Laws v Australian Broadcasting Tribunal

[1990] HCATrans 4

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl05 of 1989

B e t w e e n -

RICHARD JOHN SINCLAIR LAWS

Appellant

and

AUSTRALIAN BROADCASTING TRIBillTAL

Respondent

MASON CJ
BRENNAN J
DEANE J
GAUDRON J

Laws(2)

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 FEBRUARY 1990, AT 10.2LAM

Copyright in the High Court of Australia

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MR T.E.F. HUGHES, QC:  May it please the Court, in this

ppeal, I appear with my learned friend,

-MISS C.F. WEIGALL, for the appellant, who was

the.appellant in the Full Court and the applicant for

judicial review in.the first place.(instructed by

~'\llen Allen & Eer.1sley)

MR W.H. NICHOLAS, QC: If the Court pleases, I appear with

my learned friend, MR J.S. HILTON and MISS M. CLARK,

for the respondent.(instructed by the --

Australian Government Solicitor)

MASON CJ: Hr Hughes.

MR HUGHES:  May it please Your Honours. First of all may I

hand up seven copies of a perhaps rather full

outline, but it has been made full in the hope of

shortening the time taken in argument.

MASON CJ:	Thank you.
MR HUGHES:	I think my learned friend has a chronology that

·we have sigi_1i.ted· and he would like to hand up and we

have no objection.

MASON CJ: Yes.

J:,IR. NICHOLAS:  If the Court pleases, we have prepared a chronology

which we hope will assist the Court.	May we hand
up that.	Your Honours will see that we have written
in an additional matter.	And there is one further

matter, Your Honours, if I may,before my learned

friend begins. Your Honours,the case is going to

involve consideration of the composition of the

Broadcasting Tribunal from time to time. We have

put on affidavit recent appointments for movements

in the Tribunal, in addition to those that have

taken place since the Full Federal Court dealt with

the matter and we would seek the Court's leave to

file in Court the affidavit which brings those

matters up to date and if the Court eives us that	leave we would ask it to receive the affidavit of
Russell Jam.es Patrick of 2 February 1990.

(Continued on page 3)

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BRENNAN J:	How can we receive fresh evidence?
MR NICHOLAS:	Your Honours, we would have thought in a case

of this kind where the appellant is seeking,
in effect, a perpetual injunction against the

Tribunal on the basis that all of its members

for all time are disqualified from embarking on

this matter we would be wanting to put to the

Court that there have been a number of changes to

make good the proposition that there would be quite

a number of members of the Tribunal, not as it were

infected by any earlier decision of it.

BRENNAN J: If the appellant were to succeed could the

injunction not be so framed as to take account of the

possibility and, if need be, the reality of the

fresh appointments?

MR NICHOLAS:  Yes, it could. Yes, it certainly could do that.

BRENNAN J:  And is that not the order which,if the appellant be

right,the Court below should have made?

MR NICHOLAS:  Your Honour, firstly, the appellant is seeking

a perpetual injunction. That is what it sought in the

Full Federal Court. Before this Court it puts its claim for

relief in the alternative. It is seeking an

injunction until after the hearing of the defamation

action. Now, I suppose, with respect, what

Your Honour Mr Justice Brennan said that if the

appellant was successful to some extent then no doubt

an order of this Court could accommodate the

situation. All we sought to do, and we thought it
may have been of assistance to this Court to know

what the true position was as far as the present

situation of the Tribunal -

MASON CJ:  But would it not be better to leave this matter

until we have heard Mr Hughes's argument?

MR NICHOLAS:  Yes, we can do that, Your Honour. (Continued on page 4)

MASON CJ: Yes, Mr Hughes.

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MR HUGHES: . Your Hono1.,1.rs, the history of the case.

starts with a number of broadcasts mad~ by the appellant
in talk-back radio P-rogram:res in the month of March 1987.

Th~ Tribunal considered these broadcasts without hearing from Mr Laws, without giving Mr Laws an opportunity of

being heard, that is corrn:non ground. So, on 24 November 1987

the Tribunal purported to decide as is paragraph 1 of

our document, that the appellant had corrn:nitted contravention

of Radio Program:re Standard 3 in eight broadcasts in March

1987.      Your Honours will find the text of that radio

program:restandard at page 84 of the appeal book, line 2~

It says:

A licensee may not transmit a program which:

(a) is likely to incite or perpetuate hatred

against; or

(b) gratuitously vilifies:

any person or group on the basis of ethnicity,
nationality, race, gender, sexual preference,
region or physical or mental disability.

The document dated 24 November 1987, Your Honours, is to be found at page 20 and following pages of the

appeal book and for present purposes I doubt whether

I need do more than refer Your Honours to the two

paragraphs which, in the margin, are described as

"decision" at page 21, line 40.

(Continued on page 5)

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MR HUGHES (continuing):

It is the decision of the Tribunal that

in broadcasting -

the programs on the specified dates, Mr Laws -

bre~ched Radio Program Standard 3. on each

of those days.

The next step was that on 27 November 1987 the Tribunal purported to decide - and we have called that in this

outline the second decision - to hold an inquiry into
the question inter alia whether it should exercise

against the appellant any of its powers under

section 119 of the BROADCASTING ACT. The exercise of

those powers adversely to the appellant would, of

course, impinge upon his livelihood as a radio

broadcaster and cormnentator.

The next thing I should do, I think, Your Honours,

is to invite Your Honours' attention to section 119

of the Act. It says:

(1) Where a person has -

(a) presented in a live broadcast the whole

or a part of a program; or

(b) passed or selected for broadcasting the

whole or part of a program .....

in respect of which, or in respect of the

broadcasting of which, the program standards

were not complied with or this Act was

contravened, the Tribunal may, by direction

having effect either indefinitely or for a

period determined by the Tribunal -

(c) prohibit the person from presenting

programsin live broadcasting or passing or

selecting programs for broadcasting; or (d) impose restrictions on the presenting by

the person of programs in live broadcasts -

et cetera -

(2) The Tribunal shall not give a direction

to a person under sub-section (1) unless it
has, by notice in writing served on the person,
called upon the person to show cause, within a

period specified by the Tribunal, why the

direction should not be given.

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MR HUGHES (continuing): At ?age 42 of the appeal book,

Your Honours, there appears a document which sets out,

as published for general information, the terms of

reference of the inquiry that the Tribunal decided to hold, and Your Honours will observe that the terms of reference were confined to what action, if any, the

Tribunal should take in respect of the contraventioners

that it had found in the ex parte investigation. The

existence of the breaches or contraventions by Mr Laws

was implicitly assumed.

Mr Laws commenced proceedings for judicial review

on 2 February 1988, challenging each of the two decisions,

which we have summarized in our first and second paragraphs.

As to the first decision it was put, this being the main

ground, that it was vitiated because it was made in denial

of natural justice; as to the second, that it was

vitiated by the invalidity of the first decision, because

on the true interpretation of section 119, it is a

jurisdictional conditional precedent to the lawful

exercise against the presenter of a radio programme of
the powers conferred by section 119(1) that
there should be a valid finding against that person of
his involvement in a contravention of a relevant programme

standard.

Mr Justice Morling, the primary judge, Your Honours,

if we may venture to say so, expressed somewhat inconsistent

conclusions as to the nature and effect of the first

decision. In two passages of His Honour's reasons,

His Honour said that the decision was merely to recommend

that an inquiry be held, that is an inquiry under
section 119. Those two passages we have side referenced

in the outline.

(Continued on page 7)

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MR HUGHES (continuing):  Then in a later passage, which appears

at page 53 of the appeal book, His Honour correctly

said - in our submission correctly said - that the

statements made in the 24 November document were

tantamount to a positive finding that Laws had failed

to observe the standard; Standard 3. The view first expressed, namely that all the Tribunal had done was merely to make a recommendation, was really the

foundation of His Honour's conclusion that in the

investigation made prior to the first decision the

Tribunal was merely exercising its general powers

under section 17(1) and section 124(2) of the Act,

and was not exercising any power which affected

Mr Laws's rights.

So, His Honour Mr Justice Morling said that

what the Tribunal did up to the point of time at
which it decided to hold the inquiry under section 119,

it was not bound by the rules of natural justice.

The Full Court rejected that conclusion. Its approach,

which we submit was correct, was that the second

decision, whatever may have been the doubtful status of

the first, or the perhaps doubtful status of the

first, was an adoption of the earlier decision by

the full Tribunal, or at least by a quorum of its

members. That passage appears at page 106 of the

appeal book.

The Full Court regarded that approach as justified

by the apparent intention established by documentary

evidence of the Tribunal that in the inquiry concerning

the exercise of powers under section 119 there should

be no issue as to whether or not there had been a
non-compliance with the standard. In other words, the
terms of reference, as I said perhaps earlier, assumed

the appellant's guilt, or assumed his contravention. It is the appellant's submission that the Full Court

was correct in its reasoning to the conclusion that

the Tribunal on 27 November adopted as a corporate

statutory body the earlier first decision, and it is

really unnecessary to examine any other possible

basis for attacking the second decision.

DEANE J: Are we concerned with 6, Mr Hughes?
MR HUGHES:	No, no.

DEANE J: That is not in issue?

MR HUGHES:  I rest on the approach that the Full Court said.

Perhaps doing more than was necessary we adumbrated a

possible other approach, but it is unnecessary to pursue

it at this stage, if Your Honour pleases.

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MR HUGHES (continuing):  On the ground of constructive bias,

that is the reasonable apprehension test,

Mr Justice Marling had ordered that none of the

Tribunal members - there were three - who

participated in the first decision should participate

in any inquiry under section 119. His Honour

contemplated that in that inquiry the appellant

would be entitled to assert his innocence of any
contravention of Standard No 3, and we respectfully
would say that in doing so His Honour left out
of account the particular structure of the terms

of reference, to which I have already invited

Your Honours' attention.

The Full Court, Your Honours, held, in effect,

that if the Tribunal should propose to proceed

further against Laws it would have to start the

whole inquiry from scratch. The court did not

accept the appellant's submissions that certain
events which occurred after the second decision,

and in the case of one of event after the hearing

before the primary judge and just before His Honour

delivered his judgment which was delivered on

5 August 1988, had the effect of disqualifying

all members of the Tribunal from proceeding with

any further investigation or inquiry into the matter.

Those events we now proceed to examine for the purposes of our argument.

On 29 April - perhaps the first event which

should have been included in this outline was that

very shortly after 27 November 1987 the Tribunal

published its decision and its reasons, that is

the decision that there had been a contravention

and the decision to hold an inquiry in its journal,

ABTEE. Then, on 29 April, while the proceedings

for judicial review were pending, a

Miss Janet Paramore, the director of the programmes

division of the Tribunal, gave an interview on

radio station 2GB.	The interviewer was
Jane Singleton.	A transcript of the interview
was tendered in evidence before Mr Justice Marling.

Your Honours will find that transcript in two places,

the first one - and it is a convenient reference

point - is page 7 of the appeal book. It runs

over several pages.

We have submitted and we, of course, still

submit, that the content of Miss Paramore's remarks

to Miss Singleton raises a clear inference that

she gave the interview on behalf of the Tribunal

and with its authority for the purpose of explaining -

it was said in the broadcast - the way in which

the Tribunal saw or sees the broadcasts which were

the subject of the first and second decisions.

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MR HUGHES (continuing): In any event, one would infer that

a senior officer of the Tribunal who gives a radio
interview pertaining to Tribunal business does so with
the T~ibunal's authority. In the interview, given, as

I said, while the application for judicial review was

sub judice, awaiting hearing, Miss Paramore made

statements asserting in substance the appellant's guilt
of the alleged conduct which was the subject of the

two decisions under challenge.

Your Honours may care to look briefly at the

content of the broadcast at page 7. Miss Singleton

begins by saying:

Before the news I was talking about what

I think has become a muddled public perception

of what has been happening between the

Australian Broadcasting Tribunal and Mr Casey

and Mr Laws.

I firmly believe that balanced progrannning,

giving the right to the other side to make an

opinion is a very important part of the way we

conduct a democracy in Australia.

I made some fairly strong statements at that

time, but I also said I firmly believed it was improper for me to do that without some almost

independent base.

To that I want to go to the Australian Broadcasting

Tribunal, not because they are not one sided,
but because they can explain exactly what it is

in their Act and their regulations that has meant

that Laws and Casey have been taken to task.

In fact, one has lost his job.

That was Mr Casey. Then Miss Paramore was introduced

and she said, at page 8, after some reference to Casey:

John Laws is taking his action in the court because the tribunal found that a number of his broadcasts

breached the same standard -

that is 3 -

and opened a public inquiry in order to determine

what sort of action it should take -

and then she explained what she saw as the meaning of

the relevant standard, saying it was pitched at a very

high level. She said, in the last paragraph:

The broadcast has to be found to be not just

insulting, but to be likely to cause people to

hate a particular group of people because of

their nationality, race, ethnicity, etcetera

or be of such an order of vilification that it

really is gratuitous and without any context.

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I do not want to read it all, it will take too much

time, Your Honours. Referring to Mr Laws specifically,

at page 10,Miss Paramore said:

In the case of John L~ws he did 10 days of
- 10 consecutive days of editorialised material
about Aboriginals, various schemes to assist

Aboriginals and took calls as a result of that

editorialisation where he consistently referred

to Aboriginal people in derogacory terms and

consistently implied things that suggested

that they were getting preferential treatment

and that they were no-hopers and that if they

80t up off their backsides they could fix

everything up for themselves anyway.

The language he used, his response to people

with a different point of view that rang to

try and explain that what he was saying about

some of these schemes was not really accurate was bullying and overbearing and they did not get a fair go, whereas people who rang to

reinforce the sorts of things that he was

putting in his editorial got open slather and

elicited further cormnents from him which were

derogatory.

Then there were references to Mr Casey, on page 11. Naturally

I will not trouble with those.	Then Miss Singleton
said, at line 25 on page 11:

Janet Paramore, thanks very much. I am grateful

to you for putting it in a context at least in a

way the Australian Broadcasting Tribunal sees it.

I do not think I need read any more, Your Honours.

Following that broadcast, Your Honours, on 25 May 1988

defamation based on the content of the interview.

the appellant, Laws, issued a statement of claim out of for

the Supreme Court of New South Wales joining the

The defamatory imputations pleaded as arising from the

broadcast are set out in paragraph 5 of the statement

of claim and are five in number. That statement of

claim starts at page 66, Your Honours. There are

various prefatory paragraphs: 1, 2, 3 and 4. Paragraph

3 was admitted - that is the employment of Miss Paramore

by the Tribunal. Paragraph 4 was not admitted.

Paragraph 5 sets out the imputations, five in number.

I will not read them, Your Honours, to save time, but
I should say that imputations (b), (d) and (e) were

the subject of a plea of justification and contextual

justification, to which I shall come shortly.

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MR HUGHES (continuing):	Then they pleaded.	I should say

that the Australian Government Solicitor entered

4n appearance for both defendants which,if any reinforcement were needed of the inference that

Miss Paramore was saying what she said with the

authority of the Tribunal, does so, they have

pleaded defences of statutory and connnon law qualified privileze and then, coming to the
particular defences, they start at page 73 of the
appeal book and the defences of justification are

pleaded as is usual in a variety of ways to catch

all the possibly available statutory provisions
under section 16 of the DEFAMATION ACT, truth and

public; substantial truth on a matter of public

interest; substantial truth plus qualified

priviledge. And then, on page 74, the paragraph 7

of the defence at the bottom of the page, sets out

the contextual imputation that the Tribunal and

Miss Paramore have pleaded and the contextual

imputation is that the plaintiff conducted a series

of radio progrannnes that were designed to lower the

connnunity's views of Aboriginal people.

Now, I should say this, if I may. Your Honours,

the Full Court implieilly accepted the proposition

that these defences of justification and contextual

justification amounted to an assertion by the

Tribunal and Hiss Paramore of the substantial truth of the alleged fact that Mr Laws had contravened the standard which was the subject of the two decisions

under attack.

McHUGH J:  I have some trouble with that, Mr Hughes, because

the one imputation which goes directly to the issue

before the Tribunal is 5(c) and that is that HTue

plaintiff was a person who used,a;:id was prepared to

use, disgusti.i.-i61y. racist derogatory words" et cetera. There

is no clear justification to that imputation is there?

MR HUGHES:	No, Your Honour.
McHUGH J: And the plea of contextual imputation is was that

it was true that the plaintiff conducted a series

of progrannnes that were designed to lower the

connnunity's view of Aboriginal people, but is that

the same as the issue raised under Standard RPS 3?

MR HUGHES:  It is substantially the same, Your Honour. word "vilify" used in the second arm of the standard, The

means the same.	Now there is another reason, if I
may	so suggest - - -

McHUGH J:  But it goes further though, because the standard

requires that you gratuitously vilify. Weli if you

have got some reason for vilifying - - -

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MR HUGHES: Gratuitously means without adequate reason.

McHUGH J: _ Without adequate reason.

MR HUGHES:	Yes, but there is another reason which one would add to the fact of the defences of justification
and it is a reason that arises out of the termsof
the defences. That they plead truth, substantial
truth and qualified priviledge.  Now, as Your Honour
would know, in considering either a statutory
defence of qualified priviledge or a common law
defence of qualified priviledge, if the latter could
conceivably be available, it would be necessary for
the Tribunal to prove belief in the substance of
what Miss Paramore said and Miss Paramore said that
Mr Laws had breached the standard.

McHUGH J: Well,I am not sure that she said that he breached

the standard. If you look at page 10, is she really

saying any more than as to what was found?

(Continued on page 13)

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MR HUGHES:  Yes, and my submission is that she says that

what was found, in substance, was that there was a

copsistent breach of the standard.

McHUGH J: Well, she said he consistently referred to Aboriginal

people in derogatory terms.

MR HUGHES:  Yes, and she said that,Your Honour, if I may say

so,in the context of explaining what the standard

was. I think I have read that part.

BRENNAN J: Whose belief is relevant for the purposes of the

defence of qualified privilege?

MR HUGHES:  The belief of the individual members of the Tribunal

as well as of the broadcaster.

BRENNAN J:	Why?
MR HUGHES:	Because if she was the agent of the Tribunal to say

what she could say, Your Honour, she was saying that on their behalf so they would have to have a belief,

for the purposes of their defences - prove a

belief.

BRENNAN J: Well, it is not a question of vicarious liability

for what she said, it is a question of personal

responsibility?

MR HUGHES:  Yes, because she said what she said specifically

on behalf of the Tribunal.

BRENNAN J:  I suppose this is not the place to debate that.

MR HUGHES: I beg Your Honour's pardon?

BRENNAN J: Perhaps this is not the place to debate that problem,

but it does not appear to me innnediately obvious that

that is so.

MR HUGHES: But, Your Honour, in New South Wales save

exceptional circumstances,which this case would not

be, a defendant who pleads that his publication
was reasonable within the meaning of section 22 of

the DEFAMATION ACT has to establish that he believed

in what he said.

McHUGH J:  We dismissed a special leave application when somebody

tried to run that point.SERGI, I think was the name of it.

MR HUGHES: Your Honour, that was a case I was once in, a

trial, BARBARO.

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McHUGH J: Barbaro.

