonwealth to have regard in a general way to the overall relationship between head sentence and eligibility for parole under local State or Territory law.

It does not follow that, because it is relevant to have regard to the fact that an offender will serve his sentence with persons sentenced in accordance with local State or Territory law and, hence, to have regard to that local law, that it is appropriate for that law to be applied when sentencing for offences against the laws of the Commonwealth. The undifferentiating application of the law of the State or Territory in which conviction occurs, as was required by par. (a) and permitted by par. (b) of s. 4(1) of the repealed Act, results in that which is merely relevant becoming the dominant, if not the decisive, consideration. Moreover, if a minimum period is specified (whether as a set term or as a proportion of the head sentence), that will preclude the taking into account of non-parole periods set in comparable cases, unless, of course, those cases involved the application of the same sentencing law. Indeed, to the extent that different local laws require different minimum periods, reliable comparison is virtually impossible.

As already indicated, it is relevant when sentencing for offences against the laws of the Commonwealth that the offender will be imprisoned with persons whose eligibility for parole will be determined pursuant to local State or Territory law. But a law making that the dominant consideration, precluding reliable comparison with Commonwealth offences of the same kind and degree and resulting, at least generally, in different non-parole periods for comparable offences is not one which could reasonably be viewed as appropriate and adapted to that consideration. Accordingly, if s. 4(1) of the repealed Act was directed to accommodating that consideration - and it did not say that it was - it was nonetheless discriminatory.

...

... In my view this case raises the much narrower issue of whether the Parliament may require a court named or indicated in s. 71 of the Constitution to exercise a power by reference to a criterion or to criteria which will necessarily result in discrimination of the kind discussed.

The power to set non-parole periods, purportedly conferred by s. 4(1) of the repealed Act on the various courts exercising jurisdiction with respect to offences against the laws of the Commonwealth, is a power which can be conferred on a court, if at all, only by virtue of s. 71 of the Constitution. That section provides completely and exhaustively with respect to the judicial power of the Commonwealth [See, e.g. Huddart Parker and Co. Pty. Ltd. v. Moorehead (1908) 8 C.L.R. 330, at p. 355; Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan (1931) 46 C.L.R. 73, at pp. 96-98, 116; Reg. v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 C.L.R., at p. 289]. One consequence of the complete and exhaustive nature of s. 71 is that a power which is not judicial or ancillary or incidental to judicial power may not be conferred on the courts named or indicated in that section [ibid., pp 271-272, 289].

It has often been said that judicial power has not proved susceptible of exhaustive or exclusive definition [Reg. v. Davison (1954) 90 C.L.R. 353, at p. 366; Re Nolan; Ex parte Young (1991) 172 C.L.R. 460, at p. 497; Polyukhovich v. The Commonwealth (1991) 172 C.L.R. 501, at p. 532]. A definition of judicial power must take account of its varying character: ... Another feature which renders ‘judicial power’ difficult to define is that it cannot be defined only in terms of its content. It is necessary to have regard to the manner in and the processes by which the power is or is to be exercised [Harris v. Caladine (1991) 172 C.L.R., at p. 150].

It is an essential feature of judicial power that it should be exercised in accordance with the judicial process [ibid.; Re Nolan; Ex parte Young (1991) 172 C.L.R., at p. 496; Polyukhovich v. The Commonwealth (1991) 172 C.L.R., at p. 703; see also Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. (1970) 123 C.L.R. 361, at p. 374]. A legislative direction which would require a power vested in a court to be exercised other than in accordance with that process is necessarily invalid. Its effect would be to take the power outside the concept of ‘judicial power’. And a conferral of a power of that kind would infringe the prohibition deriving from s. 71 which limits the powers which may be conferred on a court to those which are judicial or ancillary or incidental to judicial power. Of course, it might be that, in some cases, a direction of that kind would be severable, so that the power, when shorn of the direction, is validly conferred.

All are equal before the law. And the concept of equal justice - a concept which requires the like treatment of like persons in like circumstances, but also requires that genuine differences be treated as such - is fundamental to the judicial process. Questions of constitutional prohibition aside, if the substantive law assigns significance to some matter that in reality it does not have, it thereby becomes a matter to be taken into account in the way that the law requires. And in that way, the law may treat things which are relevantly different as though they are not, or even treat things that are not different as though they are. But that is not the same as the conferral of a power of the kind purportedly conferred by s. 4(1) of the repealed Act. In the former case, a legal distinction is created or denied and the law is stated by reference to the existence or absence of that distinction. In the latter case, there is a directive to exercise a general power in different ways according to a factual matter, namely, the State or Territory in which the accused person stood trial.

The power purportedly conferred by s. 4(1) of the repealed Act varied in nature [Mandatory under s. 4(1)(a), permissive under s. 4(1)(b)] and in content, not according to the nature of the offence or the circumstances of its commission, but according to the place of conviction. As such, and in the ordinary course of events, the exercise of that power would involve a failure to treat like offences against the laws of the Commonwealth in a like manner and also a failure to give proper account to genuine differences. That is only another way of saying that s. 4(1) was discriminatory. But, stated in these terms, it is clear that a power of that kind is one that treats people unequally. As such its exercise is inconsistent with the judicial process.

