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Levy v State of Vic

Levy v State of Vic

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Case Copied 6 March 1997 166 min read

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M42 of 1995

B e t w e e n -
LAURENCE NATHAN LEVY
Plaintiff
and
THE STATE OF VICTORIA

First Defendant

JOHN THOMAS GATES ROBINSON
Second Defendant
ROBERT BRIAN WILBY
Third Defendant
Demurrer

Office of the Registry
Sydney No S109 of 1996

B e t w e e n -
DAVID RUSSELL LANGE
Plaintiff
and
AUSTRALIAN BROADCASTING CORPORATION

Defendant

Case Stated

BRENNAN CJ
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 MARCH 1997, AT 10.17 AM

(Continued from 5/3/97)

_________________

BRENNAN CJ: Yes, Mr Spigelman.

MR SPIGELMAN: Your Honours, yesterday I indicated that I would take your Honours to the judgment of Justice Deane to make good the proposition that he adopted the same broad view, the same scope of the freedom as the majority. Could I do that briefly. We are still in 182 CLR. At page 166 in the middle of the page his Honour indicated the breadth of the test:

It follows that the Constitution’s implication of freedom of political communication and discussion is applicable to confine both.....legislative powers -

and also the common law. But the identification of the scope of the freedom is no different to the majority’s. At page 177 his Honour repeated the same sort of scope. Again, in the middle of the page:

However, it assumes a different dimension within the area to which the constitutional implication is directed, namely, that of statements which constitute, or form a relevant part of, political communication and discussion.

That is why he agreed with what has become paragraph (a) of the pleadings and the one that we did not abandon. He did agree with that proposition even before he saw the joint judgment and had to add his addendum. So that if one goes to the order again at page 208:

(a) discussing government and political matters -

That is in answer to question 1. Is the breadth of the freedom which he understood and the joint judgment understood to have been the identification of the breadth of the freedom in the earlier cases?

GUMMOW J: This notion of “government and political matters”, in the first Uniform Tax Case, Chief Justice Latham said that virtually any activity may become a government function or matter.

MR SPIGELMAN: I am not here to understate the breadth of what is capable of being within the area of political discussion, however, the facts of this case are such as on any view to be at the heart of such discussion, admittedly in New Zealand, but that is a separate issue, and obviously there are areas where people may assert that they are discussing matters of government and political significance but in due course the courts will find they do not, in fact, do so. The best example obviously is where it is asserted that some area…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1997] HCATrans 67
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered a dispute between the State of Victoria and Mr. Levy concerning the validity of certain provisions of the *Drugs, Poisons and Controlled Substances Act 1981* (Vic). Mr. Levy had been charged with offences under this Act, and the core of the dispute revolved around whether these provisions were constitutionally valid, particularly in light of potential inconsistencies with Commonwealth legislation and the implied freedom of political communication.

The central legal issues before the High Court were whether the Victorian Act, in its application to Mr. Levy's alleged conduct, was invalid by reason of inconsistency with the *Therapeutic Goods Act 1989* (Cth) or the *Customs Act 1901* (Cth), pursuant to s 109 of the *Constitution*. Furthermore, the Court was required to determine whether the impugned provisions of the Victorian Act unduly burdened the implied freedom of political communication protected by the *Constitution*.

The Court's reasoning involved a detailed analysis of the scope and operation of both the Commonwealth and Victorian legislation. It considered the legislative purpose and effect of each Act to ascertain whether a state of inconsistency existed under s 109. Regarding the implied freedom of political communication, the Court applied established principles, assessing whether the Victorian provisions were reasonably appropriate and adapted to serve a legitimate purpose compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. The Court examined whether any burden on political communication was an unintended consequence of laws enacted for other purposes, and if so, whether that burden was reasonably proportionate.

The High Court ultimately found that the provisions of the *Drugs, Poisons and Controlled Substances Act 1981* (Vic) were not invalid by reason of inconsistency with Commonwealth law, nor did they unduly burden the implied freedom of political communication. Consequently, the charges against Mr. Levy could proceed under the Victorian Act.

Orders