MR HUGHES:- But that was the one exceptional case. It is the

only defence under section 22, Your Honour, that

has ever prevailed in New South Wales since 1974
and it prevailed because the Court of Appeal took

into account the special circumstance that

Mr Ba~baro described himself as the person who had

been guilty of the criminal conduct. He had

described himself as such so that it was therefore
reasonable for the broadcaster to accept his own

description of himself. It is quite remarkable,

I think I am right in saying - my friend will

correct me - that in the 16 years that

section 22 has been on the statute book that is the

only time that a section 22 defence -

Morgan under appeal, I am sorry.	MORGAN V JOHN
FAIRFAX	But I did not bring the authorities -

McHUGH J: No, I do not think we need to get into this area.

MR HUGHES: Your Honour tempted me. I will no longer yield

to the temptation, Your Honour. Those defences

were put on the file on 3 August 1988, two days

before Mr Justice Morling delivered his judgment

and in paragraph 14 we say that the effect of

filing those defences, and indeed we would add

maintaining them on the file as they still do,

is that the Tribunal as a corporate body has

asserted and continues to assert, in substance,

the appellant's guilt and its belief in the appellant's guilt of having contravened the standard.

(Continued on page 15)

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MR HUGHES (continuing): It must be inferred, we submit,

that the Tribunal would not make such serious

assertions unless it not only believed them to

oe true but was also confident of being able to
prove them true. Further, the Tribunal's -

and I will not say any more about the privilege

defences.

There is just one other point that I would

seek to make before I pass from the actual terms

or the substantial terms of the defences,

Your Honours. If one compares the imputations

that have been justified with the text of the

Tribunal's decision one will see that the imputation

is that they have justified, including the
contextual imputation in paragraph 7, reflect

statements specifically made in the Tribunal's

reasons of 24 November for having found Mr Laws

guilty of a breach of the standard.

So we say - paragraph 15 of our outline -

that the Tribunal has put itself into a position

of irreconcilable conflict between interest and

duty. It has an interest in the successful
maintenance of its several defences to the defamation

proceedings and yet it has a duty, if it is proceed

further in the Laws matter to give him a

dispassionate hearing uninfluenced from preconceived
views. It simply cannot do so, at least while
the defamation proceedings are not finally

determine~ and we would venture to suggest not

at all.

Any member of the Tribunal who might be selected

to investigate the Laws matter further will know

that his acquittal in any inquiry will have a totally

adverse impact on the defences of justification

and contextual justification and qualified privilege.

McHUGH J: Mr Hughes, what is the position in relation to

the contempt?

(Continued on page 16)

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McHUGH J (continuing):  I suppose because the Tribunal would be

acting under statute it would not be a contempt of the

Supreme Court of New South Wales to hear the same

tssues, would it?

MR HUGHES: Probably not, Your Honour, but it creates a very

delicate and unacceptable situation if one is paying

regard, as I suggest ought to be done, to the balance
of justice in determining what should happen in this

case.

DEANE J:	It could well be an interference with the exercise of the judicial power of the Commonwealth which the State
Court is exercising.
MR HUGHES:	Yes, it is,because the plaintiff is suing a

Commonwealth officer. I am reminded that there was

a case, I think in this Court, arising out of

Mr John Winneke's Royal Commission into the Builders'

Labourers' Federation where, although on the facts,

as I recall, the finding was that there was no

contempt involved in the continuation of the inquiry;

the alleged contempt being continuing the inquiry

while criminal charges were pending against

Mr Gallagher. So, I gave too ready an ill-advised answer to Your Honour Justice McHugh. There could be a contempt.

BRENNAN J: That is not the proceeding which this appeal is

concerned with. You did not seek any injunction to

restrain the commission.

MR HUGHES:  No, Your Honour, I was merely answering the question.

BRENNAN J: Yes.

MR HUGHES:  Now, we say it would be contrary to natural justice

or procedural fairness to allow a fresh investigation
to start from scratch. Perhaps to develop that

point a little, I should refer Your Honours now to

certain other provisions of the BROADCASTING ACT.

(Continued on page 17)

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MR HUGHES (continuing):  I do not think I need refer Your Honours

to the provisions which constitute the that is section 7(1). Section 8 defines the maximum

composition of the Tribunal:

A Chairman, a Vice-Chairman and at least

one other member but not more than 6 other

members.

Section 11; the Chairman of the Tribunal may

notify the minister that the chairman considers that

the Tribunal should be assisted by an associate

member in relation to a particular inquiry, including

an inquiry that has already commenced, as so forth.

Section 15B:

The Tribunal shall hold such meetings as are necessary for the performance of its functions.

The Chairman or Vice-Chairman of the Tribunal

may convene a meeting.
At a meeting a quorum is constituted by a majority

of the members for the time being holding office.

The Chairman shall preside at all meetings at

which he is present -

otherwise the Vice-Chairman, and if not, the next senior

member. An associate member shall not be elected to

preside if a full member is present: that is section 6A.

(7) Questions arising at a meeting shall be

determined by a majority of the votes of the

members present and voting.

(8) The person presiding at a meeting has a

deliberative vote and, in the event of an equality

of votes, also has a casting vote.

Then, just pausing there, Your Honours, if, as the	Full Court said, the appropriate course is for the
Tribunal to consider starting from scratch, that means
that the Tribunal, consistently with what the Full Federal the appeal from Mr Justice Morling on the meaning of the
word "proposes" to exercise one of its powers - the

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Tribunal will have to consider administratively

whether the exercise of its powers to impose

sanctions, if there is a breach by Mr Laws of

Radio Programme Standard 3, ought to be considered, whether it is a possible approach.

If we are right in our argument, the whole

Tribunal, even as presently constituted, is precluded

on grounds of actual bias in the case of some

members and constructive bias in the case of others,

from giving detached and dispassionate consideration

to any such proposition or possible proposition.

Section 15C - - -

DEANE J: Sections 11 and 12 would be relevant to all this,

would they not, Mr Hughes?

MR HUGHES:	The associate member?
DEANE J:	And the acting associate member?
MR HUGHES:	Yes, Your Honour.
DEANE J:	For a particular inquiry?

MR HUGHES:  Yes, Your Honour. Save that there is a further

difficulty. The appointment of an associate member

can only come on the recommendation of the chairman

and the chairman was, in this case, the chairman

of the Tribunal - a participant in each of the

two decisions under challenge.

BRENNAN J:	What is the significance of that?
MR HUGHES:	The significance of that is that the chairman,

we say, having regard to her participation in the

two earlier decisions, 24 and 27 November, is -

and having regard to her inferred - clearly to be

inferred authorization of the broadcast and her

clearly to be inferred endorsement of the defences,

can hardly be said to be able to bring an impartial
and detached mind to the question whether there

should be a recommendation to the government to appoint an associate member for the purposes of conducting a particular inquiry.

BRENNAN J:	Does that mean that if she did recommend the appointment of associate members that decision
would be void or voidable?

MR HUGHES: Voidable, yes, exactly. That is our submission.

BRENNAN J: That seems an extraordinary result, does it not?

That means, by analogy, that if a Chief Justice

C2Tl 6/1 /ND

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were to ask for the Full Court to be constituted in

such a way as to exclude himself from its membership

because he had an interest in the litigation that

the Full Court would be wrongly constituted?

MR HUGHES:  No, Your Honour. The problem here relates

to the nature of the disqualification which is

bias because of the expression of adverse view

previously on - - -

McHUGH J: Bias, that would not be an administrative act,

would it? Has bias got anything to do with an

administrative act?

MR HUGHES:  Yes, it would have. But the point that I have

just made is not essential to the fabric of my

argument - let me say that at once - and perhaps

I need not do anything more than flag it as a possible

difficulty. Certainly, to swing that factor another

way which is possibly in my favour, if I may say

this to Your Honour Justice Brennan, if it is possible

for an associate member to be appointed ad hoc,

that rather disposes of any possible reliance on
the supposedprinciple of necessity if it applies
to statutory tribunals of this kind because there

is a way out. There is a way over the difficulty.

But it is not a way over the difficulty that enables

any of the present Tribunal to sit. There would

have to be a new face.

(Continued on page 20)

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MR HUGHES (continuing): In paragraph 16 we say that the

conflict to which the Tribunal has subjected itself

by its actions creates really a disqualifying dilemma

for all its members, regardless of the date of their

respective appointments. The relative principle is that

no one may be a judge in his own cause, or be both

accuser and judge in the same matter. This principle

applies to each of the persons who constitute and have

from time to time since. 24 November 1987 constituted

the Tribunal. In the absence of any evidence disclosing
that some members of the Tribunal either did not assent to,

or actively dissented from, the filing of the defences
to the claim for defamation, actual, or at the very

least, constructive bias must be imputed to each member

in office when -the defences were filed.

There may be a typographical error in the passage

I have just read, Your Honours. It reads, as originally

typed, in the sixth line, "to the claim for defamation,

or actual".	The word "or" should be transuosed so as to
appear after "actual".	~

McHUGH J:  Would you just explain to me the theory of this?

The Tribunal is a body corporate.

MR HUGHES:  Yes.

McHUGH J: Therefore it has a legal personality separate from

any of its members.

MR HUGHES:	Yes.
McHUGH J:	How does it come about that those members who

are not directly involved in this, those members other than Miss Paramore, become subject to disqualification for bias by reason of the Tribunal's defence, put on

by it as a body corporate, as a separate personality?

MR HUGHES:  Because they are the corporators and it - there

is an inglish case on this point. They are the

corporators, they are the mind and will of the

corporation. That must be so, with respect. The

Tribunal cannot put on a defence, which after all if

justification is raised is a fairly solemn act attended

with consequences if the defence is ill founded~ The

Tribunal cannot put on such a defence unless it decides

to do so, and that means unless its members decide to

do so.

McHUGH J: Well, a majority of its members. What about

members, for example, who did not attend the meeting

or who may have opposed the filing of the defence?

MR HUGHES: Well, Your Honour, the answer, if I may proffer

it, as our answer to that question, is that it was

open to the Tribunal, which appeared at all stages below

in a contesting role, to prove that some of its members
were free of the taint of actual or constructive bias

because they did not take part in any decision.

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MR HUGHES (continuing): In the absence of that evidence -

and this is a point that is referred to in the

Canadian version - in the absence of evidence

that was open to the Tribunal to give, the

only proper inference we venture to suggest, is that the making of the broadcast and the filing of the defences was the corporate act of the

whole Tribunal. If it was not the corporate act of

the whole Tribunal it was certainly the corporate

act of a majority of members of the Tribunal.

McHUGH J: Yes, I understand. So, it rests on inference in the

absence of - - -

MR HUGHES: Let us assume that there was only a majority that

decided to do all these things. It is perhaps a

somewhat strange view but let us assume that for the

purposes of argument. if I may. There is an English

case to which I shall ··come, HANNAM V BRADFORD , which

says that	even in that sort of situation where only
some members, a requisite	1naj ority, took part,

nevertheless, the others are tainted on the ground
of what has been described some times as
institutional bias and that is a species, we suggest,

of constructive bias.

Now, there was evidence before the Full Court -

I am just taking the history up to page 9 of our

outline - that since the defence was put on the file

two people had been appointed members.

(Continued on page 22)

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MR HUGHES (continuing): Those members, we say, are disqualified by

constructive bias. The appellant's case,

so-far as they are concerned and against all

the members on the ground of constructive bias

in so far as it rests against all the other

members than those two, on the ground of

constructive bias, because it also rests on

actual bias, is that a reasonable bystander knowing

all the relevant facts would apprehend that the

Tribunal's interest in the successful maintenance

of the defences to the defamation claim might

affect the judgment of any member called upon to

determine whether Mr laws had contravened the standard.

Given what is at stake for the Tribunal in the

defamation proceedings, it would be quite unrealistic

to suppose, in our submission, that any of its
members would now be able to approach the task of

adjudication with a mind altogether free of prejudice.

McHUGH J: But why is tha½ because the finding in one does not

influence the finding in the other, does it?

MR HUGHES:  No, the reason why, Your Honour, is that the Tribunal

has put on these defences, not only has it put them on

it is maintaining them and they have been maintained

since 3 August 1988, and any members appointed since

they were put on, arx:l: whlle those defences are being

maintained, as to any such new member it would be

inferred in the absence of evidence to the contrary

which could have been given if available, that thev

approve of what the Tribunal is doing.

MASON CJ: What could the members of the Tribunal have done in

response to this action for defamation so as to avoid

the dilemma you say has now arisen?

Mr HUGHES:  The answer we would proffer to that question,

Your Honour, is that as so often happens, or as not

infrequently happens in defamation actions in New

South Wales, defences of justification are put on

late by way of amendment after relevant facts which the defendant conceives to warrant a defence of justification,

Tl9	have come to his notice and it would have been perfectly open for the Tribunal- and indeed such an application would have been irresistable - for the Tribunal to have said, when confronted with the statement of claim, "Well look, there are certain defences" - perhaps of a formal
nature or, indeed, a particular defence that was filed
and that I have not mentioned, namely, that the
broadcast was a fair extract of the Tribunal's decision
as published - "that could have been put on". And the
question of whether it would be appropriate to put on
defences such as justification and qualified privilege could have been left over until the outcome of any
properly constituted investigation and inquiry.

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MR HUGHES (continuing):  The later defences of justification,

in my experience, are permitted in proper

circumstances to be raised in the Supreme Court of

New South Wales. I was myself for a defendant last

year when just that was done. That is the answer

we would proffer.

BRENNAN J: And what would have been the defence which was

awaiting its embellishment by those defences?

MR HUGHES:  The defences of justification, Your Honour.

BRENNAN J: Whilst the document was awaiting embellishment, at

a later stage, what was the defence that should have

gone on?

MR HUGHES:  They could have denied the imputations - denied that

the article conveyed the imputations or not admitted

it and they could have pleaded the defence, I will go

to the particular page of the appeal book,if Your Honour

would like me to do, which raised the defence of

fair extract, a species of qualified privilege available

where defamatory matter is a fair extract of an official

record. I think I state it adequately for the present

purposes.

McHUGH J:  It would be hard to justify the statement under that

defence though,would it not?

MR HUGHES: Well, they have tried to, Your Honour. I do not, with

respect, seek to dissent from what Your Honour has

said but there it is.

BRENNAN J: A vigorous counsel for the plaintiff might have run

that one to ground pretty quickly, do you not think?

MR HUGHES:  But only at the trial,Your Honour.

BRENNAN J: The issues for: the trial being so limited, as they would be

on such a pleading perhaps it would not have taken long

to get to trial.

MR HUGHES: Unfortunately, Your Honour, in New South Wales

defamation actions, otherwise than in exceptional

circumstances of urgency, do take a long time to get

to trial. I do not wish to postulate an average

o~ mean time but it is a very substantial delay.

BRENNAN J: Is it your submission that a finding in favour of

the plaintiff in a defamation action would raise an

issue estopple which would bind the Tribunal in

the exercise of its disciplinary power?

C2T20/2/JL	23	7/2/90
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MR HUGHES:  Yes, because in determinig whether there has been a

contravention of the standard the Tribunal is bound

to-act judicially, albeit an administrative tribunal

and taxation boards of review have been held are
subject to the issue .estopple principle, in some

decisions in this Court many years ago. That would be

our primary answer but if we say even if that is not

correct the problem still remains.

McHUGH J:  I suppose the way you can put it, in any event, is

that even if it does not give rise to an issue

estopRle that for the Tribunal to find there was no

breach in its inquiry would totally destroy its

own defence in the action?

MR HUGHES:  Oh yes, indeed, its defence would really become

its defence of justification, and its defence of

qualified privilege would become a laughing stock.

McHUGH J: Almost by admission it is····· -

MR HUGHES:	Yes.
BRENNAN J:	If this be right,  how is it that the issue would

ever be determined judicially, without a pleading

of the kind that has been put on?

MR HUGHES:	They do not have to put it on Your Honour until after - - -
BRENNAN J:	Of course not, but if the question is a live one

who could ever determine it on your argument?

MR HUGHES:  The Tribunal could determine it unless issue

estopple arises after it is successful in the defamation

proceedings.

BRENNAN J: But how can it succeed in a defamation proceedings

without raising the defences which raise the same
issue? (Continued on page 25)

C2T20/3/JL	24	7/2/90
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MR HUGHES : I:ut, Your For.our, I an so sorz::,·, I ai::..

assuming for the purposes of argument that the Tribunal

had done what we say it could have done, which was to
ask for time before putting on a defence of justification

or alternatively, say, "These are the defences we wish

to put on for the time being; we may - not will - later
wish to amend our defences depending on the outcome of • • II

our inquiry.

BRENNAN J:	And then it proceeded to determine the matter on the inquiry.
MR HUGHES:	Yes.
BRENNAN J:	Would that in turn have raised an issue estoppel for the purposes of the judicial proceedings?
MR HUGHES:	It could well do, Your Honour, yes, would be my

answer. The difficulty is created, in this case, by

the unfortunate circumstance, and I wish to use the

most moderate language, that a: Tribunal. charged with

these statutory duties saw fit, while proceedings for

judicial review were pending, to send its senior officer over

to, in effect, prejudge the matter when its original

judgment had been ex parte, and by the further fact,

building on that essential fact that these defences

were put on, and as I said in answer to a question

that Your Honour Justice Gaudron put to me in the

special leave application, the Tribunal, on each of

those occasions. the broadcast and the putting on the

defences and maintaining them has chosen publicly to

assert Mr Laws'sguilt of contraventions when it had

never given him a hearing and if it gives him a further

hearing, its previous actions, as I have described them,

put it in a dilemma, an insoluble dilemma.

Now, Your Honours, it is well settled, and I do not

wish to labour the point, that disqualifying bias through

interest may be the product of pecuniary or some other

form of interest.

(Continued on page 26)

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MR HUGHES (continuing):  And there are numerous examples:

interest arising from a relationship of kindred, interest arising from ties of friendship between

the adjudicatory body and one of the parties.

We would say that the relationship between the

Tribunal and each of its members and between each

of its members inter se from time to time is

analogous. I am not going to do other than simply

note the case of BLUME V OSBORNE, that was a case

of friendship between a magistrate and a party,

and the various examples are discussed in

Professor de Smith's book, Judicial Review,

fourth edition, and in Flick's book on Natural

Justice, the second edition - I should have mentioned

the second edition there but I am not going to

read that to Your Honours or, indeed,

Professor de Smith. It would take up unnecessary

time.

We say that the cumulative effect of

Miss Paramore's radio interview and the filing

of the defences in the defamation proceedings must

necessarily have an effect or impact upon the

reasonable bystander. In paragraph (b) on page 11

we set out what I have already submitted.

May I come to the criticisms that we would

respectfully make of the reasons for judgment of

the Full Court. The court said it was unnecessary

to decide whether any of the various letters of

complaint received by the Tribunal concerning the

relevant broadcast amounted to a request within

the meaning of section 17C(l) to the Tribunal to

exercise any of its statutory powers and we said

that there had been no request for the exercise

by the Tribunal of its statutory powers so the

Tribunal was under no statutory duty, mandatory

duty, to hold an inquiry.

That question, which was argued below, had

not been the subject of any notice of contention

so I pass it by.