It is not possible to sever the conditions attaching to the power to fix a non-parole period purportedly conferred by s. 4(1) of the repealed Act from the power itself. The conditions define the power and determine the nature of the discretion or, more accurately, the several discretions encompassed within it. Because the exercise of the power would necessarily involve impermissible discrimination, it is not part of the judicial power of the Commonwealth. Nor is it incidental or ancillary to it. By reason of s. 71 of the Constitution that power cannot be conferred upon the courts designated in that section to exercise the judicial power of the Commonwealth. Sub-section (1) of s. 4 of the repealed Act was invalid.”

In Chu Kheng Lim v. The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176

C.L.R. 1, the High Court held that Commonwealth legislation which authorised the Executive to detain

an alien in custody for the purposes of expulsion or deportation was valid,[17] but a majority (Brennan,

[17]            Subject to a qualification not presently material in the opinion of Gaudron J.

Deane, Dawson and Gaudron JJ.; Mason C.J., Toohey and McHugh JJ. dissenting) held that a further

provision which prohibited a court ordering the release of such a person was invalid.

Mason C.J. reached the opinion that the latter section was valid because of the manner in which he held

that it should be interpreted, namely as referring only to a prohibition on the release of a person in lawful

custody pursuant to the other provisions, to avoid a construction “setting at naught the fundamental

principle that no person shall be imprisoned except pursuant to lawful authority” (p. 13). Toohey and

McHugh JJ. also upheld the provision prohibiting release from custody by limiting its operation by a process of construction.

At p. 26-29, Brennan, Deane and Dawson JJ. said:

“CHAPTER III OF THE

C O N S T I T U T I O N

The Constitution is structured upon, and incorporates, the doctrine of the separation of judicial from executive and legislative powers. Chapter III gives effect to that doctrine in so far as the vesting of judicial power is concerned. Its provisions constitute ‘an exhaustive statement of the manner in which the judicial power of the Commonwealth is or may be vested ... No part of the judicial power can be conferred in virtue of any other authority or otherwise than in accordance with the provisions of Chap. III’ [Reg. v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 C.L.R. 254 at p. 270, per Dixon C.J., McTiernan, Fullagar and Kitto JJ.]. Thus, it is well settled that the grants of legislative power contained in s. 51 of the Constitution, which are expressly ‘subject to’ the provisions of the Constitution as a whole, do not permit the conferral upon any organ of the Executive Government of any part of the judicial power of the Commonwealth. 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 [See, e.g., Polyukhovich v. The Commonwealth (the War Crimes Act Case) (1991) 172 C.L.R. 501, at pp. 607, 689, 703-704].

There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character. The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth. That function appertains exclusively to [Waterside Workers' Federation of Australia v. J.W. Alexander Ltd. (1918) 25 C.L.R. 434, at p. 444] and ‘could not be excluded from’ [Reg. v. Davison (1954) 90 C.L.R. 353, at pp. 368, 383] the judicial power of the Commonwealth [See, also, the War Crimes Act Case (1991) 172 C.L.R., at pp. 536-539, 608-610, 613-614, 632, 647, 649, 685, 705-707, 721]. That being so, Ch. III of the Constitution precludes the enactment, in purported pursuance of any of the sub-sections of s. 51 of the Constitution, of any law purporting to vest any part of that function in the Commonwealth Executive.

In exclusively entrusting to the courts designated by Ch. III the function of the adjudgment and punishment of criminal guilt under a law of the Commonwealth, the Constitution's concern is with substance and not mere form. It would, for example, be beyond the legislative power of the Parliament to invest the Executive with an arbitrary power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt. The reason why that is so is that, putting to one side the exceptional cases to which reference is made below, the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt. Every citizen is ‘ruled by the law, and by the law alone’ and ‘may with us be punished for a breach of law, but he can be punished for nothing else’ [Dicey, Introduction to the Study of the Law of the Constitution, 10th ed. (1959), p. 202]. ...

There are some qualifications which must be made to the general proposition that the power to order that a citizen be involuntarily confined in custody is, under the doctrine of the separation of judicial from executive and legislative powers enshrined in our Constitution, part of the judicial power of the Commonwealth entrusted exclusively to Ch. III courts. The most important is that which Blackstone himself identified ... namely, the arrest and detention in custody, pursuant to executive warrant, of a person accused of crime to ensure that he or she is available to be dealt with by the courts.

Such committal to custody awaiting trial is not seen by the law as punitive or as appertaining exclusively to judicial power. Even where exercisable by the Executive, however, the power to detain a person in custody pending trial is ordinarily subject to the supervisory jurisdiction of the courts, ... Involuntary detention in cases of mental illness or infectious disease can also legitimately be seen as non-punitive in character and as not necessarily involving the exercise of judicial power. Otherwise, and putting to one side the traditional powers of the Parliament to punish for contempt [See Reg. v. Richards; Ex parte Fitzpatrick and Browne (1955) 92 C.L.R. 157; the War Crimes Act Case (1991) 172 C.L.R., at p. 626] and of military tribunals to punish for breach of military discipline [See R. v. Bevan; Ex parte Elias and Gordon (1942) 66 C.L.R. 452; Re Tracey; Ex parte Ryan (1989) 166 C.L.R. 518; Re Nolan; Ex parte Young (1991) 172 C.L.R. 460; the War Crimes Act Case (1991) 172 C.L.R., at pp. 626-627], the citizens of this country enjoy, at least in times of peace, a constitutional immunity from being imprisoned by Commonwealth authority except pursuant to an order by a court in the exercise of the judicial power of the Commonwealth.

If the first element - i.e. ‘non-citizen’ - of the definition of ‘designated person’ for the purposes of Div. 4B had been omitted with the consequence that those provisions purported to apply to Australian citizens, Div. 4B would be plainly beyond the legislative competence of the Parliament and invalid. The reason for that would not only be the absence of any relevant head of Commonwealth legislative power to found the application to citizens of this country of laws of the kind contained in Div. 4B. It would also be that Div. 4B, if not confined to non-citizens, would purport both to authorize involuntary imprisonment of citizens by executive designation and to deprive the courts of jurisdiction to order that a citizen, who had been so designated by the Executive, be released from custody if his or her detention in custody was found to be unlawful. Such a conferral upon the Executive of an essentially unexaminable power to imprison a citizen would, for the reasons given above, be inconsistent with the Constitution's doctrine of the separation of judicial from executive and legislative power and its exclusive vesting of judicial power in the courts. Ultimately, the critical question in the present case is whether the effect of the confinement of the application of the provisions of Div. 4B to non-citizens or aliens is to avoid such conflict between the provisions of Div. 4B and Ch. III of the Constitution.

EXCLUSION, DEPORTATION AND DETENTION OF AN ALIEN
While an alien who is actually within this country enjoys the protection of our law, his
or her status, rights and immunities under that law differ from the status, rights and
immunities of an Australian citizen in a variety of important respects. For present
purposes, the most important difference has already been identified. It lies in the
vulnerability of the alien to exclusion or deportation [See fn. (54)] . That vulnerability
flows from both the common law and the provisions of the Constitution. For reasons
which are explained hereunder, its effect is significantly to diminish the protection which
Ch. III of the Constitution provides, in the case of a citizen, against imprisonment

otherwise than pursuant to judicial process.”

Their Honours went on to conclude that the Commonwealth had legislative power under s. 51(xix) of

the Constitution to detain an alien pending expulsion or deportation or while determining an application

by the alien for an entry permit, and said at pp. 32-33:

“... Such limited authority to detain an alien in custody can be conferred on the Executive without infringement of Ch. III's exclusive vesting of the judicial power of the Commonwealth in the courts which it designates. The reason why that is so is that, to that limited extent, authority to detain in custody is neither punitive in nature [See, generally, Ex parte Walsh and Johnson; In re Yates (1925) 37 C.L.R., at pp. 60-61, 96; O'Keefe v. Calwell (1949) 77 C.L.R., at p 278; Koon Wing Lau v. Calwell (1949) 80 C.L.R., at p. 555; Chu Shao Hung v. The Queen (1953) 87 C.L.R., at p. 589] nor part of the judicial power of the Commonwealth. When conferred upon the Executive, it takes its character from the executive powers to exclude, admit and deport of which it is an incident.

...

Sections 54L and 54N
Section 54L is the pivotal section of Div. 4B. ... In the light of what has been said
above, the two sections will be valid laws if the detention which they require and
authorize is limited to what is reasonably capable of being seen as necessary for the
purposes of deportation or necessary to enable an application for an entry permit to be
made and considered. On the other hand, if the detention which those sections require
and authorize is not so limited, the authority which they purportedly confer upon the
Executive cannot properly be seen as an incident of the executive powers to exclude,
admit and deport an alien. In that event, they will be of a punitive nature and

saving the validity of wide provisions such as s. 16(3) by reading them down by reference to ministerial

comments in Parliament, so as to alter their meaning; this we were invited to do, I thought, by counsel

for the Commonwealth Attorney-General in the present case. A disadvantage of accepting such an invitation is that it encourages the process of passing legislation which is plainly too wide, creating an

additional and oppressive protective barrier, that of uncertainty. At least, it creates such a barrier while

the courts, perhaps over many years, determine the true legal effect of what has been enacted.

Particularly in an area such as the present, where what is involved is a conflict between the rights of

parliamentarians and those of other citizens, the court should hesitate to co-operate in such a process.

To come now to the operation of the subsection on defamation suits (by no means its only

operation), it was said during the course of argument that para. (3)(c) only applies to relevant evidence

- i.e. where an inference may be drawn wholly or partly from it. But that is not strictly correct; if a

question is asked in court on a point which is held to be irrelevant, the paragraph still applies, as long

as the purpose of the question is to invite the drawing of an inference or conclusion of the type

mentioned. But, that aside, it is sufficient for present purposes to note that to tender evidence about

words spoken in Parliamentary proceedings, as material to an issue in a defamation suit, is made

unlawful; it does not matter to what aspect of the case the evidence is material. For example, if a

parliamentarian sues for defamation, complaining of criticism of his or her Parliamentary performance,

the tender of evidence of what the plaintiff said in Parliament, to invite the drawing of an inference such

as that the defamatory material was unfair comment, would be unlawful. Suppose a parliamentarian is

accused of having made a speech "full of deliberate lies", then one necessary step in showing that the

speech did not merit that description would be to prove what was said; that process would, apart from

falling within the broad prescription in para (c), be caught also by (b), because the purpose would be

to establish the "credibility . . . of any person".