BRENNAN J: Mr Hughes, could I just take you back to the

end of your previous page, page 11 of your notes?

If the Tribunal adopted a course which you suggest
on that page, were to have found adversely to

Mr Laws, then I take it it follows from your previous

answer to a question that I asked that the Tribunal

would thereby have given itself a defence which
it could have put on and successfully and, indeed,

unavoidably succeeded upon.

C2T22/1 /ND	26	7/2/90
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MR HUGHES: It could have provided - yes, on

my previous answers.

BRENNAN J: -Then it does not matter whether one procedure or

the other was adopted. The Tribunal was inevitably

affected with an interest of a disqualifying nature.

MR HUGHES:	But the disqualification would have been, perhaps, of a minor nature in the event that Your Honour has
just postulated. It may be that if they had given
Mr Laws a fair hearing and due deliberation and found
him guilty, that might have been to their advantage.
It would probably - we do not suggest that that would
have inevitably been proof free of a possibility of challenge, but perhaps more possibly free than the Tribunal is in the situation that has arisen.

BRENNAN J: If not, then the effect of the defamation

proceedings is to sterilize the statutory power?

MR HUGHES:  No, Your Honour, it is not to sterilize the

statutory power. It is to prevent the abuse of

the statutory power, which is founded upon the

statutory assumption that the Tribunal will exercise

certain powers if, and only if, it is free of the

taint of bias. That does not sterilize the statutory

power. It puts a constraint upon its exercise when

the tribunal engages in certain conduct. The two

concepts are fundamentally different, and I have to go

to the cases briefly. It will be part of the fabric

of my submission on the cases that if the doctrine

of necessity which, if I may say so, with respect,

Your Honour Justice Brennan was really reaching towards

in the last question Your Honour put, applies to
statutory tribunals, applies otherwise than to courts
in the strict sense, then it applies not inflexibly as

an absolute rule, but as a rule which has to be applied

according to the circumstances of the case and upon a

consideration of where the balance of justice lies.

(Continued on page 28)

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1:1R HUGHES (continuing):  And there are statements in the cases

including, if I may say so with respect, statements

by Your Honour Justice Brennan in RADEER's case	to
that effect. Professor de Smith,in one striking

proposition in the pages to which we have referred in

our outline, says that"the rule of necessity ought not

to be applied when to do so would be an affront to

is sufficient to say it ought not to be applied where	justice." I do not want to use· such a strong term. It
it would, on balance, inflict injustice to do so.
Now the court reached the conclusion that it would be open to the Tribunal to consider its own proposal,in
effect, that is consider the possibility of whether
they ought to institute an investigation from scratch,
ab initio, because if the Tribunal decided that it ought further to persue the matter in relation to
Mr Laws, a decision to that effect would amount to a
proposal to exercise its statutory powers and they said that if there was such a proposal, then the Tribunal
would be bound to go ahead and inquire. Our respectful
submission in answer to that is that if the Tribunal,
as I ventured to suggest earlier, has disqualified itself by its previous actions, from being able to give
fair-minded consideration to such a proposal, it ought
to be restrained from going ahead.

McHUGH J: That would be a purely ministerial function would it

not? And-~ias is inapplicable to ministerial functions.

1:1R HUGHES:  Well we would submit that it ought to be in the

circumstances of this case where the ministerial

function is so intimately wrapped up with

McHUGH J:  I do not know where this leads to but,I mean,your

argument would operate at the next step.

1:1R HUGHES:	Yes, the argument would operate at the next step anyway, but we say that the mistake, with respect,
in that reasoning, is that it overlooks a principal
proposition upon which we found and founded below.
The Tribunal has disqualified itself by actual or constructive bias, depending upon which members you
are looking at, from formulating any such proposal or making any such decision; certainly a decision that
Mr Laws was guilty of a breach.  Now the next criticism
we make is that the court, with respect, did confuse
itself as to the substance and effect of the appellant's
submissions. At page 97 of the appeal book Their Honours
recorded a positive submission on behalf of the
appellant as to the existence of actual bias. That was our submission as to the members of the Tribunal who
influentially must have been taken to authorize the
broadcast and authorize the filing and maintenance of
the defences.  And then at another passage in
Their Honours reasons, page 115 of the appeal book, Their Honours referred to a supposed omission by

C2T24/l/CM	28	7/2/90
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counsel for the appellant to rely on actual bias

and confined.our argument about the effect of the
defence in the defamation proceedings is going only

-to the issue of constructive bias, thus their reasoning

really was based on a misconception which caused them
to overlook an important element in our argument.

The next criticism is this:, if, as the

Full Court accepted, a result adverse to the Tribunal
in the defamation proceedings, with its consequence
of a possible drain on the Tribunal's funds, might, to
quote Their Honours words, "occasion some regret to

members of the Tribunal", it is difficult, we say, to

see, how to the mind of a reasonable bystander, or of

Mr Laws, as a party, if he views it reasonably, the

prospect of such an adverse decision might not impair

the Tribunal's capacity for exercising impartial

judgment in an investigation and inquiry, if

subsequently carried out and in any finding

consequential thereon adverse to the appellant. The

court correctly assumed, in our respectful submission,

that members of the Tribunal, whenever appointed, would
hope for its success in the supreme court proceedings.

All we say is that the reasonable bystander would

recognize that such a hope might have an inevitable

corollory.

(Continued on page 30)

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MR HUGHES (continuing): In saying that it had not been suggested

that any member is personally involved in the

defamation proceedings, t~e Court overlooked the

fact that in the absence of contrary evidence

each member of the Tribunal in office at relevant

times must be taken to have authorized the filing

of the defences and that in the absence of contrary

evidence each member of the Tribunal in office

while the defences are maintained on the file

must be taken to assent to them. And this would

mean, we suggest, that the whole Tribunal, as at the present time, must be presumed to be biased.

'llleir lbnours, as I said earlier this morning,

dealt with the Tribunal's defences to the

defamation proceedings on the implicit footing that
they meant what we say they mean in terms of

asserting, in substance, the guilt of the alleged

conduct, the appellant's guilt of the alleged conduct,

the subject of their decision and reasons as are

recorded in the appeal book.

Their Honours dealt with the matter in this way.

Their Honours said those defences do not constitute

admissions.

McHUGH J: That is not the point.

MR HUGHES:  That is not the point for the reasons we have

endeavoured to give and in case it is of interest

to Your Honours, and it may be, a decision in the

Supreme Court of New South Wales, SINGLETON V

JOHN FAIRFAX to which we have given the reference,

contains an examination by the trial judge in that
case, Mr Justice Hunt, of the old proposition
exemplified by the 19th century and earlier cases
that pleadings do not amount to admissions; they

merely amount to a statement of the case of the

parties.	Of course, it is enough for our purposes
if they amount to an assertion.	We did not have
to say they were admissions but Mr Justice Hunt

in his reasoning in that case reached the conclusion

which we say is clearly correct on logical and

common sense grounds that a statement made in a

pleading, like any other statement, may be an

admission and there is no special rule - or there

should be no special rule - that exempts statements

in pleadings from that proposition, no exception in

the case of pleadings.

In examining the history of the matter, His Honour

pointed out that the old supposed rule exempting

pleadings from the character of admissions was founded

largely on 19th century and earlier chancery pleadings

when a whole series of allegations were made in a most

elaborate way in order to attract discovery. Probably

today they would be struck out as an abuse. That is

part of the history.

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MR HUGHES (continuing):  We did not need to attach to these

pleadings the character of admissions. It was

enough that they were assertions. Now, the next

point we deal with, at the bottom of page 15,

in confidently as we say they did, assuming that

all members of the Tribunal are aware of the

importance of approaching any inquiry with complete

integrity, the Full Court perhaps overlooked - we

say they did overlook - the very significant

actions of the Tribunal of which we complain. I will

say no more than that, it is set out in writing there.

Their Honours, at page 119 of the appeal book,

appeared to treat the question, which I described as
institutional bias, rather to be considered in

isolation from the defamation proceedings. All we

say is that the Tribunal, as a corporate institution

is committed to the success of its defences; every

member must know that a finding in favour of Laws,

if there be a further inquiry, would undermine its

prospects. Now, I come to the question of necessity

with which the Court dealt on a contingent basis,

Your Honours. We say, there are - or if there are

not, there ought to be - limits to the application

of the doctrine of necessity as a qualification upon

the principles of natural justice. One such

qualification is, or ought to be, that alleged
necessity will not justify an abrogation of those

principles when the result would reasonably be regarded

as a failure of justice and a negation of the

appearance of justice. Such would be the result,

we would submit, in the present case.

-·

Your Honou.-s, ·the doctrine of necessity and its

scope have been considered in only one decision in

this Court, as far as we are aware, and that is in

RAUBER's case. In DICKASON V EDWARDS, 10 CLR at

pages 258 and 259, Sir Isaac Isaacs referred to it

and dealt with it to some extent but,without being

under the necessity of considering its scope,

His Honour really did not do so. Now, unless

Your Honours wish me to I will not read pages 258

and 259. His Honour merely, with respect, recognized

the existence of the doctrine. It was a case in

which it was not necessary for its implications and

nuances to be fully considered because there the

Court was dealing with a domestic tribunal - a

non-statutory tribunal - and Their Honours held
the relevant rule as not requiring the chief

executive officer, who rejoiced in the title of

district chief ranger of the friendly society, to

take part in the investigation that led to the

plaintiff's allegations of denial of natural justice.

C2T26/l/DR	31	7/2/90
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The principle of necessity has been simply

adverted to without discussion in two other cases

in this Court:  WATSON; EX PARTE ARMSTRONG,

136 CLR 248, and there is a brief reference to the

existence of the necessity at page 263, no more,
and then the matter is, again, fleetingly adverted

to in, I think, LIVESEY's case. Now, it is perhaps

important to dwell briefly on the DI:MES litigation

in the 19th century - the two cases - involving

Mr Dimes and the Grand Junction Railway company. Your Honours, if I can recite briefly the

essential history of DIMES' cases:  Mr Dimes

successfully brought ejectment at law and obtained a

judgment for the recovery of possession of land

through which a canal had been constructed.

(Continued on page 33)

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MR HUGHES (continuing):  The Grand Junction Canal Company

brought proceedings in Chancery to restrain the

enforcement of the judgment at law. The proceedings

came before the vice-chancellor, whose decree

awarded an injunction to the canal company.

The was a rehearing at the instigation of

Mr Dimes of the proceedings for an injunction before

the Lord Chancellor, Lord Cottenham. He apparently

forgot that he was a shareholder to the tune of

several thousand pounds - a large sum in those days -

in the Canal Company. Mr Dimes found out and he then

said that the Lord Chancellor's interest vitiated that

judgment - the judgment of the Lord Chancellor, but

not exercising any free-standing jurisdiction of his

also vitiated, and this of course was critical, the
judgment of the vice-chancellor, because the

vice-chancellor, according to the argument presented for

own - that is the vice-chancellor not exercising any

free-standing jurisdiction of his own.

The matter is reported in 12 Beavan where the

proceedings came before Lord Langdale, Master of the

Rolls, and, I think 12 Beavan is volume 50, Your Honours,

of the English Reports, and in that series the report

begins at page 984, that is the proceeding before the

Master of the Rolls. Just going ahead a little bit,

before I refer to the particular passage that may be

thought by Your Honours to be relevant, the Master of

the Rolls thought that the problem could be solved

if the Lord Chancellor did no more than needed to be

done in order to get the case to the House of Lords

by way of appeal from the vice-chancellor, by the

Lord Chancellor simply enrolling the decree, a formal

administrative act, and Mr Dimes said, "No, that

could not be done", but that was done.

The Lord Chancellor, by enrolling the decree

of the vice-chancellor, enabled, as the House of Lords
subsequently held, an appeal to go direct from the

vice-chancellor to the House of Lords.

(Continued on page 34)

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MR HUGHES (continuing):  The enrolling of the decree by the

Lord Chancellor was not vitiated by his interest

and that conclusion was reached on the basis of
necessity to avoid an obvious injustice if the

enrolment had not been permitted.

At page 989, Lord Langdale - I am just trying

to pick up where - - -

BRENNAN J: If you give us the Beavan references as well,

Mr Hughes.

MR HUGHES:  Yes, Your Honour, 12 B 77, and 50 ER 989, if

Your Honours please. And the passage to which

I would invite Your Honours' attention is at

page 77 of Beavan, 989:

There is no question as to the validity

and importance of the general rule, that no
one is to be a Judge in his own cause, and

that no Judge ought, by himself or his deputy,

to hear and determine a cause, or make any
order, or do any judicial act, in a cause

in which he has a personal interest. This

is a fundamental and most important rule,

not to be departed from without necessity;

and in all cases where there are several courts

of concurrent jurisdiction, or one court

composed of several co-ordinate Judges, capable

of being held without the presence of any

of them who may be concerned in interest,

there is no difficulty in acting on the rule.

But, general and important as the rule

is, cases may arise, in which it must give

way to circumstances and to the necessity

of avoiding any denial of justice. In the

case between the parishes of GREAT CHARTE

V KENNINGTON -

2 Strange -	the Judges said, "the practice could not
overturn so fundamental a rule of justice,
as that a party interested could not be a Judge; and as to the case of corporations"
and no other Justices, which had been referred
to in the argument, they said, "that if it
appeared there were no other Justices, it
might be allowed to prevent a failure of justice."

A failure of justice was, therefore,

in this dictum, considered to be a greater

evil than a departure from that fundamental

rule, that a party interested cannot be a

Judge.

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And where the whole jurisdiction over

the mattes in question is vested in one Judge,

where there are no co-ordinate Judges, where

the subordinate Judges are, in substance and

effect, deputies, whose orders are not complete

or final, till they are formally sanctioned

and adopted by one Chief Judge, cases must

arise, in which it may be difficult, if not
impossible, to act in strict conformity with

the rule without denying justice.

I do not think I need read the rest of a very long

judgment but the emphasis is on allowing the

interested judge to act to avoid a denial of justice.

In the House of Lords, 3 HLC 759, 10 ER 301, what

happened was that the Lords sent for the judges

and asked them for their opinion, the common law

judges, and that appears at page 312 of the English

Reports, 785 and 786 of the House of Lords Cases

series, and there were two questions:

1.       "Were the orders of the Vice-Chancellor

void on account of the interest of the

Lord Chancellor?

2.       "Were the orders of the Lord Chancellor

void on account of his interest, and of his
having decided in his own cause?"

And then the judges answered the first question "No" because they held that the vice-chancellor

was not the deputy of the Lord Chancellor.	He
had his own indeoeuGent jurisdiction.

(Continued on page 36)

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MR HUGHES (continuing): But if Your Honours look at page

313 of the English Reports, and page 787, the judges
said, at the top of the page:

As to the second question, we are of opinion that the Vice-Chancellor ..... is not the mere

deputy of the Chancellor. We agree that the

interest of the .•... principal affects the deputy,

on the rule adopted in WOOD V CORPORATION OF

LONDON ..... and BROOKS V EARL OF RIVERS ..... ; but

we think that the Vice-Chancellor is not a deputy,
but has independent jurisdiction to make decrees,
subject to the power of the Chancellor, to be

reversed, discharged, or altered by the Chancellor.

And then down at the bottom of page 313 the Lord Chancellor

- I think it was Lord Truro - in the last paragraph on

the page said:

I understand the opinion of the Judges to be,

that the interest of the Lord Chancellor was such

as disqualified him from judging in the cause;

and I must therefore infer that, in their opinion,

there was no such absolute necessity for his
adjudication as, upon the ground set forth in some

of the cases, might be deemed to render his decision

effectual. As I entirely concur in the opinion of

the learned Judges on the second point; namely,

that the decision of the Vice-Chancellor cannot be
affected by any interest existing in the

Lord Chancellor, although the latter acted in the matter; and as I think that the reversal of his decree

cannot affect that of the Vice-Chancellor, which

may stand alone, I propose that, without at this
moment affirming or disaffirming any part of the

proceedings of the Court below, on the ground stated

in the valuable opinion we have just received,

your Lordships should proceed to hear the decree of

the Vice-Chancellor discussed upon the merits.

Now, the discussion about the dichotomy between

deputed jurisdiction and independent jurisdiction by the

Lords in DIMES case has this effect, in our respectful

submission, on the present case. The chairman of the

Tribunal can constitute a division of the Tribunal for the purposes of certain inquiries, including, if it be proper to do so, or to hold one, an inquiry into the

question of whether there has been a breach of the

relevant programme standards by any broadcaster. That

appears from section lSC, Your Honours, subsection (1):

The Chairman of the Tribunal may, for the

purposes of an inquiry, constitute a Division of
the Tribunal.

Subject to subsection (l)(a), the division shall consist of:

a member or members (who may be or include the

Chairman) designated by the Chairman; and

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(b) the associate member or associate members

(if any) appointed for those purposes -

for the purposes of that particular inquiry.

(c) an associate member or associate members

(if any) designated by the Chairman.

There~ a provision about inquiries into renewal or suspension of licences. It does not matter; it is not

relevant here. Subsection (lB), Your Honours, says:

Subject to the operation of sub-section (11),

a Division of the Tribunal constituted under

sub-section (1) shall, for the purposes of
holding the inquiry in relation to which it was

constituted and for the purposes of making decisions,

recommendations and reports on the matter the subject

of the inquiry, be deemed to be the Tribunal.

Subsection (11) has no relevance to the present question.

The effect of subsection (lB), in our submission to

Your Honours, is that a division of the Tribunal would

be exercising a deputed jurisdiction, deputed by the

chairman under the Act. Its decision would be deemed

to be the decision of the Tribunal, and if we are right

in our arguments about bias it would therefore be deemed

to be the decision of an actually or constructively

biased Tribunal. So the discussion about the significance

of deputed jurisdiction as opposed to freestanding

jurisdiction is significant for the purposes of this case,

we would put.

(Continued on page 38)

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MR HUGHES (continuing):  I can pass you now from DIMES and

go to the very important case of RAUBER,

~7 ALJR 376. Your Honours, this was a case -

and I will try to deal with it without reading large

slabs from it - in which the Builders Registration

Board of Queensland had two statutory functions

to perform: first to administer an insurance scheme

under which payments could be made in proper cases

to building owners whose building work had been
done by builders in breach of warranty, in breach

of contract;, the other statutory function was a

disciplinary one.

Now, what happened, shearing away_ some details

which were important in the judgment of

Mr Justice Deane - - -

DEANE J:	Can I take you back for a moment?
MR HUGHES:	Yes, Your Honour.

DEANE J: Section lSC(lA) and (lB), do you read that as

precluding the Tribunal being constituted only

by associate members?

MR HUGHES:	Yes, Your Honour, because if the - - -
DEANE J:	The Chief Justice has just shown me another section which - - -

MASON CJ: It is the end of this subsection (lA).

MR HUGHES:	Yes, lSC(lA).
MASON CJ:	But does that not imply that under (1) where

it is not (lA), you could have a division which

consists of associate members?

MR HUGHES:	Yes, Your Honour, if it is not caught by (lA) you could have a division consisting of associate
members but it would be exercising a deputed
jurisdiction and if the reasoning in DIMES is
right, even the associate members would be caught.