In Wright and Advertiser Newspapers Ltd v. Lewis (1990) 53 S.A.S.R. 416, a State

parliamentarian sued in circumstances of the kind just contemplated. The newspaper had accused the

parliamentarian, in effect, of telling defamatory lies about Wright in Parliament. It was contended for

the Attorney-General that the words spoken in Parliament could not be used as the subject of any

"submission or inference" (421); further, the Attorney argued that the court could not examine

statements made in Parliament to determine their truthfulness or otherwise.

King C.J. said that if this was so the result was "remarkable"; his Honour went on:

"A Member of Parliament could sue for defamation in respect of criticism of his statements or conduct in the Parliament. The defendant would be precluded, however, from alleging and proving that what was said by way of criticism was true. This would amount to a gross distortion of the law of defamation in its application to such a situation." (421)

White J. agreed, and referred to "glaring examples" of scrutiny of parliamentary speeches, in the course

of litigation, by the House of Lords and the New Zealand Court of Appeal. It was the opinion of

Olsson J. that the Bill of Rights was not available to a member of Parliament:

" . . . as an indirect weapon of attack, to facilitate the bringing of an action for damages by him against others by emasculating what might otherwise be valid defences available to them under the law." (447)

Suppose, in such a suit, that it happens that the parliamentarian makes no attempt to establish

the truth of anything in the speech which has been attacked, then the defendant is equally disabled; the

proposition that what was said consisted of untruths cannot be proved because what was said cannot

be proved. The predicament would be particularly galling, one would think, for a defendant who was

the subject matter of the untruths. These strange consequences are not ones which follow from a far-

fetched example; criticism, perhaps strong criticism, of what politicians have said in Parliament is a common affair and particularly likely to occur where the critic’s complaint is that a Parliamentary speech

traduces him or her.

I referred above to the view of the Privy Council that s. 16(3) merely sets out the effect of

Article 9 of the Bill of Rights 1689: Prebble v. Television New Zealand Ltd [1995] 1 A.C. 321 at 333.

If there were no other reason to reject the authority of that statement, the fact that the effect of Article

9 is so uncertain, even three centuries after its enactment, is sufficient reason to do so.

It is unnecessary comprehensively to illustrate the proposition that s. 16(3) does not merely

reproduce the law as it was understood to be under Article 9 of the Bill of Rights; but it may be helpful

to note, without analysing, some of the authorities in which the result would have been different had a

statute such as s. 16(3) applied. In the House of Lords, there is Adam v. Ward [1917] A.C. 309, in

which qualified privilege was pleaded by way of defence to an action brought, based on a statement

critical of the plaintiff’s conduct as a parliamentarian; the plaintiff’s statements made in speeches in

Parliament were allowed to be proved (322, 323, 341, 342, 343, 345). More recently, I note R v.

Secretary of State for the Home Department Ex parte Brind [1991] 1 A.C. 696, in which the court

was invited to examine Hansard to demonstrate the correctness of what the Minister had done, in an

administrative law case; the invitation was accepted. In Pepper v. Hart [1993] A.C. 593, it was held,

there being no statutory warrant for the course proposed, that ministerial speeches could be examined

to ascertain parliamentary intention. In the two earlier cases it seems to have occurred to none of the

Law Lords that examination of Hansard might be unlawful. Then there are the Australian authorities,

helpfully summarised by Beaumont J. in Amann Aviation Pty Ltd v. Commonwealth (1988) 19 F.C.R.
223 at 226, 227.

The three constitutional principles which are relevant to the validity of the sub-section are

concerned with first, improper interference with the functioning of courts exercising Federal jurisdiction;

second, improper interference with the freedom to criticise and otherwise discuss political matters; and,

lastly, the requirement that legislation be in terms which are reasonably proportional to legitimate

legislative purposes.

For the purposes of deciding the constitutional issue here, it is unnecessary to deal with the first

principle, other than to say that it is not discarded because thought to be inapplicable, but simply

because application of the second and third principles appears to lead to a clearer conclusion.

The most important decision on the extent to which constitutional limitations impinge upon

defamation law is Theophanous v. The Herald & Weekly Times Ltd (1994) 182 C.L.R. 104. It

decided nothing immediately applicable to the present dispute, but the case at least provides evidence

of the closeness of the relationship between the citizen’s right to criticise politicians, and the content of

defamation law. It is that relationship which is in issue here. I note that the principal judgment said that

criticism of the views, performance and capacity of parliamentarians is "at the very centre of the freedom

of political discussion" (123). In the same set of reasons, it is pointed out that the implied freedom of

communication protects political discussion from exposure to onerous liability (130). I postulated above

the problem confronting the traduced citizen, sued by a parliamentarian for criticism of what has been

said in Parliament about the citizen; if s. 16(3) is valid, such a suit would presumably have to be decided, both as to liability and quantum of damages, on the basis that the criticism of the

parliamentarian for making the speech was not shown to have any basis. In this and in other ways, s.

16 can inhibit legitimate attacks outside Parliament on what is said within it, by subjecting the critics to

the risk of an unjust liability in damages.

The decisions given two years earlier, on which Theophanous is based, are Nationwide News

Pty Ltd v. Wills (1992) 177 C.L.R. 1 and Australian Capital Television Pty Ltd v. Commonwealth

(1992) 177 C.L.R. 106. In the former case all the judges were of opinion that a law inhibiting criticism

of the Industrial Relations Commission was affected by invalidity, and all except Dawson J. reached

their conclusion either on the ground of the disproportionality of the impugned legislation, or on the

ground of conflict with an implied freedom of discussion, or on both such grounds. Insofar as the judges

relied on disproportionality, there was a tendency to judge the legislation by reference to its impact on

freedom of discussion; see in particular Mason C.J. at 34 and McHugh J. at 105; Mason C.J. said that

in deciding proportionality the Court must take account of the impact of the impugned law on freedom

of expression. But the real advance in the case, the recognition of a separate principle of protection of

freedom of discussion of politics is, with respect, most usefully expressed for present purposes by

Brennan J., as his Honour then was:

"To sustain a representative democracy embodying the principles prescribed by the Constitution, freedom of public discussion of political and economic matters is essential . . . : it would be a parody of democracy to confer on the people a power to choose their Parliament but to deny the freedom of public discussion from which the people derive their political judgments." (47)

"No law of the Commonwealth can restrict the freedom of the Australian people to discuss governments and political matters unless the law is enacted to fulfil a legitimate purpose and the restriction is appropriate and adapted to the fulfilment of that purpose." (50)

That this freedom extends, in particular, to the conduct and performance of parliamentarians is clear;

see per Deane and Toohey JJ. at 74.

In the second, A.C.T.V., case, a restriction on freedom of political communication was directly

in issue and all the judges except Dawson J. were of opinion that the restriction was at least partly

invalid. In a number of passages, the importance of defamation law in this context was recognised; in

particular Brennan J. (as his Honour then was) pointed to the substantial restriction on freedom of

political communication involved in certain aspects of defamation law (159). Deane and Toohey JJ.

linked the notions of freedom of political communication and proportionality (174).

In Stephens v. West Australian Newspapers Ltd (1994) 182 C.L.R. 211, decided on the same

day as Theophanous, the authority of these decisions was accepted (232). I have noted, however, that

in McGinty v. Western Australia (1996) 186 C.L.R. 140 at 236, a member of the court explicitly

rejected the authority of these cases, insofar as they were based on an implied principle of

representative democracy (243). The decisions are of course binding on this Court and their binding

quality does not necessarily depend on that principle; they established that the Commonwealth

Parliament has not an unfettered right, in legislating on the subjects which the Constitution allocates to

it, to inhibit political criticism and discussion. Theophanous is authority, if authority were needed, that

laws governing defamation suits may impede that protected freedom.

To return to the terms of s. 16(3), I concentrated above on the broadest provision, para. (c); unless one qualifies it in one of the ways suggested on behalf of the Commonwealth, it cannot stand, because it is in substance a simple prohibition on raising in court anything done or said in Parliament.

This can interfere with freedom to attack or analyse what happens in Parliament by distorting, to the

point of absurdity, the way in which defamation suits relating to that subject must be conducted. To a

substantial extent the criticisms I have made of (c), insofar as it affects defamation suits, apply to paras.

(a) and (b), which if valid would prevent examination in court of the truth or fairness of most criticism

of activity in Parliament.

It would no doubt be possible to save the validity of parts of each of these paragraphs, insofar

as they bear on defamation suits; but it is doubtful whether this would be proper. First, to dissect these

provisions out with reference to a particular subject, namely defamation, would seem inappropriate, for

the constitutional problems involved in subs. (3) - for example, with respect to crimes committed in

Parliament - extend well beyond the sphere of defamation. Secondly, I am impressed by the reluctance

of members of the High Court, in the 1992 judgments, to effect severance in such a context: see in

particular Brennan J. (as his Honour then was) at p. 61, Deane and Toohey JJ. at p. 80, and Dawson

J. at p. 91 of 177 C.L.R. Thirdly, as was pointed out during the course of argument in the present case,

there is a neat method of severance built into s. 16, by simply treating the whole of subs. (3) as invalid,

leaving the pre-existing law operating. But it is unnecessary for present purposes to determine whether

any and if so how much of subs. (3) is valid. It appears to me enough to decide, as I do, that it does

not validly operate with respect to the conduct of defamation suits.

Other Issues

The demurrer attacks in ground 1(a) what is pleaded in para. 3A of the second further amended
defence of the first defendant. Paragraph 3A raises only s. 16(3) of the Parliamentary Privileges Act

1987-1988 and so there is no occasion to determine at this stage the impact of the law of Parliamentary

privilege on the suit, apart from s. 16(3), dealt with above.