MASON CJ: Yes. I follow that submission but - - -

DEANE J: Except (lA) may be directed primarily to the

three persons. As a matter of language, one requires

at least one permanent member.

MR HUGHES:	Yes.
DEANE J:	I query whether (lA) - - -

MR HUGHES: Enlarges the possibility.

DEANE J:  No, it means that it is not to be read that way apart
from those two types of -

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MR HUGHES:  Yes, inquiry.

DEANE J: Inquiry. It may not be relevant but there is one

scenario where it could become relevant.

MR HUGHES:  Yes. I think we would have to concede, just as

I read it at the moment Your Honours - - -

DEANE J:	It may be best that you ..... when you are not on your feet and you can decide what .....
MR HUGHES:	I think so, if I may take that opportunity.

Coming back, if I may,to RAUBER - - -

McHUGH J: When you have a look at that section you might look

at (lB) too, so far as your argument,lSC(lB),

because it says that:

for the purposes of holding the inquiry .....

be deemed to be the Tribunal.

MR HUGHES:  Yes. I have found on that. Because there are

various types of deeming provisions as cases in this

Court have exemplified or demonstrated. One sort of

deeming provision is simply one which says that

something is which in fact is. Another sort of

deeming provision is one which says that something is

which in fact it is not but is made to be by force of the statute. Whichever type of deeming provision

this is, the fact is that the statute says that

any division of the Tribunal constituted for the purposes of an inquiry gives a decision which is

deemed to be the decision of the Tribunal.

(Continued on page 40)

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J>A",ASON CJ:  You are using the word " deputed'' in the sense

of delegated, are you?

MR HUGHES:  Yes, Your Honour. As it was put on behalf of

Mr Dimes in the CANAL case. To wipe the slate

clean and leave him in possession of his common law

judgment he had to get the vice-chancellor's decree

set on - - -

MASON CJ: Yes.

MR HUGHES:  I think I had said that in ~.AII'"&J>. the Board, the

Tribunal had two statutory functions and in the particular case it exercised its insurance function

by paying money to a complaining building owner on

the ground that the builder had been guilty of

breach of warranty in carrying out his contractual

engagements to the building owner. Then the Tribunal

proceeded to exercise its other statutory function,

which was disciplinary,and it was put and this was

accepted in the Full Court of the Supreme Court of

Queensland that 'i..y t.."i-ie way it treated the building owner,

without hearing the builder when it decided to pay

moneys to the building owner, it had denied natural

justice and if I may say so, with respect, there was

a considerable diversity of approach in this Court to

the question of whether there was the denial of

justice for which judicial review would lie.

Mr Justice Murphy took the view that on theconstruction

of the statute two separate, albeit to some extent
conflictine functions or functions capable of leading
to a conflict, were given to the Board and he said if
the statute gave those two functions there was no

relevent or"remediable lack of due process", the

phrase His Honour used, if the Tribunal, having found

there had been a breach of warranty, then proceeded to

exercise its disciplinary powers. Justice Wilson

and Justice Dawson took a different view. Their Honours,

on the construction of the statute, concluded that r~e

two questions or two functions .ere so clearly different,involv:l

different issues, that there was no collision or conflict

of procedual fairness by the course that was in fact	such as would attract the operation of the principle	taken, which was that they proceeded to exercise their
disciplinary function after having found against the
builder, in an inquiry to which he was not a party, that he had been in breach of his contract to the
building owner. That was Their Honours approach. It was
an approach based simply upon a -p.a,rticular-construction
of the statute. ·

Your Honour Justice Brennan at pages 383 onwards

through to page 385 adopted this approach, and I hope

Your Honour Justice Brennan will pardon me if I

endeavour to describe it shortly so as to avoid the

necessity of too much reading. Your Honour concluded

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that a fair-minded bystander would apprehend_

and in those days the relevent word was'suspect' -

~easonably suspect or apprehend that the Tribunal,

because of its decision,wearing its insurance hat,

approached the disciplinary question with other than

an unclouded mind. Your Honour saw that as the

appropriate conclusion having regard to the substance

of the matter. There is a passage which exemplifies

that approach at page 384 at the bottom in line G.

(Continued on page 42)

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1:-IR HUGHES (continuing):  Your Honour then, at page 385, just

below line Fin the first column, said this:

The rules of natural justice cannot be

invoked to invalidate the performance by

the Board of one of its functions merely

because -

and, if I may, I would endeavour to emphasize the

word "merely" -

in the earlier performance of another of its

functions, the Board formed a view upon a

question which was material to its decision in

both cases. Those rules canno.t be invoked to

frustrate the intended operation of the Act.

The rules of natural justice, implied by the

common law to govern the exercise of

statutory powers, may be excluded by the

statutory provisions which create the power

or affect its exercise; see SALEMI -

and -

FAI INSURANCES. Or, to put the proposition

in another way, where the legislature

intends a power to be exercised in

particular circumstances the common law does not

imply a rule of natural justice which would

prevent an exercise of the power in those

circumstances.

The common law allows an exception to the

disqualifying effect of bias, whether arising

from an earlier prejudgment of a material

question, from interest, or from some other

cause where the exception is necessary to allow

the functioning of the sole tribunal with power

to act.

Your Honour cited the KENNINGTON case and DIMES,

THE JUDGES V ATTORNEY-GENERAL FOR SASKATCHEWAN.
May I make a passing reference to that?	I have
looked at that case.	We have not put it on our list

of authorities because that was a case in which the

reference to the whole court, the Supreme Court of

Saskatchewan, came from the lieutenant-governor
under one of these statutory provisions that enabled

the lieutenant-governor to put a moot question to the court and it involved their rights as against the taxation authorities - the fiscus - and the

Privy Council, in passing, merely said as a matter

of necessity, of course, they had to do so.	The
matter was not argued. That, of course, was a court.

C2T32/l/DR	42	7/2/90
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Then, Your Honour, I will not, if I may,

without discourtesy to Your Honour Justice Brennan,

read the whole of that passage down the right-hand

column of page 385. I shall go to page 386 where

Your Honour said, in the second paragraph:

But the operation of the rule is limited to what

is necessary to prevent a failure of justice or

the frustration of a statutory provision.

The Act could be of no validity to the proceedings

of the Board if its bias "exceeded all that

Parliament intended to allow".

And Your Honour cited, with evident approval,

supporting that approach, a decision of the Full Court of the Supreme Court of South Australia in THE OPTICAL

BOARD case; EX PARTE QURBAN.	That is on our list of
authorities and we rely on it.	Then Your Honour went
on to say:

Where the reasonable suspicion of bias on the

part of the members of a statutory disciplinary

tribunal arises from the mere performance by
them of other functions, cast upon the tribunal

by statute, they are not disqualified from

participating in the performance of the tribunal's
disciplinary function; but if the reasonable
suspicion arises from other causes, the statutory

imposition of the other function furnishes no

exemption from disqualification.

Our point is simply this that, in this case,

if there is, as we submit, a disqualification it

does not arise from the necessary performance by the

Broadcasting Tribunal of its statutory functions.

MASON CJ: What does it arise from? The interview with

Miss Paramore and the defamation proceedings that

arose out of it?

MR HUGHES:  Yes, Your Honour.

MASON CJ:  What if Miss Paramore had given, as it were, an

entirely accurate account of the decision of the

Tribunal and your client had commenced proceedings

for defamation?

MR HUGHES: 

If she had given an entirely accurate account of

the proceedings of the Tribunal and we had commenced -
the matter complained of would still have been
actionable because the proceedings, in relation to

which she gave an entirely accurate account, were

no proceedings at all or proceedings which were

vitiated, or open to vitiation. It would not make

any difference, in our respectful submission, to our

point.

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MR HUGHES (continuing):  Now, we say that on Your Honour

Justice Brennan's approach, there is no answer, if

I may put it that way, to our claim that the Tribunal
is-henceforth disqualified, because what they did
was not necessarily done in the performance of their
statutory functions. - quite unlike RAUBER's case.

Coming to Your Honour Justice Deane's judgment, Your Honour adverted to various features of the

Board's conduct in its treatment of the insurance

claim, which Your Honour found unsatisfactory, such
as the fact that the Board had not asked the builder

for his views about the quality of his work before

deciding to pay insurance moneys and there were other

features and Your Honour will acquit me of disrespect
if I do not read the detail of the facts- they are

to be found in Your Honour's reasons, but at page 392

Your Honour said something - at the top of the left-hand

column - Your Honour said something that encouraged me

to point out that in this case no evidence had been

called for the purpose of establishing that there

were some members of the Tribunal who, for one reason

or another, because they had not considered the

matter perhaps at all, were not disqualified.

Your Honour said:

No evidence at all was called on behalf

of the Board to rebut or modify the clear inference,
to be drawn from the above and other letters

in evidence, that the Board was both identifying

with the complainant in the disciplinary

proceedings against Mr Rauber and that discussions

or communications about those proceedings, from

which Mr Rauber was excluded, were taking place

between the complainant and the Board. It is difficult to envisage that any such evidence,

unless it were to the effect that the complainant

Registrar was acting without the Board's authority

when he purported to speak on its behalf, could

avoid the conclusion that the conduct of the

Board was such as to lead to an appearance of bias.

And then, at the bottom of that column Your Honour

considered a point which had been raised and was dealt with by other Justices who decided the case concerning the construction of section 15(3) of the Act, and

together with other members of the Court came to the

conclusion that that section would not permit, on its

true construction the appointment of a substitute,
to make up a ..... Board. And then Your Honour

made this observation, at the top of the right-hand

column:

It may be that the rule of necessity, which

permits a member of a court, although to some

degree interested, to sit on a case where no

disinterested judge is available and where

the rights of the parties require that the case

C2T33/l/FK	44	7/2/90
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be tried, is applicable to statutory
boards and bodies which are required to observe

the principles of natural justice (see

DICKASON ..... Davis Administrative Law Treatise .....

de Smith -

an article by a Mr Tracey - that is in Public Law - I

looked at an article in the Australian Law Jourr:al

by the same author and we did not put it on our list

because it did not seem to say anything relevant.

Then Your Honour went on to say:

Such a rule may, in the present case, be

applicable to reinforce the plain implication from
the provisions of the Act that the rules of natural

justice are excluded to the extent that they would

have the effect that the performance by the Board
of one function would disqualify it from

performing another function which the Act entrusts to it. It would not however, in

disciplinary proceedings in which a man's right

to earn his livelihood is involved, operate

either to preclude the need to observe rules of

natural justice which the Act plainly envisages

will bind the Board or to avoid the consequences

of a failure to observe those rules.

(Continued on page 46)

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MR HUGHES (continuing):

In that regard, it is relevant to note that neither the Scarletts nor any one else has a private right to have Mr Rauber's

name removed from the Register of Builders -

and Your Honour cited QURBAN's case -

Nor is the case one in which Mr Rauber's rights could be adequately protected by an order

requiring that the Board desist from future

identification and private communication with

the complainant. Compliance by the Board

with such an order would not remove the

apprehension of bias which has resulted from

its previous conduct.

We would rely, with respect, upon that reasoning,

the reasoning of both Your Honour Justice Brennan

and Your Honour Justice Deane.

McHUGH J:  But assume you have made good your case about

bias, why should not the most relief you can obtain

be that the Tribunal be prohibited from holding

an inquiry with any person who was a member of
the board as at the date of the filing of the defence

in the defamation?

MR HUGHES:  We say we are at least entitled to that. We

say we are entitled to more, without being too
greedy, because the members of the Tribunal, albeit

appointed after the filing of the defence, must

be presumed - ought to be presumed, in the absence

of evidence to the contrary, to be assenting to

that defence. It could have been easily proved

if they were not and I come now to the question,

covered by decision of the Court of Appeal

in England, of institutional bias and also covered

by authority in the United States.	The English
case - - -

BRENNAN J:  Mr Hughes, before you come to that, I perhaps

should say that for:my part I am still somewhat

puzzled by the notion of the Tribunal!s defence
to a pleading which alleges publication by a servant

and the nature of the liability which the Tribunal

has. And so that you will not be under any

misunderstanding in your argument ,. I will jost put the point that is troubling me. It seems to

me that where you have a tribunal which is

incorporated, the duty of the members of the tribunal

is, of course, in one sense, to act in the best

interests of the corporation and, in another, to

perform such other statutory functions as are cast

upon them.

MR HUGHES:  Yes.

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BRENNAN J (continuing): It is conceivable that there may be

some conflict between the two kinds of duties that

they have of the sort that was discussed by Justice Deane

and myself in RAUBER's case. But here, where you are relying upon the putting on of a- defence in a defamation action by a ~tribunal, which is being sued in its corporate

capacity, the question seems to me to be really whether

or not the corporators, the members of the Tribunal

at the time, were doing anything else than putting on

a defence which was in the best interests of the

Tribunal as a corporation. If the corporation's

liability were simply that of the vicarious liability

for the publication of defamatory matter by its servant,
then it does not seem to me that there is any question
of necessary inference of bias to be drawn against the

members who so authorized the defence to be put on or

who maintained it after it has been put on.

MR HUGHES:	Your Honour; there does not have to be a necessary inference of bias with respect, one should be dealing
with  probabilities.
BRENNAN J: Is putting	here, as I understand it, the reasonable

apprehension of bias ?

MR HUGHES:  Yes, yes,or actual bias. Now the Tribunal and

Miss Paramore were both served because they, each of

them, had published the article. The inference arising

from the fact that she was a senior officer of the
Tribunal and that she purported as the transcript shows
to speak for the Tribunal and present the Tribunal's
point of view the way the Tribunal sees things, is
that, in the absence of evidence to the contrary, she
was authorized by the Tribunal to say what she did say.
So it is not a case of mere vicarious liability because
if the inference is that she was expressly authorized

to say what she did say it is not a case where an employer

is liable for the act of the servant - - -

BRENNAN J: Is that how the pleading reads, the statement of

claim?

MR HUGHES:	I think so, Your Honour.
BRENNAN J:	I thought it was vicarious liability, perhaps I am

wrong.

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MR HUGHES:  Paragraph 4, your Honour:

On 29 April 1988 the Defendants published.

We have not limited our claim to vicarious liability.

McHUGH J:  I must say - had you finished answering

Mr Justice Brennan?

MR HUGHES:  I answered, I think, His Honour's question.

I rely on paragraph 4, Your Honour.

BRENNAN J:	Yes.
McHUGH J:	I do not understand why you place emphasis on

the question as to whether the Tribunal authorised

Miss Paramore to make this statement. Your case

depends in the end, in any event, does it not, on the

fact that the Tribunal has put on a defence asserting

the truth of the imputations?

MR HUGHES:  Yes. I rely upon both elements in the situation.

I do not want to mislead Your Honour.	I rely on both,
individually or cumulatively.

McHUGH J:	Yes.
MR HUGHES:	And it is not a case in which we have said merely

that the Tribunal published because its servant, without

express authority but acting in the apparent course of

her employment, said these things.	We have said they
both published.	And I do not want to go over that ground

again, because it would be tedious.

McHUGH J:  But even if you are wrong on that point, it seems

to me that the critical thing is the defence, is it not?

MR HUGHES:  Yes, it is. If I am wrong on that, the critical

thing is the defence, filing and maintaining it.

BRENNAN J: Assuming that the defence then means that the

Tribunal has the belief itself?

MR HUGHES:  Yes. The belief itself that,notwithstanding the

application for judicial review, Mr Laws had done

certain things as set out in its report of 24 November

and in its decision of that date, which amounted to a

breach of the standard. That, we submit, is inescapable

when one puts together - and it would be tedious for me

to do so but I shall do so if necessary - the reasons

for decision with the terms of the broadcast.

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MR HUGHES (continuing):  I think I have got a piece of paper

that enables me to do so quickly but may I come

to that perbaps 0 later when I have just collected

my thoughts on it?

BRENNAN J~ Yes. My difficulty with it comes back to the

question I raised earlier, that is, so far as the

defence is concerned, and that is that when an

employer is sued - and I take the point about

paEagraph 4, but leaving that aside for the moment -

and assuming it to be a case of vicarious liability,

it seems to me a curious proposition that it is

necessary for him who is sued vicariously to have
to plead in a defamation action his own belief
or to plead justification as an admission - I have

put that the wrong way. Either to plead his own

belief or, that when he pleads justification, he

asserts that he presently believes that which is

the truth.

MR HUGHES: I, with respect, can recognize, if that is not

conclusive force, we concede, if it is merely a

a presumptioos thing to say, the force of

case of vicarious liability. But, of course, that

problem is confined to the broadcast. It is

confined to the broadcast because the Tribunal
takes it upon itself to do that which it should
only do advisedly, plead justification in respect
of published defamatory matter which asserts

Mr Laws's involvement in a contravention of the

standard, it does so because Miss Paramore picks

up central elements in the Tribunal's reasons for

decision - the reasons for decision of 24 November -

and states them to the public.

So on the question of the effect of the defences,

really, the question of vicarious liability is

not a problem,. if it ever was, in relation to
the broadcast itself. But, I doubt if I can say,

usefully, anything more than that.

That is rather - and I hope I have not dealt

with it too briefly. There is a case in the United

States Supreme Court - - -

DEANE J:  Mr -Hughes, what if Miss Paramore had not gone

on the radio and, acting on the view you have earlier

mentioned, you sued the Tribunal for·what it said

in its decision?

MR HUGHES: Technically it would have been - may I say this

by way of preface: technically, it would have
been open for us to do that because they published

its decision in their magazine.

C2T3 7 /1 /ND	49	7/2/90
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DEANE J:	No, forget about the magazine.	Simply say they

published the decision in the course of their

statutory function but for the reasons the Full

Federal Court has given the decision was affected

by a denial of natural justice and your client

then, on the basis of the view you have expressed,

sued them for defamation?

MR HUGHES:  The answer to the question "What if?" in that

situation, in our respectful submission,

Your Honour, would be that such a publication would

have been defamatory, certainly capable of a defamatory

meaning.	The question would arise whether it was
susceptible to any defence.	I would say that if

any defence involving, as an element, public interest

or qualified privilege had been raised, the defence

would not have been open because there can be no

qualified privilege, either statutory or common

law - - -

DEANE J:  I think I am diverting you. What I really intended

to refer to was the situation which the Tribunal

then put on these defences because your client

saw-fit to take defamation proceedings at that

stage?

(Continued on page 51)

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MR HUGHES:  With respect, I was trying to grapple with that

question. I would say that, in that situation,

they could not have a defence of qualified privilege

or any defence involving it.

McHUGH J: Is there not a section in the DEFAMATION ACT which

gives you a defence for publishing material

which is expressly authorized or impliedly authorized

by statute?

MR HUGHES:  Yes, but, of course, this would not be authorized

by statute if they were publishing a non-decision.

McHUGH J: Well, it is voidable.

MR HUGHES:  I mean, one can be led clown, perhaps, a tortuous

path.

DEANE J:	Assume that the defence is the same as here, that
is, justification of what they had said, would the
case be any different to this, in your submission?
MR HUGHES:	No, Your Honour, and the reason why it would not

be any different is that if the Tribunal, in the
purported exercise of its statutory powers, denies
somebody natural justice and then proceeds to

publish its decision and then say that decision was

right, there is an obvious inference of bias.

MASON CJ:  Do you say that bias is not the result of the

necessary performance of any its statutory functions.