Next, para. 1(b) of the demurrer raises the question whether publication of the matter

complained of in the statement of claim is "capable of being a fair report in good faith for the information

of the public of proceedings in a House of Parliament". This part of the demurrer attacks para. 6(a)(i)

of the defence which alleges, in substance, that what was said outside Parliament by the first defendant

constituted publication of what he had said in Parliament then such publication constituted such a report

as I have mentioned. The point being made can be put in the form of a dilemma: if the publication

outside Parliament incorporates that inside Parliament, then it is a fair report; if it does not incorporate

that then it is innocuous. Whatever the merits of this reasoning, the difficulty the first defendant faces,

is that it is not in fact alleged that the publication of the matter set out in para. 13 or para. 14 of the

statement of claim (outside Parliament) constituted publication of the material set out in para. 9 or para.

11. That is, unless the plaintiff’s pleading complains of defamation by publication of what was said in

Parliament - and the plaintiff makes no such complaint - no question of the defamatory matter

constituting a fair report can arise. The allegation which is, wrongly, attributed to the plaintiff is at best

for the first defendant an inference, rather than an implication: see Lubrano v. Gollin & Company Pty

Ltd (1919) 27 C.L.R. 113 at 118. Therefore, the demurrer must, as to para. 6(a)(i) of the defence,

be allowed.

Next the plaintiff demurs to para. 6 (a)(ii) of the defence which sets up, in effect, that if publication of what was said outside Parliament constituted publication of what was said within Parliament then "such publication . . . constituted fair comment with respect to those matters (being part

of the said proceedings in that House of Parliament) which had already been published in good faith by

way of fair report of those said proceedings elsewhere".

This plea is subject to the same criticism as I have made of the preceding subparagraph, but to

read the plea as dependent entirely upon the proposition that the plaintiff’s pleading complains of

publication of what was said in Parliament appears to be too strict a view. That is, the success or failure

of the plea of fair comment with respect to a fair report of parliamentary proceedings does not depend

upon the statement of claim having complained of publication of what was said in Parliament. A more

pressing difficulty, with respect to this plea, is that the defence places in issue (by para. 4) general

allegations of publication of the parliamentary material made in para. 10 and 12 of the statement of

claim, whereas para. 6(a)(ii) cannot be a good plea unless there has been a "publication of a fair report

in good faith for the information of the public": see s. 375(1)(a) of the Criminal Code. The defence

does not allege any such publication and therefore the plea is bad.

Next, the demurrer attacks para. 7 of the defence, which raises a number of separate defences.

Little was said in argument about these, but two general points are made. First, it is said that para. 7

does not "plead the facts and circumstances which are relied on as a defence". If the pleading is

deficient in this respect it is a question of inadequate particulars and not a demurrer point. Then, it is

argued that s. 10(1) of the Parliamentary Privileges Act 1987 is inapplicable, but no reason is given

for that assertion; it seems designed to raise a factual rather than a legal issue. Also, with respect to

para. 7, it is said that two pleas made under the general law are unavailable. We have had no argument

on this and it seems to me plain that the Court should not deal with the points raised; cf. Campbell v.

Queensland Newspapers Pty Ltd [1970] Qd.R. 302 at 308, 309. Under O. 29 r. 5(2) the Court has

a discretion to direct that the issues of fact shall be first tried and that must be done, in relation to para.

7(b) and (c). Lastly, there is a general attack upon para. 8A, which raises what was called the

Theophanous defence; the same applies to those issues - i.e. the issues of fact should first be tried.

The orders I propose are:

1.          Demurrer allowed with respect to paragraphs 3A and 6(a) of the Second Further Amended

Defence of the First Defendant.

2.          Demurrer overruled with respect to paragraph 7(a) of the said Defence.

3.          Otherwise, with respect to the issues of law raised by the demurrer, it is directed that they be

disposed of at the trial, when the relevant facts have been determined.

4.          Costs of demurrer to be plaintiff’s costs in the action.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 80 of 1995

Brisbane

Before Fitzgerald P.
Pincus J.A.
Davies J.A.

[Laurance v. Katter]

BETWEEN:

PETER MAXWELL LAURANCE

Plaintiff

AND:

ROBERT CARL KATTER

First Defendant

AND:

ROLAND JOHN ELLEMS

Second Defendant

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 22 November 1996

The relevant facts and the circumstances in which the matter became before this Court are

stated in the reasons for judgment of the President. The most difficult question before this Court was

raised by the demurrer to para.3A of the defence. That demurrer contended that allegations in paras.9

and 11 of the Statement of Claim stating what the first defendant said in Parliament were not capable

of being in breach of s.16 of the Parliamentary Privileges Act 1987 (Cth) in circumstances in which the

plaintiff did not allege that what the first defendant said in Parliament was defamatory of him but, in effect, that what the first defendant said out of Parliament incorporated what he said in Parliament and,

by doing so, was defamatory of him. That question involved the meaning and application, and possibly

the validity of s.16(3). It is to that question that I now turn.