MR HUGHES:  Of any of its statutory fuctions, yes, Your Honour.

DEANE J:  But its explanation may be your client's decision

to resort to litigation at that stage.

MR HUGHES: Well, if it is the explanation, the question is

whether the explanation can hold up in the factual

situation that:c exists and we Eray it :carmot. I do not want

to go back to what I said earlier. It was not

necessary for the Tribunal, while judicial review

was under consideration by the court, to do what it

did by putting on the broadcast or putting on the

defence at the stage at which it was put on. I do

not wish, Your Honour, to regurgitate what I have

said already.

DEANE J: I follow the point about broadcast but, if one

does not accept your approach as being an acceptable

approach to pleadings, that is, if one does not

accept the approach that, "Oh, I am really going to

rely on justification but I will wait and see what happens and I will put on a pleading that does not

set out the case on which I will probably want to

rely".

MR HUGHES:  Or may, yes.

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DEANE J:  One is in an area where, on your case, in the more

limited circumstances I have put to you, if one has a

deniai of natural justice which vitiates an adverse
decision, the person affected can effectively frustrate

any further proceedings by instituting proceedings in

defamation.

MR HUGHES:  And, Your Honour, we would say, with respect,

there is no injustice in that result if the Tribunal has

fallen into the grave error, when it knows that if there

is a challenge to its finding, in sending its senior

officer to make a broadcast and in then putting on the

defence of justification while the application for judicial

review is pending.

DEANE J: Yes, but the problem may be that that situation sends

one looking for statutory intention in relation to that

set of circumstances.

MR HUGHES:	I want to come to that, Your Honour.
DEANE J:	Why I was asking you this: it may be different if,

instead of all that is involved ..being the performance of
attempted performance of statutory functions, a tribunal

has, as it were, gone right outside those functions and

made statements, for example on a radio station, about

the merits of what is involved in its statutory functions.

MR HUGHES:  That is what it has done in this case.

DEANE J: Except you said it made no difference whether or not

that had been done.

MR HUGHES: Well, there are alternative approaches, and under

the pressure of Your Honour's questioning, let me say -

DEANE J:  I was not trying to trap you, of course, Mr Hughes.

MR HUGHES:  Yes, I know not, Your Honour. Of course not.

Under the influence of Your Honour's questioning, we

would say that this is a case in which, because of

the initial serious errors which made the first decision

a decision without jurisdiction or voidable, the Tribunal in doing that, but certainly in what it did subsequently,

went right outside the limits of its statutory functions.

There was no statutory warrant for making the broadcast

or defending as true imputations which were conveyed

as a result of the repetition of a voidable decision.

I do not think I can put it in any more detail than that.

I hope I have disclosed my position clearly.

In the United States there was a case in the

Supreme Court, WARD V VILLAGE OF MONROEVILLE, (1972)

409 US 57. According to a majority of the court - I am

just reading the headnote:

Petitioner was denied a trial before a

disinterested and impartial judicial officer

as guaranteed by the Due Process Clause of the

Fourteenth Amendment where he was compelled

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to stand trial for traffic offenses before the mayor, who was responsible for village

~inances and whose court through fines,

forfeitures, costs and fees provided a

substantial portion of village funds.

The court relied on TUMEY V OHIO. That was a case,

if I may just interpolate, in which the mayor had a

personal interest in the amount of the fines that he

levied sitting as a judicial officer. So TUMEY V OHIO

was an extreme case, and this was an extension of

the principle in less extreme circumstances. The

relevant passage is at page 60, Your Honours. I will not

read it, but we would submit it is supportive of our

approach.

BRENNAN J: But that is a constitutional case, is it not?

MR HUGHES:	Yes.
BRENNAN J:	Where whatever power might have been conferred

upon a repository by a statute could not prevail over

such an injunction.

MR HUGHES:  Yes. I appreciate the distinction. It is

helpful by analogy, however.

BRENNAN J:	Yes.
MR HUGHES:	When one reads what they said at page 60.

There is a Canadian case, Your Honours,

RINGROSE V COLLEGE OF PHYSICIANS AND SURGEONS OF

ALBERTA, (1976) 67 DLR (3d) 559.

(Continued on page 54)

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MR HUGHES (continuing) That was a case in which the

disciplinary committee of the College of Surgeons ~ecommended thatdisciplinary proceedings be taken

against a practitioner. One of the three members

of the disciplinary committee was also a member of

the disciplinary tribunal which was charged by

statute with dealing with the complaint of

unprofessional conduct. The practitioner complained

that the decision of the investigating committee was

tainted because one of the members of the investigating

committee was also a member of the disciplinary
committee and it is in this case that in one of the

leading judgments reference is made to the

possibility of institutional bias. At page 561

Mr Justice Dickson,with whom several other judges

of a very large court concurred, said:

On the record before us, it is a tenable conclusion that Dr. Mccutcheon did not participate in the meeting or proceedings

of the Executive Committee in so far as they

concerned Dr. Ringrose, and that he played

no part in initiating the process against

Dr. Ringrose.

And then down at the bottom of the page the learned

judge referred to:

The proper method of establishing that

Dr. Mccutcheon did not take part in, or have knowledge of, the steps taken by the Executive

Conn.nittee in relation to Dr. Ringrose, would

have been by an affidavit of Dr. Mccutcheon. One would have preferred such an affidavit-

and so on. And then at the bottom of the first

paragraph on page 562 His Honour said this:

In doing so, I do not wish to be -

that is accepting that Dr Mccutcheon was not

privy to the decision of the investigating committee -	taken as subscribing to the view that there can never be an appearance of bias because of
duplication in membership between two bodies dealing with a similar issue, even if the consideration of the problem in only one of those bodies and absented himself from the other. In some fact situations one might reasonably apprehend bias when a member considers
an issue previously considered by another body
with which he was associated, whether through participation in the earlier decision or
through involvement with colleagues who
actually made the first decision. What may be
termed institutional bias or participation by association should not, in my opinion, be

C2T40/l/CM	54	7/2/90
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rejected out of hand as a possible ground

for apprehension of bias.

And then Mr Justice De Grandpre at page 567

referred to the Court of Appeal in England case,

HANNAM V BRADFORD CORPORATION, which is one of

the last cases I want to come to, I think. Subject
to checking it, it is the last case. I notice

that it is just on time . Is that convenient? I would not anticipate being much longer at all, Your Honours.

~.A.SON CJ:  The Court will adjourn now and will resume at 2.15.

AT 12.46 PM LUNCHEON ADJOURNHENT

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UPON RESUMING AT ?.18 PM:
MASON CJ: Yes, Mr Hughes.

MR HUGHES:  Your Honours, in the Full Court Their Honours

founded their conclusion as to the application of the doctrine of necessity upon the United States' case of

FEDERAL TRADE COMMISSION V CEMENT INSTITUTE, 333 US,

page 702, I think it is, and, Your Honours, the

relevant passages in the judgment of the court are

those which deal with headnotes 5 and 6. It is

headed, "Alleged Bias of the Connnission", and

the treatment of the subject extends over that page

and the following page.

We seek to distinguish that case on the simple

basis that it is an example of a statutory body which

had legislative powers, or powers akin to legislative powers in the course of which it conducted an inquiry

without parties and came to certain conclusions which

it reported to Congress in pursuance of its

statutory duty so to do, criticizing, or finding

contrary to the public interest a particular system

of pricing of cement products. That was one statutory

function that it necessarily had to perform. The

other statutory function was of an adjudicatory nature:

it was entitled, under its statute, to present a complaint

and to hear that complaint, and it undertook that

function after performing the first function, and the treatment of the subject by the United States Supreme

Court was simply this, that because it had to do the

first inquiry and was empowered under the statute to do

the second inquiry, in the form of presenting a complaint

and determining a complaint, the doctrine of necessity,

although it was not referred to as such, applied,

and that is perfectly understandable, but it is

distinguishable.

Now, the second case to which I want to refer is

HANNAM V BRADFORD CORPORATION, which I cited on the

special leave application, (1970) 1 WLR, 937

and the facts, very simply, were these: that the

governors of a school resolved to terminate the

employment of a teacher.

(Continued on page 7)

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MR HUGHES (continuing): The BRADFORD CORPORATION was - the

reviewing was entitled, under its statute, to

review that decision and to determine, if it saw

fit, that the termination be not acted - the

decision of the governors be reversed in effect and

that the appointment stand.

After the governors had resolved that the

appointment of the teacher be terminated the

corporation, acting through a subcommittee as

the reviewing authority, confirmed the decision of

the governors. However, three members of that

subcommittee were governors of the school but

they had not taken part in the original decision

arrived at at a meeting of governors to terminate

the teacher's appointment.

The Court of Appeal held that because of the fa::t that three of the governors of the school -

the primary tribunal, so to speak, had sat on the

reviewing tribunal, the decision of the reviewing

tribunal was invalid and the point is dealt with

in the judgment of Lord Justice Sachs at page 942

in the paragraph below, letter D, beginning:

I would, however, add that there is a slightly

different ground on which it was abundantly

clear that the staff subcommittee decision -

that is that the corporation could not stand -

No man can be a judge of his own cause. The

governors did not upon donning their subcommittee

hats, cease to be an integral part of the body

whose action was being impugned, and it made no

difference that they did not personally attend

the governors' meeting of December 19.

And then His Lordship went on to demonstrate the fallacy

of the opposite view, the passage I need not read. Lord

below letter A:  Justice Widgery dealt with this point, at page 946, just (Continued on page 58)

C2T/42/l/JL	57	7/2/90
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MR HUGHES (continuing):

I am much impressed by the fact that when

the subcommittee sat down to consider what the

plaintiff would regard as an appeal, the

chairman was a member of the governors against

whose decision this so-called appeal was being

brought. I think that if it had been

disclosed at the outset that no less a person

than the chairman of the subcommittee was

a member of the governors in question, the

immediate reaction of everyone would have

been that some real likelihood of bias existed.

I say that with every respect to the

distinguished gentleman who chaired the

subcommittee on this occasion; but when one

is used to working with other people in a

group or on a committee, there must be a built-

in tendency to support the decision of that

committee, even though one tries to fight

against it, and this is so even though the

chairman was not sitting on the occasion when

the decision complained about was reached.

Lord Justice Cross agreed with Lord Justice Sachs

on the natural justice point, although dissented

from Lord Justice Sachs and agreed with

Lord Justice Widgery on another point that does

not matter.

I did cite, and I think Your Honours will

find it on our list, QURBAN's case. May I, without
reading it, refer Your Honours particularly to

the passage in the judgment of Mr Justice Piper

at page 13 on the second half of the page, the

passage commencing~ it is in (1933) SASR,

Your Honour - "It has also been argued".

We would seek to propound the following

propositions which will bring me to the end of

my submissions and they are quite short propositions,

I should hope. Save for the attempt that I said

I would make, to compare with the broadcast, the corresponding passages in the Tribunal's reasons for its decision of 24 November and then my task

will be done.

The first proposition we would put to the

Court is this:  when it appears that a tribunal

is prima facie disqualified from acting by reason

of the application of the principle that no one

may be judged in his own cause, questions may arise

as to whether it should nevertheless not be

restrained from acting. Sometimes in the case

of a statutory tribunal its constating Act will

determine the question. If that Act, on its true construction,
either expressly or by necessary implication requires or permits
that the tribunal be judge in its own cause, that is an end of

the matter. The principle is abrogated.

C2T43/l/ND

58   7/2/90

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MR HUGHES (continuing): Clear language, however, is in our

submission required to raise such an implication

and on that we would cite a very brief passage

from JEFFS V NEW ZEALAND DAIRY PRODUCTION AND

MARKETING BOARD, (1966) 1 AC 551, at page 565.

It is only a few lines. This was a case where the

constitutive Act of the New Zealand Dairy

Production Board had to be considered and the

Judicial Committee decided that on its true

construction it necessarily implied that the

Board was empowered to adjudicate on matters in which it had an interest and Their Lordships cited from MERSEY DOCKS TRUSTEES V GIBBS, at page 565, where Mr Justice Blackburn - in fact he was then Lord Blackburn - said:

"It is contrary to the general rule

of law -

and I will not read on. It is about six lines,

Your Honour.

The same principle was adverted to and applied in the joint judgment of Sir Owen Dixon and

Sir William Webb in TANOS V COMMISSIONER OF POLICE,

98 CLR 383, at pages 395 and 396. I hasten to

say that in that case the relevant principle that

was applied was the audi alteram partem principle,

the other part of the rule, and Their Honours said

that it was a matter of construction in every

case, either of express words or finding a

necessary implication and Their Honours said that, at

page 396,the intention to abrogate the rule of

natural justice, that part of the rule:

is not to be assumed nor is it to be spelled

out from indirect references, uncertain

inferences or equivocal considerations.

(Continued on page 60)

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MR HUGHES (continuing): That passage was cited with

approval in HEATLEY's case, 137 CLR 487 at page 500 in

the judgment of Mr Justice Aickin. In KIOA V WEST,

159 CLR 550 at page 585, Your Honour the Chief Justice

referred to the need for a strong manifestation of
statutory intention in order to exclude the duty

otherwise resting on an administrative decision-maker

to act fairly. The duty of such a decision-maker to

avoid being accuser and judge in the same matter is

part of his duty to act fairly. There is no reason,
in our submission, why that part of the principles

of natural justice should rest less heavily on his

shoulders than the other part, namely the part which says

that everybody must have a fair hearing.

The next proposition we would propound for

Your Honours' consideration is this: the rule against
determination of an issue by an actually or
constructively biased tribunal is, or should be regarded

as, abrogated only in exceptional circumstances which

may be classified as follows, we suggest: 1. where, unless

the rule is abrogated,there will be a failure to accord

a hearing to parties to a lis whose rights have to be

determined in proceedings inter partes. That is

DIMES and QURBAN's case, as examples. In that situation

the abrogation of the principle is necessary to avoid

a failure of justice.

The second situation is where the relevant statute,

expressly or by implication, abrogates the rule, but we submit that in considering that question

one should not impute an intention to the legislature

to abrogate the rule where, in the particular fact

situation, the making of the implication- there being

no express words -would involve what Professor de Smith

described as an affront to justice.

Then there is the situation exemplified by

CEMENT INSTITUTE, the United States case, and RAUBER's

case, where there is a duality of statutory function,

both necessarily having to be performed.

(Continued on page 61)

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MR HUGHES (continuing):  We would say next, in considering the

applicability for the purposes of judicial review of the principle, particularly in the case of its

possible application to a statutory tribunal which

is not a court, the court - and even in the

case where the position of a court is being
considered -ought, in the last resort, to balance

the competing considerations in favour of or against

applying the rule of necessity in the particular
case. It ought not to be applied inflexibly in all

cases so as to subject a person to the decision-

making authority of an actually or constructively

biased tribunal.

In every case it is a matter of determing

where the balance of justice lies and we say that

in the present case the balance lies in favour of

restraining the Tribunal as a whole from further

inquiry into alleged contraventions of the relevant

programme standard by Mr Laws for the several

reasons that we have advanced in argument and I

shall not trouble the Court by repeating even

in summary form. On the question of whether the

whole Tribunal is disqualified, as we suggest,

the provisions of section 15C have a distinct

bearing and I will not repeat that.

The only other task I want to perform which

will take me only a moment or two is this: I said

to one of Your Honours before the luncheon adjournment

that I would refer Your Honours to those passages in

the transcript of the Tribunal's decision which

accord with the imputations which have been justified.

Your Honours, if one goes to page 21 of the appeal book one has the decision at line 40 and then the

Tribunal says by way of emphasis:

the topic of debate was not in issue. The

problems have arisen because of the manner

in which the discussions were handled by

Mr Laws.

Then at page 22, lines 17 to 23 and lines 36 to 40,

one sees findings by the Tribunal that Mr Laws

tried to inflame his hearers instead of balancing

extreme reactions from callers and did not allow

callers with an opposing view to be heard.

(Continued on page 62)

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MR HUGHES (continuing):  I would also refer to lines 34 down

to 40. Those findings really correspond in

-substance with imputation (b). Then at page 25 of

its quite lengthy reasons the Tribunal found that

Mr Laws responded from an Aboriginal person, not in

the manner"of a person seeking to let his audience

hear another viewp9int. That allegation, which of

course was part of the very fundament of the

Tribunal's finding of breach echoes imputations(b)

and (d). At page 25, line 16 the Tribunal makes a

reference to Mr Laws's failure to let his audience
put another viewpoint and his aggressiveness and

bullying manner. That corresponds with imputation(e).

And there are other findings at pages 25 and 26 of

aggressive, unfair, bullying and inflam:natory conduct.

broadcast. For those reasons we would submit that

Findings which correspond with imputations (b), (d)and (e).

the appeal be allowed, either to the full extent

which we seek or if a full restraint is not

appropriate, some lesser restraint, bearing in mind

that our alternative position is that, although we

do not concede it, it would be possible to devise a

restraint which positively impacted upon all members

of the Tribunal who have been in office at any time

during the period in which the defences were put on

and the broadcast made.	Those are our submissions
to the Court.

(Continued on page 63)

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MASON CJ:	Thank you, Mr Hughes.	Yes, Mr Nicholas.

MR NICHOLAS:  If the Court pleases, may we hand up our outline

of- submissions.

Your Honours, a great many of the matters touched on have already been covered by my learned friend and

it will not be necessary to go through them in the
detail that appear in this outline, but at the

beginning, Your Honours, may we take you back to the

statute, and come back to some of the provisions

which deal with the constitution of the Tribunal, the manner in which members are appointed and the

situation as it affects staff of the Tribunal?

Your Honours, Part II Division 1 of the Act

deals with the establishment and constitution of the section 7 of the Act, where it is provided that the

Tribunal will be established, and Your Honours see

in subsection (2) that it is a "body corporate", and

(c), that it may "sue and be sued under its

corporate name". The membership of the Tribunal,

Your Honours, is provided for in section 8 and at 8(1):

The Tribunal shall consist of a Chairman, a Vice-Chairman and at least one other member but not more than 6 other members.

Under subsection (2):

These members shall be appointed by the

Government-General as full-time members -

and the rest of the structure goes on to provide for

the duration of the appointment in any particular case.

The same scheme is adopted in sections 10 and 11, which

deal with the appointment of acting members and

associate members.	I will not take Your Honours to
the detail of them.	Some reference has been made,

Your Honours, to section 15B, which deals with

meetings of the Tribunal, and 15B(l) provides that:

The Tribunal shall hold such meetings as are necessary for the performance of its functions.

By subsection (2), the chairman or vice-chairman
is given the power to convene meetings, and the
following sections go on to deal with quorum and the
presidency, and at section 15B(7):

Questions arising at a meeting shall be determined by a majority of the votes of

the members present and voting.

C2T48/l/FK	63	7/2/90
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And then the divisions are dealt with, Your Honours,

in section 15C(l). I think Your Honour Hr Justice Deane

raised the question as to whether or not interpretation

of- 15C (1) would enable an associate member to sit alone

as a division for the purposes of it conducting an

inquiry. I think, with respect, Your Honour, that

it would seem not: that if one reads 15C(l)(a), it

makes plain that a division shall consist of a "member";

and then to that person there may be designated an

associate member, or associate members if any, appointed,

similarly - appointed for the particular inquiry, I

should say - and (c), if any, designated by the chairman.

Thus it would seem, Your Honours, that a

division must have at least a member, as we read it.

The following provisions in section 15C enable the

chairman to appoint additional members, replace members

and so on. That appears from subsection (7) and (8),

and it is probably not necessary to say anything more

about that. In this context, Your Honours should

perhaps consider section 25A. The whole of that

section deals with the situation where a member or

an associate member has ceased to be available.

It should be appreciated of course - - -

(Continued on page 65)

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MASON CJ:	What section is this, Mr Nicholas?
MR NICHOLAS:	25A, Your Honour.
MASON CJ:	Yes.
MR NICHOLAS:	25A deals with the situation where a member

or an associate member ceases to be available.

Under subsection (2), it would seem that the

situation may well arise where one had an inquiry

being conducted by a division consisting of a member

and an associate member but for some reason or

another the member ceases to become available and

the associate member would be able to continue

on with the inquiry. That seems to be the effect

that 25A(3) would give in this context. Of course,

it is also to be appreciated that this section

deals with an inquiry then under way and the

preliminary matter with which a· substantial part

of this particular case has been concerned, of

course, is whether or not the Tribunal should entertain

any further a proposal as to whether or not it

should exercise its substantive powers under

section 7C(l) and I will come to that section in

a momen~ Your Honours.

But if I could ask you to go back to the sections

dealing with the membership and composition of
the Tribunal and ask the Court to go to section 15E.

That section deals with the staff of the Tribunal, recognizing, of course, a real distinction between

members-·and staff. lSE(l) provides that:

The staff of the Tribunal shall be persons appointed or employed under the PUBLIC SERVICE

ACT 1922.

(2) For the purposes of this section, the

Chairman of the Tribunal has all the powers of, or exercisable by, a Permanent Head under

the PUBLIC SERVICE ACT 1922 so far as those

powers relate to the branch of the Australian

Public Service comprising the staff of the Tribunal as if that branch were a separate

Department of the Australian Public Service.

And, Your Honours, the functions of the Tribunal

are dealt with in section 16. And those functions,

quite plainly, appear to be those which one would
expect members in an appropriate case to be

undertaking and they include, as Your Honours will

see, 16(1) (g), the function:

to hold inquiries -

and the others are listed there.

C2T49/l /ND	65	7/2/90
Laws(2)

Section l6(6B}· provides that:

The Tribunal may do all things that

are necessary or convenient to be done for
or in connection with, or as incidental to,

the performance of its functions and, in

particular, may:

(a) produce, publish or distribute documents;

(b) conduct or arrange for conferences or

seminars;

(c) provide information services;

(d) otherwise publish or distribute

information -

and -

(f) do anything incidental to any of its

powers.

BRENNAN J. Is this an amending Act that contains that

provision?

MR NICHOLAS:  Your Honour, I see that this section appears

from my loose-leaf copy, Your Honour. it ind±cates

that (6B) was inserted by the Act No 146 of 1988.

MASON CJ:  Yes. We only have the statute up to 1986. We

have the amendment now.

MR NICHOLAS:  That is the amendment, Your Honour, and it

gives the Tribunal the power to do those other things. Your Honours, section 17A(2) sets out the substantive powers of the Tribunal and these

are powers which it may not exercise unless it

embarks on an inquiry. And of particular relevance

to this case, Your Honours will see that 17A(2)(j)

provides that it is a substantive power:	to give directions under sub-sections 92N(l),
99(2) or 119(1) -

That is the provision, of course, which may or

may not affect Mr Laws and may empower the Tribunal

at the end of an inquiry to suspend him from

broadcasting and, indeed, it is the only section

which deals with an individual other than a

licensee.

Section 17C(l) and (2), Your Honours, provide

the necessity for the Tribunal to hold an inquiry
should it propose to exercise any of the substantive

powers to which we have been referring.

C2T49/2/ND	66	7/2/90
Laws(2)

MR NICHOLAS (continuing): Section 17C(2) provides that:

--Where the Tribunal proposes, either on its own

initiative or at the request of any person, to exercise any of its powers, other than a substantive power, under this Act or the

regulations, the Tribunal may in its

discretion hold an inquiry -

and 17C(l) . imposes the obligation. So in this

situation the Tribunal is proposing to hold an

inquiry,having so proposed it is then bound before

exercising its relevant substantive power to

undertake the inquiry.

Your Honours, my learned friend has already taken you

to the provisions of section 119 and; of course, the other

provisions which were referred to by the Tribunal in

what it called its issues for consideration in

the proposed inquiry. They are to be found at

pages 33 and 34 at the book.

Your Honour~ what we say about all that is this,

that there is a very real distinction between the

members and the staff of the Tribunal. The broadcast
makes it plain that Miss Paramore went on air as the
programn:e ·director of the Tribunal and that is at page 11,

line 30 of the book.

BRENNAN J:  Mr Nicholas, before you go on, can you tell me when

did section 16(6)(b) come into force?

MR NICHOLAS: Your Honou½ I cannot tell you that,I will have it -

BRENNAN J: In particular, did it come into force before or after

29 April 1988?

MR NICHOLAS:  I will have that looked at, Your Honour.

We have got that in train. Your Honour

what we want to put is that one cannot equate the	'
members and the Tribunal in the way in which my learned

friend would. He put to you that, in effect, the

members are the corporators - the mind and will for

all purposes of the Tribunal.

MASON CJ:  Mr Nicholas,we have some clue as to when the amendments

came into force; the amending Act 1988 was assented

to on 26 December 1988.

MR NICHOLAS:  Thank you, Your Honour.

BRENNAN J: Can I just pursue that for one moment, is it right

to say that prior to the amending Act the Tribunal

was not vested with a statutory power to publish or

distribute information?

C2T50/l/JL	67	7/2/90
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MR NICHOLAS:  Your Honour, that provision was not there.

BRENNAN J: ~-appreciate that but did it have any other power?

I~ has a s~atut0ry power?

MR NICHOLAS:  Your Honour,under section 17(1) it has the power

that is presently there, namely:

For the purpose of exercising its powers and

functions under this Act, the Tribunal shall

have power to make such orders, give such

directions and do all such other things as it

thinks fit.

But as far as I am aware it did not have - the

legislation did not spell out with the particularity

that s.ubsection;.(6) (b) does the various matters that

are set out there.

BRENNAN J: If I can pursue it just one step further and I

will desist from interrupting your argument, is it

contended that the making of the broadcast by

Miss Paramore is an exercise of any statutory power by the Tribunal?

MR NICHOLAS:  We would say yes, Your Honour, that it could be

justified in this way. The Tribunal makes decisions

and makes statements; amongst other things it is
a policy-making body. It is incidental to - the exe:.-cise

and carrying out of its functions would be empowered

to publicize what it is doing to make known to the

public what it was doing and we would say that what

Miss P~amore was doing was, in effect, repeating the

essence of the decision and conclusions that were

reached on 24 November and was well within the

incidental power that they had.

(Continued on page 69)

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:MR NICHOLAS (continuing):  Similarly their publication, although it

does not fall for consideration here, but it has

p~en referred to in the judgments>a publication

was made of this decision in its own magazine

and distributed to the public. It was a means of
bringing to the public's attention their activities.

And what we are going on to say, with respect, is

that what Miss Paramore said was a repetition of

the substance of what was to be found or would be
found by the observer who bothered to inquire of

what was contained in the decision of the - - -

McHUGH J: What was the statutory authority that published the

decision?

MR NICHOLAS: Well, Your Honours, we would say that under

section 17(1) it would be quite fitting to bring to the attention of the public a conclusion that

it had reached in the course of considerations

resulting in the proposal to institute an inquiry,

as it had to do under section 17C(l) . In other

words, that before it could undertake the task

required of ;it by the statute,it would have had, because

the regulations governing the conduct of inquiries
provide for it, set out for the public the issues

proposed to be inquired into and matters of that sort

and we would say section 17(1) would be ample source

of power for publicising the matters that it deals with.

Your Honours, I think I may have an answer to that.

Your Honours, there is a provision under the regulations
to the Act which deal with. 'inquiries and that includes
the requirement to publish the notice of issues in

the gazette.

McHUGH J: What section is that?

MR NICHOLAS: This is the Australian Broadcasting Tribunal

Inquiries Regulations, Your Honour. It is Regulation 18.

MASON CJ: Where do we find this? You have a copy there.	(Continued on page 70)
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MR NICHOLAS:	I know, Your Honour.	It is not on the list,

with respect.	We did not anticipate that we would
be looking at these regulations.	Your Honours, what

I wanted to come back to when I took you to the

sections dealing with the composition of the Tribunal,

was the emphasis that we would make of the distinction

between members, and what they are required to do, and

the Tribunal itself, and obviously enough, its staff, its

servants and agents, who carry out, do the day-to-day

things necessary to be done, because we would put that

it just cannot be correct to say that when one is

dealing with either a broadcast by Miss Paramore or
the filing of a defence in response to proceedings
brought against the entity, the institution, that it

cannot be said in this context that the statements made

by Miss Paramore, the assertions made in the defence,

really reflect a corporate activity in which the

individual members are directly involved.

McHUGH J: But why can you not draw the inference and in

the absence of any evidence to the contrary - draw the

conclusion that all the members were a party to the filing
of this defence and indeed authorized Miss Paramore

to make the statements she did?

MR NICHOLAS:  But, Your Honour, to draw that inference you

would need to say it was sufficient simply that their

membership of the Tribunal was enough to enable a person

to conclude that whatever the Tribunal did had their

assent, authority, their participation.

McHUGH J: Well, a defence of justification in respect of

the present appellant, who is a well-known public

figure, is a serious step. One would not likely think

that a defence of justification would be put on without

the approval of the board of the Tribunal.

MR NICHOLAS:	Yes.
McHUGH J:	If it hia been done by delegation for one member

to conduct the defence, or if the registrar of the

Tribunal or somebody else had been delegated, it could

have been proved, but in the absence of evidence, why

should not the inference be drawn against you?

MR NICHOLAS: Well, we would say, with respect, Your Honour,

that there is no basis - and we would say it is reflected

in the structure of the statute - for regarding the

members of the Tribunal as the equivalent of, say,

the board of a company.

(Continued on page 71)

C2T52/l/LR	70	7/2/90
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McHUGH J:	Why not?	It can only function by a majority of its

members in the absence of power of delegation.

MR NICHOLAS:  Your Honour, the members are assigned a

particular range of functions and it can be seen,

for example, that they will be- obviously, they

are invested with the power to undertake inquiries,

the functions we have gone through in section 16.

The nature of their appointment, that is to say,

by the Governor-General for a certain period, and
so on, is substantially different from the basis

upon which staff members are appointed.

McHUGH J: Well, who do you think makes the decisions at CSIRO?

The staff or somebody? I mean, they have got a

board appointed by government members and the

Reserve Bank is the same. There are numerous

tribunals set up in this way.

MR NICHOLAS:  But, Your Honour, to enable the inference to

be drawn to what Your Honour is putting, we

would suggest that you would need evidence to

demonstrate that the involvement of any member in

the giving of the instructions to the solicitor
to the participation of one or more of them in
that matter, there is not the slightest evidence

to suggest that the solicitor consulted any of the

members at all or took instructions from them,

a fortiori, where one has members appointed after

the defence has been filed.

McHUGH J:  Somebody has authorized this defence to be put on.

Does one draw the inference that it is somebody in

the office or does one think it more likely that it be done with the approval of the Board and if there

is no evidence to the contrary why should not the

inference be drawn against you?

MR NICHOLAS:	Your Honour, the only inference that could be drawn against a member, we would suggest, would be
against the chairman because the chairman's functions are particularly spelt out in section 15E where
she is, in effect, given the powers of the
departmental head.  Now, one can perhaps draw an
inference that she may be involved in the exercise
and as it happened in this case and we know she, of course,_ was a participant in the decision which complaint has been made but that does not enable an
inference to be drawn to the effect that any or all of the other members had any participation in this exercise.

C2T53/l/DR	71	7/2/90
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MR NICHOLAS (continuing): The evidence is just not there,

with respect, and we would say that it is not open.

BRENNAN J: -what inference are you conceding in those terms

might be drawn against the chairman?

MR NICHOLAS:  At the highest against us, Your Honour, that the

chairman, either directly or indirectly, gave the

instructions to the solicitor or approved the

solicitor putting on a defence in response to the

statement of claim.

BRENNAN J: Well that by itself is not an ultimate fact for

the purposes of these proceedings, is it? Is it

a question of what the state of mind of the

chairman is, to be inferred from those circumstances,

or what? What is the inference?

MR NICHOLAS:  Your Honour, one gets no inference whatever as

to the state of mind of the chairman. Perhaps it is

unnecessary, if I can put it that way, Your Honour,

to deal with the chairman and her role because she,

in effect, is out of it anyway. But if one is coming

to look at the evidence which would enable the

reasonable person who has taken the trouble to be

informed about what was happening and how these people

hold their positions and so on and what they do,

of these individuals, all of them, would be infected by the earlier decision and, of course, by the involvement -"involvement'' is the wrong word - the act on behalf of the entity of filing this defence.	it is necessary for him to conclude that the minds bias reflected through interest, however wide
that term might be, one is concerned really to.
consider whether there are grounds that the individual
or individuals who will be required to adjudicate on
a particular matter will not do so with a fair and unprejudiced mind.

And so one is looking for evidence to draw a

conclusion that the mind of the particular individual

will lack the qualities that are necessary for him

to have. And thus we say, with respect to Your Honour
that there will be no rational basis absent any

evidence to indicate involvement, to infer that the

act of putting on a defence in the terms in which

it was ~d preclude a particular individual

member in discharging his statutory function in the

course of an inquiry yet to be held.

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McHUGH J:	Why is it not a rational view if you take these steps: 1. they make findings against the appellant
that he is guilty of breaches of the standard without
hearin~ him; 2. a senior officer goes on radio and
repeats the allegations, on your own case? In the meantime
he has taken action to have the decision reviewed
administratively, a defamation action is started, and
then the Tribunal puts on a defence that what it
published in its decision was true.  Why can you not
draw the inference that it has be  done by the Tribunal
itself, the members of the Tribunal?
MR NICHOLAS:	Your Honour, to do - - -

McHUGH J: Bearing in mind, particularly, the consequences of

putting on a plea for justification in a defamation

action when you do not believe in its truth.

MR NICHOLAS:  Then Your Honour, in putting that back to me,

with respect, is really equating the corporate entity,

the Tribunal, with the individual members of it, and

what Your Honour is putting back is that the assertions

in the defence are those which represent the views held

by each of the individual members.

McHUGH J:  No doubt a rea$onable person might apprehend?

MR NICHOLAS: Well, Your Honour, we would say that a reasonable

person would not because if a reasonable person looked

at all of the relevant facts, and the authorities in this

Court make it very clear that he should, and my friend

in his submission accepts that that should be so, so if

one is looking at what has been described most recently

in this Court, in VAKAUTA V KELLY, as the reasonable

and intelligent lay observer, and go on from that to the

person who has informed himself of what the situation

is, he will come, we suggest, to this situation: he will

have an understanding as to the role of members in

this entity. That is to say that it is incorrect to

equate them with the board of a corporation. He will

be aware that what Miss Paramore had to say was, in

the0 decision set out the basis of the recommendation to	in:>wb.ich three individual members participated, and that substance, a repetition of the decision of 24 November
thErremaining members of the Tribunal that there should
be an investigation into these matters. The next thing
that he wouJ.d realise, we would suggest, with respect,
is that at the point of time at which the broadcast had
been made and the defence had been filed, the decision
- if that is what it is to be called - was still on foot.
The proceedings before the Federal Court had not
resulted in any judgment which had the effect that we
know about. So at least up until August 1988 the
observer, we would suggest, would be entitled to proceed on the basis that the conclusions of the Tribunal
still stood. What we are saying is really that the
broadcast does not take the decision any further.

C2T55/l/LR 73 7/2/90

Laws(2) (Continued on page 73A)

Now, Your Honour, we have set out, on page 3

of our notes,the various matters that we would

say would be relevant for consideration by the

obseryer, and I think that I have probably covered them in what I have just said. It would also be understood,

we would suggest to Your Honour, that since the

decision, at first instance, new members have been

appointed to the Tribunal who have no connection whatever,

other than bare membership, with the previous decision.

McHUGH J:  But does that not go to a separate point?

The new members who have been appointed since the

decision, were they - what members were appointed since

the defence was filed?

MR NICHOLAS:  We have put it in our chronology, Your Honour.

There is an affidavit in the book, and I will turn to

it. Page 81.

(Continued on page 74)

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McHUGH J: It is Mr Ramsden and Mr Westerway.

MR NICHOLAS~ That is since the decision, yes,Your Honour.

McHUGH J: Since the filing of the defence.

MR NICHOLAS:  Yes,that is so. I am not sure if Your Honour

finished.

McHUGH J:  I was referring to 3 point 6 of your written

submissions and I was about to say that point was a

separate point, but it does not affect the question

of disqualification of members up until - - -

MR NICHOLAS:  No, it is a separate point. I see that,Your Honour,

but it can be brought in this way, with respect, and

save coming back to it. My friend I s. ascertion was

that the filing of the defence precluded any further

consideration of this matter henceforth .,full stop, because

members appointed subsequently to the filing of the

defence too would have a very real interest in and,

more importantly,the effect of what my learned friend

said I think, with respect to him, was had adopted,

were ascerting and while this defence was being

maintained, were maintaining the ascertions contained

in it, thus rendering them unfit to deal with the

matter.

DEANE J: Mr Nicholas, you said the decision stood at the time

of the radio interview. What was the nature of the

decision? What was the statutory power the Tribunal

was exercising in deciding that Mr Laws was guilty

of the things that they found him guilty of?

MR NICHOLAS:  Your Honour, therewas no statutory foundation

for that conclusion. It is not right and I think the

courts had trouble describing the status of what the

conclusions were as expressed by the members on

24 November.

DEE!-ill J:

Then does that mean that none of the provisions in

the Act or for that matter in the regulations to

which you referred about inquiries, will be applicable

to whatever it was the Tribunal was doing?

MR NICHOLAS:  No, Your Honour. We would not accept that. What

we say·the Tribunal was doing - if one goes back to

section 17C(l) Your Honour. Now 17C(l) obliges

the Tribunal to hold an inquiry where it proposes to

exercise a substantive power, thus it has,prior to the

decision,to exercise a substantive power. I:t may be

assumed that it will undertake some investigation,
make some inquiries, deal with matters that have been

put before it from members of the public in this case, for example, in order to get to the preliminary point.

C2T56/l/CM	74	7/2/90
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Now, Your Honour, that activity is legitimate and

obvious enough, with respect. So what it was doing

in bringing itself to the stage where it had

decided to exercise the power, was an activity

completely within power.

D:.A..~E J:  But is the proposition this, that before the

Tribunal sets out on an inquiry as to whether it

should exercise the power under (j), it finds the

person guilty, rather than what 17C refers to is

an inquiry about whether the person is guilty,

thereby setting up a situation in which the powers

would be available to be exercised? I am not putting

a point of view - I am just trying to understand.