The meaning of s.16(3)

Read literally, and in isolation from its context, in particular sub-s.(1), s.16(3) would, if valid,

have the effect of prohibiting the receipt in a court or tribunal of evidence which would not, in any way,

inhibit the freedom of speech in Parliament. In the very worst kind of defamation of a parliamentarian

for what he or she had said in Parliament, involving malicious publication of deliberate falsehood, it

would prevent the parliamentarian from adducing evidence of the statements made in Parliament to

prove that he or she had been defamed by the publication or to rebut a defence of truth or fair comment

which might otherwise be open from the publication. And it would defeat the plaintiff's claim in this case

by preventing him from proving the statements alleged in paras.9 and 11 of his Statement of Claim.

Such consequences appear to be inconsistent with the stated legislative intent, in sub-s.(1), merely of

avoiding doubt as to the effect of Article 9 of the Bill of Rights which, in modern language, provides:

"That the freedom of speech and debates or proceedings in Parliament ought not to be
impeached or questioned in any court or place out of Parliament."

Moreover, unless the phrase "or place out of Parliament" is limited to tribunals[27], the literal

[27]           As Hunt J. thought in R. v. Murphy (1986) 5 N.S.W.L.R. 18 at 29, 30; but see contra

construction would require a much greater (and seemingly illogical) restriction upon discussion of
parliamentary proceedings in court than in other places.

As it is possible to give to sub-s.(3) a meaning which accords with the intent stated in sub-s.(1),

as I shall endeavour to show, sub-s.(3) is at least ambiguous (its literal meaning is also arguably absurd)

and that ambiguity permits reference to be made to the Second Reading Speech of the President of the

Senate and the Explanatory Memorandum in respect of the Bill for the Act[28].

[28]         Acts Interpretation Act 1901 (Cth) s.15AB.

According to the Second Reading Speech[29] the Act was enacted to overcome the decisions

[29]           Second Reading Speech, Senate, 7 October 1986, p.893. See also Second Reading Speech,

of Cantor J. and Hunt J. in the two cases of R. v. Murphy30. The effect of the first of these decisions,

it was said, was to allow witnesses, including the accused, to be rigorously cross-examined on evidence

which they gave to Senate committees, including evidence given during in-camera proceedings, and to

allow submissions to be made, on the basis of that cross-examination, as to the credibility of those

witnesses.

Again according to the Speech, Hunt J. ruled that this use of parliamentary proceedings was not

in breach of Article 9 because the latter was restricted to preventing the prosecution of or suit against

a person for what that person has said or done in the actual course of parliamentary proceedings.

According to that judgment, it was said in the Speech, it was not a breach of Article 9 to use

parliamentary proceedings as evidence of an offence or of civil liability, to establish the motive or

intention of a person for the purpose of proving an offence or a civil liability, or to attack the credibility

of a person. The President expressed the view that this construction would pose a serious threat to the

freedom of speech of members of Parliament and of witnesses before parliamentary committees. It was also a narrower construction of the ambit of Article 9 than that adopted in a number of other cases;

hence the need to resolve any doubt as to the correctness of these two decisions.

The President relevantly concluded by stating two reasons for framing the Bill in this fashion:

first, because the Bill must start with a general declaration of the immunity of parliamentary proceedings

from question or examination, and the language of Article 9 is difficult to improve upon; and secondly

to make clear the Parliament's belief that Article 9 should properly be interpreted as the Bill provides

and always should have been interpreted that way.

30 The first is unreported but the second is at (1986) 5 N.S.W.L.R. 18.

Read in the context of the section as a whole, and in the light of these statements, the intention

of sub-s.(3) can be seen to be to state, in wider terms than the judgments in the two cases of R. v.

Murphy would permit, those circumstances in which, in proceedings in a court or tribunal, the freedom

of speech is not to be impeached or questioned. It is not just where a member or witness is sued or

prosecuted for what that person has said in Parliament or before a committee. It is in any proceedings

in a court or tribunal in which evidence is sought to be tendered or received, questions asked or

statements, submissions or comments made concerning proceedings in Parliament by any of the ways

or for any of the purposes stated in paragraphs (a), (b) or (c). In other words sub-s.(3) makes it

unlawful in any such proceedings to tender or receive evidence, ask questions or make statements,

submissions or comments concerning proceedings in Parliament by way of or for any of these purposes

if that would impeach or question the freedom of proceedings in Parliament. And it leaves for decision

in each case whether that consequence will ensue. This construction would accord with the stated intent

of sub-s.(3) of avoiding doubt as to the effect of Article 9 whilst retaining its essential purpose of

preventing impairment of freedom of speech in Parliament[31].

[31]           It also appears to derive some support from the Explanatory Memorandum, supra fn.3 at

There is an additional reason why, in my view, sub-s.(3) should be construed in this way. It

would achieve a satisfactory balance between the public interest in protecting the freedom of political

discussion and the competing public interest in protecting the freedom of speech in Parliament which s.49 of the Constitution authorises. It would permit freedom of discussion of proceedings in Parliament,

including in court proceedings, except where that would impeach or question the freedom of speech or

debates in parliamentary proceedings.

It is unnecessary to consider in this case whether sub-s.(1) also imposes upon sub-s.(4), a

qualification that the admission of the evidence must impeach or question the freedom of proceedings

in Parliament; but the facts that its operation is in addition to that of sub-s.(3) (because much of the

evidence to which it refers would satisfy one or more of the requirements of sub-s.(3)) and that the

existence of a power in a court to compel disclosure of evidence given in-camera to a parliamentary

committee would, without more, be likely to inhibit the giving of that evidence, make that construction

unlikely[32]. Plainly neither sub-s.(5) nor sub-s.(6) are subject to that qualification.

[32]           See also Explanatory Memorandum supra fn.3 at 14.

The application of s.16(3), on that construction, to the facts of this case

There is no doubt, in my view, that reliance by the plaintiff on what the first defendant said in

Parliament for the purpose of inviting the Court to draw the conclusion that his adoption, outside

Parliament, of what he said in Parliament, was defamatory, comes within the literal terms of sub-s.(3)(c).

The defences may also bring it within paras.(a) and (b).

A more difficult question is whether reliance in this way on what the first defendant said in

Parliament impeaches or questions parliamentary proceedings; in particular whether it impairs the first

defendant's freedom of speech in Parliament. I do not think that it does. The first defendant was free
to say what he did in Parliament.

No impropriety is alleged against the first defendant in respect of what he said in Parliament.

What is alleged against him in the Statement of Claim is that what he said outside Parliament was false

and defamatory of the plaintiff. It is true that proof that what the first defendant said outside Parliament

was false will also prove that what he said in Parliament was false. But that is because he incorporated

the latter in his statements outside Parliament. The privilege of Article 9 applies to the statements in

Parliament but not to the statements made out of Parliament even though they incorporated by reference

the statements made in Parliament. This case is distinguishable in this respect from Prebble v. Television

New Zealand Ltd.[33] in which the defendant, sued by a parliamentarian for defamation, was attempting

[33] [1995] 1 A.C. 321. I leave out of account the effect which the implied freedom of political

to use what the plaintiff said in Parliament against him to prove dishonesty and improper motive. It does

not follow from what I have said that the first defendant could be cross-examined in this action upon

what he said in Parliament for the purpose, for example, of showing that what he said there, and

consequently his reaffirmation outside Parliament, was made with an improper motive. But that question

is not before the Court.

I would therefore conclude that the demurrer on this ground should be allowed. In summary,

the allegations in paras.9 and 11 of the Statement of Claim are not capable of being in breach of s.16(3)

because:

(1)	that sub-section applies only to allegations which, relevantly, impeach or question the
freedom of speech in Parliament; and
(2)	these allegations are not capable of doing that because they are made solely for the
purpose of proving what was incorporated in statements made by the first defendant out of Parliament.

The validity of s.16(3)

This question arose only on the premise that, on its proper construction, s.16(3) had the effect

of preventing the plaintiff from adducing in evidence what the first defendant said in Parliament for the

purpose of proving that his reaffirmation of it outside Parliament was defamatory. In view of the

conclusions which I have reached therefore it is unnecessary to consider this question.

The demurrer to paragraph 6(a)(i)

Paragraph 6(a)(i) alleges that if as alleged or impliedly alleged the publication of the matter

published outside Parliament constituted publication of what was said inside Parliament then it was made

in good faith for the information of the public by way of a fair report of parliamentary proceedings. It

may be assumed for present purposes that the premise on which the allegation is made is correct. But

even if that is so what was published out of Parliament could not be a fair report of proceedings in

Parliament. What it was, as I have already indicated, was a reaffirmation by the first defendant, out of

Parliament, of what he had said in Parliament. In other words it was, within the meaning of s.10(1) of

the Parliamentary Privileges Act an "adoption" by the first defendant of the substance of what he said

in Parliament. This demurrer should therefore also be allowed.

The demurrer to paragraph 6(a)(ii)

Paragraph 6(a)(ii) alleges that if, as alleged or impliedly alleged, the publication of the matter

outside Parliament constituted publication of what the first defendant said inside Parliament then such

publication constituted fair comment with respect to those matters (being part of the proceedings of

Parliament) which had already been published in good faith by way of fair report of those proceedings

elsewhere.

I think that there is substance in the plaintiff's contentions before this Court that what was said

out of Parliament was not capable of being comment; that those statements were rather statements of

adoption of what was said in Parliament together with statements of further fact. But in any event I

would allow the demurrer for the reasons given by Pincus J.A.

The demurrers to paragraphs 7 and 8A

I agree with what Pincus J.A. has said about those demurrers.

Orders

I agree, for the above reasons, with the orders proposed by Pincus J.A.

cp. Criminal Justice Commission v. Nationwide News Pty Ltd [1996]2 Qd.R. 444. See also Pepper
v. Hart [1993]
A.C. 593, 638-

640; New

South Wales
Branch of the
Australian
Medical
Association

v. Minister for

Health and

Community
Services

(1992)	26
N.S.W.L.R. 114.

prosecutions for offences.

Pepper v. Hart [1993] A.C. 593 at 638E-F.

House of Representatives, 19 March 1987, p.115b; Parliamentary Privileges Bill 1987 (including amendments made by the Senate), Explanatory Memorandum, p.9.

12-14.

discussion would have on cases such as this.