MR NICHOLAS:  No, Your Honour. I think the best I can say is

this, with respect,Your Honour. It contemplates

that there shall be a preliminary investigation,

which will bring - - -

DEANZ J: What about finding of guilt?

MR NICHOLAS:  I do not think it can properly come to a finding

about guilt, given the significance of the term

"finding about guilt", obviously enough, which might

have the consequences that we - - -

DEMIB· J: Without embarking on the section 19 inquiry under

(j). That just brings me back to what I asked you.

If that be so, how can any of these protective

sections or provisions of regulations dealing with

inquiries be relevent to what happened up to the

stage when the decision that Mr Laws was guilty

was made?

(Continued on page 76)

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MR NICHOLAS:  I suppose, Your Honour, in this way: that they

were the Tribunal, as it believed properly, was going

about the preliminary investigation steps necessary
to bring it to the point where it recommended that
the substantive powers be exercised. That is what it was
saying at the conclusion of its decision or recommendation,
that, "given all of these things, it is recommended

that'', but of course the by-product was that it had

expressed views and come to conclusions that we know

about, and that is what brought them down.

McHUGH J: But it did more than that, did it not? When you look

at the document as a whole	it is very difficult to see
what would authorize that document as whole.	T1:iere are

parts of it that might be legitimately published for

the purposes of a 119 inquiry, but the question of guilt

runs right through it.

MR NICHOLAS: Well, Your Honour, I suppose from my client's point

of view it is endeavouring to put together in a document
to go out for the information of the public, the

recommendations that it comes to and the scope of the

inquiries which it recommends should be undertaken.

McHUGH J:  Because if it had set out a docur:.ent ·w"hich set out the

complaints to say what it was inquiring into, in fact,
it would probably have to do that, but these are not in
terms of what it is going to investigate, it is all in

the past,; it is telling the world what it has already

found; not only what the investigating committee found,

but in the openixIB pages, the Full Tribunal gives its own

authority to those findings.

MR NICHOLAS: Well, Your Honour, the exercise began as, we would

suggest, a proper exercise of power, and the Tribunal

at the completion of its preliminary investigation, as

it would have it, came to the conclusion that the grounds

were there .ior an inauiry dealing with ti:1e issues

that it also set out in its information paper, and in
order to explain that it published its conclusions

that, for example, the 2GB, the station, had been guilty

of the breaches of the programme standards. (Continued on page 77)

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MR NICHOLAS: It is not without significance, we would

suggest to Your Honour, that the Tribunal recognized

that the RPS3. imposes an obligation upon the

licensee~to broadcast a programme of a particular

kind and that the recommendation was, or the

conclusion, for example, at page 21, line 40, was

that it was 2GB which breached the programme standard.

It has been very easy to slide into the reading of substituting Mr Laws's name for the station. But the conclusion that they came to was that the

radio station, the licensee, to whom RPS3 is

directed was in breach.

True it is that Mr Laws, the presenter, was

the instrument by which 2GB fell into breach but

nevertheless its conclusion makes it plain that -

and that is restated at page 30, line 15 - the

breaches of the standard by the licensee occurred
during Mr Law's prog~ammes. That, then, caused

it to make the recommendation which is set out

on page 32, line 20, that, as Your Honours see,

that it follows that a contravention of

section 99 (lA) of the Act occurred. And 99 (lA)

imposes an obligation upon a licensee to:

to supervise the broadcasting of the

licensee's programs.: ... to ensure.-·

in effect, that it complies with the standards.

DEANE J:	But does it not all really come down to this that
somebody in the Tribunal would seem to have thought
that the word "proposes" in section 17(1) has the consequence that if you are going to exercise powers
under section 119, whether or not the person is
guilty is no part of the inquiry, you decide he is guilty first and you then set out to consider
what the punishment will be?
MR NICHOLAS:	No, Your Honour, that is perhaps taking it

too far, with great respect, because the section 119

mechanism requires - Your Honour, the section is

set out in the book, it is at page 34.

MASON CJ~ It requires notice to be given before any direction

is given, giving the person the opportunity of

showing cause.

MR NICHOLAS:  That is so, Your Honour, but at page 34,

line 25, for example, it· provides that:

Where a person has -

(a) presented -

the programme, and so on -

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in respect of which, or in respect of the

broadcasting of which, the program

standards were not complied with -

now, that is 2GB, the licensee failed to comply

with the standard.-

the Tribunal may -

BRENNAN J: Why do you say it is 2GB, it is Mr Laws too,

is it not?

MR NICHOLAS:  Your Honour, the relevant section is directed

to the conduct of the licensee.

McHUGH J: Wliat about .119, it is directed to - the 119

inquiry is directed to Mr Laws?

MR NICHOLAS: Certainly, it is, Your Honour, but it goes

this way, with respect: they have come to a

conclusion that the licensee has breached the

programme. There has been a contravention which

gets them passed the first part of section 119(1) - - -

DEANE J:	But did they think they were having an inquiry
under the division or not?
MR NICHOLAS:	I do not think so, Your Honour, no.

DEANE J: Well, in that case, is not what I put to you

correct, they thought that they found the person

guilty:before they embarked on their inquiry and

they saw the inquiry as concerned not with whether

he was guilty or not but as concerned with what

the punishment would be?

MR NICHOLAS:  Your Honour, I cannot get away from the finding

of guilt at the first stage of 2GB and that then

attracts the jurisdiction to move into section 119

but before thete can be a section 119 - - -

McHUGH J:  But it is also a finding of guilt against Mr Laws

so far as 119 is concerned, is it not, because

it says:

Where a person has -

(a) presented in a live broadcast .....

in respect of which ..... the program standards

were not complied with -

he may prohibit that person from presenting programmes.

You can only act against him if he is contravened

the standards.

MR NICHOLAS: 

Your Honour, I cannot escape that the effect of the

recoomendation or the decision contained within it findings of
guilt against Mr Laws, and we have not sought to do that, we have
recognized that throughout, with respect.

C2T58/2/ND	78	7/2/90
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MR NICHOLAS:  Your Honours, I have said what I wanted to put

to Your Honours about there being no rational basis to conclude that the broadcast - that the defence -

can be sheeted home, in effect, to the individual

members and I have endeavoured to put that it is

just not right to equate the members of the Tribunal,

under this Act, as comparable to members of the

board of a conventional corporation.

BRENNAN J:  Mr Nicholas, for my_ part I would find it easier to draw

an inference adverse to your client if I were

satisfied that the defence was one which says that

the Tribunal is of the belief that Mr Laws is guilty.

Now, do you acknowledge that that is what the defence

says: that the Tribunal then, at the time of the

filing, says, "And we believe that"?

MR NICHOLAS:  No, the defence does not say that, Your Honour.

BRENNAN J: Well, now, why does it not say that?

MR NICHOLAS: 

Your Honour, the defence has nothing to say

about the belief of the Tribunal or, indeed, of
the belief of Miss Paramore. It is not a verified

defence. It is a document filed by the entity's
solicitor. It is a long way away, Your Honour,

from a set of proceedings in which any of the

individual members are joined as defendants and

had one been dealing with proceedings in respect

of which, for example, the participating members
in that decision had been joined as defendants

then our difficulties may be of a different kind.

DEANE J: What if the Tribunal had been a corporation sole

instead of a corporation eight as :it apparently

is?

MR NICHOLAS:  I do not follow the distinction that Your Honour

is putting to me in this case.

DEANE J: Well, if it had been a corporation sole, the corporation	would be the individual and the individual would be	the corporation. Here the eight people - I think it
is eight, is it not? - are the corporation. They
are the Tribunal; they have .a corporate entity but, no_ne the less, they are the Tribunal.

MR NICHOLAS:	With respect, Your Honour, they are the Tribunal for particular designated purposes and functions
so that when they give a decision about something
that will be the decision of the Tribunal. The
decision of a judge of the supreme court will be the
judgment of that court. But it is not the same, we
would suggest, as the liability of the Tribunal for
what Miss Paramore may have said to be equated with
the responsibility or liability of any individual
member.

C2T59/1/DR	79	7/2/90
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McHUGH J: Leave aside the corporators for a moment. Do you

concede that the Tribunal itself was asserting,

by filing the statement of defence, that Mr Laws

was guilty of the conduct set out in the imputations?

MR NICHOLAS: Well, Your Honour, we will not go so far,

Your Honour. One needs to look at the imputations

and there is room for argument about that.

McHUGH J:  I know, that is why I fra:neci it in terms of imputations.

But one thing is clear, is it not, that the Tribunal is

saying, by its defence, that imputations (b), (J) and

(e) to begin with are true.

MR NICHOLAS:  Yes, that is. It is making that assertion in

the pleading.

McHUGH J: And that we are going to prove it is true at the

trial in this action.

MR NICHOLAS:  As the pleading stands.

McHUGH J: Yes, and so far as the other imputations are concerned,

that they were published contextually to an

imputation which you frame and say that the plaintiff

conducted a series of radio programmes that were

designed to lower the community's view of Aboriginals.

MR NICHOLAS:  Yes.

McHUGH J: And you assert .that imputation is true - - -

MR NICHOLAS:	That assertion was made in the pleading.
McHUGH J:	- - - which is drafted by the Tribunal.

MR NICHOLAS: Well, it is drafted by the solicitor for the Tribunal. Your Honour keeps bringing it back to enabling that to be the basis for the conclusion that the individual members of the Tribunal played

some part in the drafting of this pleading.

McHUGH J: But it would be extraordinary if a solicitor just

put on these defences without consulting the Tribunal

or somebody in authority.

MR NICHOLAS:  There is no evidence as to whom he consulted or to where the instructions come from. The only

legitimate conclusion we would put to Your Honour,

having regard to the statute, is that the chairman

may be taken to have given those instructions.

That is the inference.

C2T59/2/DR	80	7/2/90
Laws(2)

MR NICHOLAS (continuing):  As a matter of fact we do not know

whether she did or did not. One thing there is no

evidence about we put to Your Honour to suggest

that any other individual or individuals who were

members had any knowledge about the defence going
on, let alone giving any instructions about it or,

indeed, that the instruction given

to the solicitor from whomever it came, was the

result of some meeting or considered view by all

of the members.

Your Honour, we put to you as earnestly as we

can that there is just no material to enable the

conclusion to be drawn. that the minds of the

individual members of the Tribunal are such that

by reason of the entity filing the defence

they will be unfit to conduct any investigation

according to law, that is to say, to receive and

deal with evidence that might come before it in a proper way, to deal with the submissions that - -

McHUGH J: That is another question though. The preliminary question

is whether or not you can infer the corporators

were responsible for this defence going on.

MR NICHOLAS:  Your Honour, I do not think I can say any more

than simply,no,to that, with respect.

BRENNAN J:  I can understand what you have said in relation

to the defence of justification. What about qualified

privilege? Is there any element of belief that has

to be established in a defence of qualified

privilege? And if so, whose belief?

MR NICHOLAS:  At common law, no, Your Honour, and I do not think one need deal with common law here. Under

section 22 of the New South Wales Act it is
necessary to demonstrate that the publication of the
matter, which is the defamatory matter, was reasonable

in the circumstances. There is very little

guidance about what one needs to do to establish

reasonableness.

McHUGH J: What there is suggests that speak~ng

generally_ you would have to call every one of the

corporators to prove his or her belief in the truth

of what was published.

MR NICHOLAS:  The relevant servant or agent of the corporator,

Your Honour, in a newspaper case, you would usually

call the journalist to demonstrate the care with

which they had been put together.

C2T60/l/LW	81	7/2/90
Laws(2)

McHUGH J:  But this meeting is not by his servant or agent,

is it? A statement of claim alleges a primary

liability.

MR NICHOLAS:  Yes, it does.

McHUGH J: Well, you have pleaded truth to that, or qualified

privilege to that.

BRENNAN J: If it could be shown - - -

MR NICHOLAS:  Can I answer Your Honour Mr Justice Brennan this

way? It is not necessary in order to succeed in

that defence that there be evidence as to belief or

state of mind. In other words -and indeed in a matter

such as this. 'Ihere may not be difficulty in

demonstrating the reasonableness of the conduct of

publishing this matter without bringing any evidence

of that kind at all. For example, it may be

sufficient simply to replay the broadcasts of

March 1987 conducted by Mr Laws and that they would

speak for themselves. The text of them is in the

book and my friend has given some reference to the

pages.

But one could quite easily see in a case of this

kind how that might very well be sufficient and so

shortly stated, with respect, Your Honour, no,

it is not necessary in order to succeed in this defence

that belief be established at all. And indeed, in a

case like this one could quite easily see very good

reason why one need not get into that area at all.

BRENNAN J: If any state of mind be relevant at all, it is a

state of mind which is entertained at the time

of publication.

MR NICHOLAS:  Yes, it is.

BRENNAN J: And is that a state of mind of Miss Paramore here

or of the Tribunal - and perhaps I should say·

this comes back to my question to Mr Hughes earlier

as to whether it is a question of vicarious

liabilityor the publication - the unlawful publication

of the matter or whether it is a personal liability

of the Tribunal for its publication?

MR NICHOLAS: If one were dealing with the yicarious aspect,

Your Honour - - -

BRENNAN J: Is one dealing with the vicarious aspect?

MR NICHOLAS:  It seems to be s.s we 3.pprehend the pleading,

Your Honour - it seems to be put on two bases, that the defendants are sued jointly and severall~ Miss Paramore

and the Tribunal. They bring Miss Paramore in as a

C2T60/2/LW 82 7/2/90

Laws(2) (Continued on page 82A)

direct participant in the broadcast. In their

p~ticulars - and I am not sure that a great deal

turns on it at this stage, Your Honour, but in

their particulars which are to be found at page 67,

the way it is put is this - at page 6 7, line 15:

The Second Defendant -

that is Miss Paramore -

participated in a discussion with Jane the Defendant said the word attributed to her -

Then in (b):

(Continued on· page 83)

C2T60/3/LW	82A	7/2/90
Laws(2)

MR NICHOLAS (continuing):  Then in (b):

.The First Defendant authorised the Second

Defendant to participate in the said programme

and she was its agent for that purpose and, as

such, the First Defendant is liable for the words

published by the Second Defendant.

That seems to be, perhaps in the particulars of what is alleged in paragraph 4, namely that on the date

the defendants published this matter. But as we see

it, Your Honour, the action is directed directly against

each defendant. But assume -

McHUGH J:	I may have misunderstood what you said in your opening remarks, but I got the impression that you
were accepting that Miss Paramore was speaking for
the Tribunal.
MR NICHOLAS:	What I want to be quite clear about, with

respect, Your Honour -

M~HUGH J: Yes, well, I want to be clear about it, too.

MR NICHOLAS:  Certainly. We have never contended that she

did not go on air as a representative of the entity,

the Tribunal. And she went on air as the programme

director, a senior position, and she gave information

about the decision. That is one thing, with respect.

It is a very different thing, we say, from it being

said that she went on air as the authorized representative

of some or all of the individual members. That is

all I want to say, with respect, Your Honour, but that

situation is relevant to the defamation proceedings.

Your Honours, there is an example of a matter

considered in Canada recently which is not very far

removed from the situation here, and if I can take

the Court to RE CACCAMO V MINISTER OF MANPOWER AND

IMMIGRATION, (1977) 75 DLR (3d) 720, judgment of the

Federal Court of Appeal of Canada.	It involved a
situation where a publication had been made by a

rep~esentative of that department. It is hard to

summari~e the facts, Your Honour, but I will be as

brief as I can. The headnote is at page 720, and

the first pa~agraph of the headnote may be a conv:nient

way to deal with 1t. ·

The applicant was adjudged by the Courts to

be a member of the Mafia and as a result was

ordered-to appear before a special inquiry .

Prior to the hearin~, a newspaper report quoted the director of information of the Department of Manpower

and Inmigration as saying that the Department must take

the position that the Mafia is a subversive organization.

The appellant made an application to prohibit the special

C2T61/1/LR	83	7/2/90
Laws(2)
MR NICHOLAS (continuing):

--inquiry by any person connected with

the Department on the ground of

reasonable apprehension of bias.	The
application was dismissed at first
instance.	On appeal, held, the appeal

should be dismissed.

Your Honours, at 722 the publication is set out

and the newspaper article referred to, in the second paragraph:

B.M. Erb, director of information
for the Department of Manpower and

Immigration, has confirmed that the

federal Governmenc nas begun deportation
proceedings against Caccamo, now that court

actions have ended.

Your Honours, I need not take you to the next five

paragraphs, but if you would come down the page to

the fourth last of the newspaper article:

Mr Erb said Caccamo would normally have domicile

in Canada, which means that the Immigration

Department cannot deport an irmnigrant after he

has lived in Canada for five years.

But, he said, the act sets no time limit for

immigrants who contravene the Narcotics Act

or who are proved to be subversives.

He said the Supreme Court of Canada ruled last

year that Caccamo is a member of the Mafia and

the Immigration Department just take the view

that the Mafia is a subversive organization.

And then the next paragraph need not trouble Your Honours.

Proceedings were taken to restrain the appropriate

officers of the department from dealing further with

Mr Caccamo's situation and if I can bring the Court

to page 724, the second-last paragraph on that page:

The appellant does not put his case upon any

proof or suggestion of actual "bias" on the
part of Mr Stuart, the Special Inquiry Officer

in question. His case, as I understand it, is
that, not only Mr Stuart, but every other officer

of the Department of Manpower and Immigration

has become disqualified to conduct the inquiry

concerning him because they have become subject to

"the probability or reasoned suspicion of biased

appraisal and judgment" by reason of the alleged statements of Mr Erb, who, like themselves, is

an officer subject to the direction and control of

the Deputy Minister.

Laws(2) C2T62/l/JL 84 MR·NICHOLAS, QC 7/2/90

The yudgment proceeded at 725 where His Honour.

said this, half-way down the page:

--In the first place it should be borne in mind

that the Department is under the direction of the Minister. It follows, therefore, that an inquiry

must be conducted by a member of the Department

that is subject to the direction and control of
the Minister or by a person specially chosen by

the Minister for the purpose. Assuming, therefore,
that the principle of "probability or reasoned

suspicion of biased ... judgment" is applicable to

Special Inquiry Officers conducting inquiries under

the IMMIGRATION ACT (a question concerning which I

express no opinion), as it seemsto me, the link

whereby Mr Erb's alleged expression of views might

be attributed by the public to an officer of the

Department would equally link those views to any other person chosen by the Minister to conduct the

inquiry concerning the appellant. The result is that,

if that principle is applicable as an absolute rule

of law and if the appellant's contention on the facts

is accepted, there is no person having statutory

authority to conduct the inquiry who would not be

subject to such disqualification from conducting

the inquiry concerning the appellant; and the express

requirements of the law for an inquiry would be

frustrated in so far as the appellant is concerned.

And then, His Honour, at the foot of the page, says:

Having said that, I should add, to avoid any

misunderstanding, that, in my view, on the

assumption that the principle of "probability"
or "reasonable suspicion" of bias that is

applicable to the judiciary and certain quasi-judicial
tribunals is applicable to the administrative

officers who are, as Special Inquiry Officers, required

to perform certain tasks under the IMMIGRATION ACT

in accordance with certain quasi-judicial procedures,

a matter that in my view is open to debate, I am

satisfied that it would not come into play on what

has been established here.

As I understand this rather imprecise doctrine,

what is contemplated is not what would be regarded as
a probability or a reasonable suspicion by a person

who is completely ignorant of the particular

decision-making process involved. The fact that

people coming from a -

C2T62/JL	85	7/2/90
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MR NICHOLAS (continuing): If I could pick it up about six

lines down:

- The doctrine would only come into play

where the facts are such as to create such
idea of probability or reasonable suspicion
in the minds of persons who understand the

principle of independence from the executive

upon which our judicial system is based.

So, as it seems to me, assuming that the

doctrine applies to Special Inquiry Officers,
it would not come into play where the facts are
such as not to create a probability or suspicion

if it were not for the fact that the

investigative officers of the Immigration

Branch and the Special Inquiry Officers who

have the function of determining the facts for

the purpose of making deportation orders are

by law under the general direction of the same

Minister. To any person who does understand

that apparently anomalous state of affairs,

the situation, and the only situation, that has

been established in this case, as I understand

it, is that the Department, on its investigative
side, has taken a position or view, that has

resulted in the appellant's case being made the

subject of an inquiry by a hearing officer who

has a legal duty to decide for himself on the

evidence that comes out before him whether the

appellant is, under the statute, subject to

deportation. In my view, no person having any

general knowledge of this particular decision-

making process and how it works would think

that it was prob.able,. or be reasonably

suspicion, that a Special Inquiry Officer would

be deflected from his statutory duty by such a

background to his inquiry.

His Honour, Mr Justice Le Dain, on page 728
was to the same effect. At page 729, Your Honours,

we would only read this:

This statement of Mr Erb, however ill-advised

it might have been, must be read in its

context - both that provided by the article

in which it appears and that provided by the

legislative scheme to which the article

refers - if we are to judge what a reasonable

and reasonably well-informed mind would conclude

from it. As such, it is in my opinion no more

than a statement of why the Department has

instituted deportation proceedings, or in other

words, why an irrrrnigration officer has made a

report pursuant to s. 18 and why the Director

has ordered than an inquiry be held. It is

this initiative on the part of the Department

C2T63/l/FK	86	7/2/90
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to which the statement is directed and

not the result that may be anticipated

from the inquiry.

And then finally, Your Honours, the beginning of

the major paragraph at the end of the judgment: This would suggest to any reasonable and

fair-minded person that the position which the Department has adopted with respect to the nature of the Mafia and Caccamo's

relationship to it is the basis of the

Department's decision that an inquiry should

be held and is not a view that the Department

is seeking to impose upon the Special Inquiry inquiry.

And, we would say, Your Honour, that in a case such

as this it cannot be said the Miss Paramore's views,

or should I say, the reference by Miss Paramore

to the views expressed by the three members whose

decision it was that criticized Mr Laws, can be

sheeted home or should be sheeted home to any of the
other individual members and that that situation is
not worsened by the filing of the defence in

proceedings brought against the Tribunal in respect

of those utterances.

DEANE J: But, Mr Nicholas, if you were to succeed on this

approach which has an undertone of necessity about

it, would there, from your point of view, be any

difference between the order that Mr Justice Morling

made, that is excluding the three people, and an order

that any inquiry be conducted by members of the .

Tribunal who had had no personal involvement with

either the proceedings in the Tribunal or with the

proceedings in the supreme court, or with

Hiss Paramore's statement?

MR NICHOLAS:  We have always taken the position, Your Honours,

that any further inquiry would not involve any of the

original members.

DEANE J: What I was asking you was not about the original

members, but if you were to succeed on this necessity

approach-it could only be to the extent of necessity.

Well now, obviously if you were to succeed and

the inquiry were allowed to go ahead it should be
conducted by peoi?le who had had no personal

involvement with any of the things involved in

the case, that is the Tribunal's inquiry,

Miss Paramore's statement, the supreme court proceedings.

Now, what I was asking you was, would there, from your

point of view,be any difference between an order

that excluded anyone who had had any involvement -

C2T63/2/FK	87	7/2/90
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any personal involvement of any kind - and

an order of the kind that Mr Justice Morling
made that only excluded the three people
who had actually conducted the Tribunal's

proceedings?

MR NICHOLAS: Well, Your Honour, as far as I understand our

position, there are no members who were involved,

other than the three in the way talkeci about.

DEANE J: Well, the likelihood -I suppose it never comes to

this, but it may be of assistance if you could give

an answer to that on instructions.

(Continued on page 89)

C2T63/3/FK	88	7/2/90
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MR NICHOLAS:  I would need to take some instructions,

Your Honour.

DEANE J:	In terms of - - -
MR NICHOLAS:	What the factual situation is?
DEANE J:	- - - it seems to me that if you were to succeed
on some sort of argument of necessity that you
should only succeed to the extent of necessity.
MR NICHOLAS:	I appreciate what Your Honour is putting but,

Your Honour, I would have to get instructions about

that because obviously it depends on what the facts

are.

DEANE J:: Mr Nicholas~ I was not suggesting that you come

back and say what the factual position is, though

for my part I would have no trouble with that,

what I was asking you was would you resist, if
you were to succeed, on a necessity argument the

order of Mr Justice Morling being varied -

MR NICHOLAS:	By including these other people, yes.
DEANE J:	- - - to impose much more stringent restrictions on who could take part?

MR NICHOLAS: I·will give those instructing me a moment,

Your Honour. I have an answer but I will not need

to - our answer, Your Honour, is "No", there would

be no difficulty whatever about that.

Your Honours, there are only a few other matters

that we would put to Your Honours. The situation

arising from the filing of the statement of claim,

of course, really throws up this situation on the

appellant's view, that it does not matter very

much what the defence says, the mere fact that

a statement of claim has been filed, the launching

of the proceedings of this kind throws up the conduct

of Mr Laws in the context of a claim for damages

would be enough, we would say, if my friend was

right, to preclude the members of the Tribunal

from embarking on the inquiry. It just cannot

be right to say that, "Well, the Tribunal ought
to put-on a few holding defences only and get on
with its inquiry and see what happens as a
consequence of that before considering whether

or not to amend by adding defences of justification

and the like".

C2T64/l/ND	89	7/2/90
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MR NICHOLAS (continuing):  We would have thought, with respect,

that conduct of that kind would not find very much

-favour at all, because if my friend is right,

taken not very far, quite plainly puts the members

of the Tribunal, as it has said, in a position that

they have a real interest in the relevent sense to

resist. And this claim, defended or not for the

time being, is one in which there is a damages claim

hanging over the Tribunal's head and quite plainly,

one might think, that the Tribunal members, if they

are going to be infected in the way suggested, would

be having regard to the potential for this claim to

result in a verdict for the plaintiff and that that

consideration alone on the argument would be enough,

we would say, to disqualify the members from sitting

and Your Honours, we would put that it cannot be

correct to suggest that by instituting proceedings
against the entity, one can create a situation which

could not be resolved by permitting an inquiry to

proceed, presided over by a member or members who

had no participation in the matter originally

complained of.

I have indicated to Your Honours our submission

that we submit, with respect to my friend, it is

artificial indeed to suggest that the preferable

step would be to file a holding defence.	The Tribunal
obviously would still have a case to defend,	damages

claim to resist,with the attendant consequences of that.

McHUGH J: What about seeking an order - getting an

extension for time for filing your defence after

the Tribunal proceedings have been finalised.	Why
could you have not done that?

MR NICHOLAS:  Your Honour, we say it does not - - -

McHUGH J: Without putting on any defence at all, but making

an application to the supreme court.

(Continued on page 91)

C2T65/l/CM	90	7/2/90
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MR NICHOLAS:  There would be no difficulty about that

at all, Your Honour, but we find it difficult to see

against us, if you like, how when one is conducting an

inquiry,with the prospect of doing so in mind, that that

would be - we see that not being conduct preferable to

putting on the defence prior to decision. We really see,

in substance, no difference whatever, if one is looking at the question: are the minds of these people likely to

be prejudiced in the way they go about the inquiry.

That is all I wanted to put as to that, with respect.

Your Honours, my learned friend has taken the Court

to the statements on necessity, and we would submit, with

respect, in RAUBER this Court has made it plain that in

the appropriate set of circumstances the necessity
doctrine will operate to prevent a failure of justice or

the frustration of a statutory provision, and it should

here too, if the Court gets that far. In other words,

that the Court takes the view that no members of the

Tribunal, whenever appointed, before or after the

broadcast or the defence, are entitled to sit. To bring

about that result, we would suggest, as Your Honour

Mr Justice Brennan put it this morning, really effectively

sterilizes the function that the Tribunal has imposed

upon it under section 17C. For example, this is the

complaint on behalf of Mr Laws. It is quite apparent

that the Tribunal in due course will be required to

conduct an inquiry into the application for the renewal

of the licence by the licensee 2GB. In the course of

that inquiry the conduct of the licensee and its performance

as a broadcaster during the previous period will come

up for consideration and, suppose for the moment, that

those disturbed by what Mr Laws had to say - let us say,

for example, representatives of the Aboriginal community

were admitted to involve themselves in the 2GB licence

renewal to ask the Tribunal, to press the Tribunal, to

inquire about those aspects of the matter_. rather

compliance with RPS 3 and other matters which would be

plainly relevant to a renewal hearing. The Tribunal

will be bound to undertake the inquiry that will embrace

these matters.

(Continued on page 92)

C2T66/1/LR	91	7/2/90
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MR NICHOLAS:  It is quite plain, with great respect, that it

is under a duty to go ahead with these matters and,

shortly stated, that the necessity doctrine will

enable it to do so.

DEANE J:	One problem about a necessity doctrine here - is
there not something to be said for the view that the party who relies on necessity, to escape from
what would otherwise be a position, at least must
establish what the relevant facts are within its
organization so that first it can be seen -
the extent of the contamination, to use the word
not in a nasty sense - and then, having seen what
the extent of the actual contamination is so that
an order that can be framed which goes no further
than necessity positively requires. Here we are
left, really, with no knowledge at all as to what
happened within the organization.
MR NICHOLAS:	Could I answer it this way, Your Honour.
DEANE J:	It may be that the evidence would have been objected
to but if that had happened you would have at least
offered it.

MR NICHOLAS: Well, there is no evidence. But, Your Honour,

the situation may be satisfactorily overcome when

one is dealing with new appointees or appointees

post the filing of the defence and it gets back to

what I think Your Honour was putting back to me a

few moments ago, that - - -

DEANE J: Except that we do not really know. For all we

know, last week or the week before the hearing,

the whole Tribunal might have met and gone through

the whole thing.

MR NICHOLAS:  I can only respond to that this way, with

respect, that there is no evidence one way or the

other and why would a reasonable person, who may

expect that people appointed to these posts do

their duty -

DEANE J: Mr Nicholas, that really begs the question because

you only come to necessity when you say otherwise

they are all disqualified by ostensible bias.

MR NICHOLAS: Well, Your Honours, as I understand the necessity

cases, the doctrine has been invoked to cut through
the situation because, a fortiori, those who have to

sit are people who have been or would be suspected of

being tainted in any event.

C2T67/l/DR	92	7/2/90
Laws(2)

MR NICHOLAS:(continuing):  So that, assume against us that

everybody is infected in the way suggested, then

nevertheless one or more of them will be required

~b sit in order to carry out what the statute

requires of it. So the adjudicator sitting under

necessity would be assumed to be somebody who would

otherwise have been disqualified.

DEANE J:	Yes, except, assume that all are disqualified by
reason of ostensible bias, it may be that necessity
could operate.if it~be shown that some disqualified by ostensible bias were not actually biased in
any way. It may be if the fact was that they were
actually biased that there would be• no room for
the operation of necessity. It just seems to me
there is something to be said for the view that the party who claims the benefit of a doctrine
such as necessity has to show what the position
is when it is in his knowledge and not in the
knowledge of the other side.wpat the position
really is.
MR NICHOLAS:	Your Honour then is really putting back that

the application of the doctrine really is a matter

for discretion, that there be - we would submit,

with respect, not. The necessity comes about because

there is no room to move otherwise and if~_really,

what Your Honour is putting is that one would do

the best one could to get the best man for the

situation given a generally unsatisfactory . ·

situation -

McHUGH J:  Do you not have to lead evidence to show that it is

necessary that the doctrine not apply?

MR NICHOLAS: 

Your Honour, the way the matter is presented

against us does that for us, with respect, becuase
it is put that the bare membership of this Tribunal
is enough to infect these people and to disqualify

them, all of them, and so we have got to a position

where - - -

McHUG 

That is on one branch of his argument, well, that

s his main argument.

MR NICHOLAS: 

Your Honour, those are the matters that we - - -

McHUGH J: Before you sit down, what do you say about

Mr Hughes's submission about independent jurisdiction,

that is to say that any tribunal or division would

not be exercising independent jurisdiction but

would be exercising the Tribunal's original

jurisdiction? You remember he relied on DIMES's

case?

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MR NICHOLAS:	Yes, I do remember, Your Honour.	We would say

that when one looks at the structure of the legislation

xhose adjudicating on an inquiry are acting independently

that it is a fresh inquiry obviously and at the end

of the day, their decision will be taken to be the

decision of the Tribunal. That is because of the

effect of the statute. Those are the matters that

we want to put.

MR HUGHES:  I can reply in three minutes Your Honour, if

Your Honour wanted to give me that indulgence.

MASON CJ: Yes, Mr Hughes.

MR HUGHES:  Your Honour, my learned friend, in the course of their

submis:ri.orJ.S, has made a very important concession

when he said that Miss Paramore was stating the

substance of the Tribunal's decision and stating the
substance of the matters on which, according to

the document of 24 December, the decision was

founded. Now I need not expatiate upon the

significance of that concession from the viewpoint of
determining the effect of the defences of justification.
Now my learned friend also said that the defence as
filed has nothing to say about the belief of the

Tribunal or of Miss Paramore. With very great respect,

my learned friend is wrong. May I invite Your Honours'

attention to page 80 of the appeal book perhaps

starting at page 79. Under the rules of the Supreme

Court it is ~nCll!llbent upon the defendant, who relies

upon qualified privilege to give particulars and

that was done in this case with. respect to qualified

privilege of common law and under the DEFAMATION ACT.

Turning first to the particulars under the statutory defence of qualified privilege, particular (ii),

after having said in particular (i) that:

The matter complained of related to the

subjects -

matters - of public interest set out above .....

I will come to that in a moment.

(Continued on page 95)

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MR HUGHES (continuing): Particular (ii) said:

The listeners to the Jane Singleton programme

·~···had an interest or apparent interest and

were believed by the defendants to have an interest

in receiving information on these subjects by

reason of their inherent nature and importance.

My simple point is this: that is necessarily an assertion

by each defendant individually and separately that

they believed that the information was accurate,

otherwise they could have no belief that the public

had an interest in receiving it, particularly when - - -

BRENNAN J: Well, that is a novelty in defamation law, is it

not, that a belief that there was an interest in

receiving information is a belief in the truth of that

which is stated?

MR HUGHES:  In the context of this case, with respect,

Your Honour, it must be, because the information, as

has been conceded, is the publication of the decision

of the Tribunal by Miss Paramore and of the reasons

there for. How could anyone believe responsibly that

the public had an interest in receiving that information unless they, the Tribunal and Miss Paramore, believed it to be true? The particulars of public interest which

appear on pages 78 and 79 say that - line 20:

The matter complained of by its terms related

to the following subjects, each of which it will

be contended was of proper and legitimate interest

to the public:

(i) The establishment of radio programme standards

Ynder the federal Broadcasting Act, 1942.

(ii) The duty of the Australian Broadcasting Tribunal

under the Broadcasting Act, 1942 to enforce radio

prograrrnne standards.

(iii)   The decision by the Australian Broadcasting

Tribunal that the plaintiff had breached a radio

prograrrnne standard on a number of occasions.

(iv) The existence of a radio prograrrnne standard

namely Prograrrnne Standard 3.

BRENNAN J: Well, that is asserting the interest as being in

those subject -matters.

MR HUGHES:  Yes, Your Honour.

BRENNAN J: That there was a Radio Prograrrnne Standard, that

the standard prohibits certain things, and that as a

fact the Tribunal have found the standard to have been

breached.

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MR HUGHES:	Your Honour, all I am doing, with respect, and I do not want to take up time with it any further, is
to ask Your Honours to read the particulars of the statu~ory defence of qualified privilege and the
particulars of the common law defence of qualified
privilege in the light of the matters of public
interest that are asserted as the basis of the defence
and, of course, as the basis of the defence of
justification in so far as it rests on public interest.

(Continued on page 97)

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MR HUGHES (continuing):  The only other matter I want to

put to Your Honours is this and it arises

~,~_A.from- the colloquy between Your Honour Justice Deane

- -and my learned friend:  there is no evidence

capable of satisfying the Court that the principle

of necessity has to operate and if I am right that

it is a discretionary principle the party who should

call the evidence is the respondent and what I

would ask the Court to consider doing, if it comes

to the view that necessity may be an answer, the

Court, really, with respect, cannot come to the

view on the evidence that necessity does impel

some sort of abrogation of the relevant principle

of natural justice. But if the Court comes to

the view that it may, the appropriate order would

be to remit the case to the Federal Court so that

the Tribunal, if it wishes, may do that which it

has so far not done, namely present evidence which

it would seek to rely on as justifying the

application of the doctrine of necessity.

BRENNAN J:  I do not follow that, Mr Hughes. What evidence

would the Tribunal then seek to put on in its

interest, do you concede?

MR HUGHES:· · The sort of evidence that I had inferred

Justice Deane was referring to as evidence that

might possibly be called is evidence that to make

the best - can I use this expression, to make the

best of a bad job. There are some members of the less serious than others.

DEANE J:	Or perhaps that there are some members of the Tribunal who, while disqualified by ostensible
bias, are not actually biased.
MR HUGHES:	Yes, Your Honour.
DEANE J:	It could be, but then it may be quite irrelevant.

MR HUG~:. Yes 1 but we should not be put at the risk of

ing to accept, assuming that this question

arises as a result of the Court's judgment here,
an ex parte unproven statement by the Tribunal
that these people whom they nominate for an inquiry

are all right .

BRENNAN J: Let us assume that they say, on further inquiries

that we have made that none of them are all right,

what.... a defence of necessity or the - - -

(Continued on page 98)

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MR. HUGHES: Well, then, in our submission, that forecloses

the possibility of the defence of necessity because
it forecloses the possibility, Your Honour, of the

~pplication of the principle because it is a

discretionary principle and because the facts of

this case are glaringly inappropriate, with respect,

for its application in favour of the Tribunal for

further hearing of the matter.

MASON CJ: Yes, thank you, Mr Hughes. The Court will consider

its decision in this matter and adjourn until -

yes, Mr Nicholas.

MR. NICHOLAS:  Your Honours, I am sorry, we referred to those

regulations. We have now got copies of them.with the

assistance of the Court to hand them to the Court ..

MASON CJ: Well, you might hand them in, I think, if you would.

MR NICHOLAS:	Yes.
MASON CJ:	The Court will now adjourn.to consider its decision.

AT 4.24 PM THE MATTER WAS ADJOURNED SINE DIE

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