Levy v State of Victoria

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

BRENNAN CJ
DAWSON J
TOOHEY J
GAUDRON J

McHUGH J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 6 AUGUST 1996, AT 10.18 AM

MR A.R. CASTAN, QC: May it please the Court, I appear with my learned friends, MR G.J. McEWAN, MR .B.A. KEON-COHEN and MS K.M. PETTIGREW, for the plaintiff. (instructed by Garland Hawthorn Brahe)

MR D. GRAHAM, QC: May it please the Court, I appear with my learned friend, MR D.G. COLLINS, for the defendants. (instructed by R.C. Beazley, Victorian Government Solicitor)

MR L.S. KATZ, SC: If the Court pleases, I appear for the Attorney‑General for New South Wales who intervenes in the interest of the defendants. (instructed by the Crown Solicitor for New South Wales)

BRENNAN CJ: Mr Castan?

MR CASTAN: If it please the Court, may I say at the outset that in this matter in the course of the exchange of the outline of submissions between the parties that were ordered, some questions were raised as to the appropriateness of the kind of material that should be placed before the Court on a demurrer and after some discussion with my learned friend, it has been agreed that we would go forward and if and when a question arises as to the appropriateness of referral to material, the matter can be perhaps determined in accordance with the usual rules that are applicable in the case of a demurrer, we think probably, but dispute as to that matter can be avoided. I mention it in that context because it may arise.

Your Honours, the demurrer comes before the Court in circumstances arising out of conduct undertaken by the plaintiff who, along with numerous other persons, was engaged in acts of political protest and in a manner designed to attract the maximum attention and publicity to their cause. It was undertaken concerning an issue which was and remains of political significance. It was conduct which was the form of communication which enabled the mischief to which the plaintiff and others were seeking to draw attention to be exposed and to be exposed in the most effective way which would yield significant publicity and attention to the matter in issue, a way which inevitably from its nature attracted the attention of the media, yielded material - one is tempted to call it evidence; it is not evidence in the strict sense - but material, specimens, that become a vivid demonstration of the mischief to which the plaintiff and others were seeking to draw attention and yielded material being specimens in the particular case being injured game birds or illegally shot game birds which dramatically exposed the mischief to which the plaintiff was seeking to draw attention and which was effective in attracting media attention and considerable public controversy.

The relevant regulations which prevent the plaintiff and the others concerned from entering into the waters of the lake where the principal shooting of birds takes place effectively silences that message. It is self‑evident that it is still possible for the plaintiff and others to communicate by other means at other times in other places by making statements and so on, but what the plaintiff and others cannot do is make effective protest that attracts media attention and that dramatically highlights the mischief to which they seek to draw attention.

BRENNAN CJ: Do we take it that there is no challenge to the validity of the regulations so far as the regulation-making power is concerned?

MR CASTAN: No, your Honour, and I understand that has been separately tested and dealt with, I think, in the Victorian Supreme Court.

KIRBY J: It has been or will be?

MR CASTAN: It has been.

KIRBY J: You are content with the outcome of that test? Is that the answer to the Chief Justice?

MR CASTAN: Yes, your Honour. It has been tested and no appeal has been pursued from that test and no challenge to the validity of the regulations is made on this occasion, so that what concerns the plaintiff in being prosecuted for a regulation that prohibits the plaintiff from actually going and, in particular, obtaining the specimens of the birds that are injured or dealt with cruelly, as the plaintiff sees it, and then both being seen to be doing that on television, being seen to produce the bird that is in a state of suffering in front of the television and, in turn, taking those birds to a veterinary officer who is physically present, or, otherwise dealing with a bird in a way which demonstrates care and concern for the bird has had a dramatic impact on the whole issue, that has become a relevant political issue in the State of Victoria and elsewhere, which, in fact, has become a significant political issue in other States.

KIRBY J: Does this imply that you are suggesting that the true purpose of the regulation was to prevent this expression and demonstration and to that extent you challenge the assertion that its purpose was for the safety of the public?

MR CASTAN: We do not challenge the assertion, because the challenge of the assertion is something that itself may - perhaps I do not need to go into that. We do not challenge the assertion, but we say whether that be the purpose or no, the effect of the regulation is to, in fact, stifle the effective communication of what is the really dramatic way of demonstrating what is wrong with this particular practice in the eyes of the plaintiff, and we would say has been effective and we would say the Court is well aware of the dramatic impact of television. We have referred in our outline of submissions that was filed early in July to examples, and one only needs to refer to an example perhaps known to the members of the Court of the famous case in Canada of the baby harp seals that were filmed being beaten on the head by clubs as the means of obtaining their fur, which ultimately led to outcry.

There is any number of examples where television pictures of cruelty of one kind or another, cruelty to humans in many cases, has been dramatically exposed by television. One only needs to refer to recent events in Bosnia in that context. The impact of television depiction of the actual perpetration of cruelty, whether to humans or to other living creatures, has a dramatic impact that is totally different than saying, “This is not a good idea”, than the philosophical debate about these issues, which undoubtedly is also engaged in, but does not engage the public and does not really engage those whose business it is to make laws about these matters.

BRENNAN CJ: What are the legal problems?

MR CASTAN: The legal problem is whether this regulation is appropriate and adapted to the purpose of - if it be said the purpose is safety given that it has the effect of stifling this particular form of political communication or reducing it to a form of communication, but without that dramatic impact, or whether ‑ ‑ ‑

DAWSON J: Appropriate and adapted to what?

MR CASTAN: Appropriate and adapted for the purpose of securing safety in the environment on the lake where duck shooting takes place and given that there is a question of that kind that arises ‑ ‑ ‑

DAWSON J: Why does that question arise?

MR CASTAN: If the law is, as a State law, a law which is for a particular purpose - the subordinate legislation is said to be for a particular purpose - and if the law also, as we contend, is a law which impinges on or inhibits the effective political communication, then, in our respectful submission, there is a limit on the extent of State legislative power to restrain that kind of political communication. The boundaries of - - -

DAWSON J: Where does that limit come from?

MR CASTAN: That limit comes from three sources. They are outlined in our outline of contentions. I omitted to say that there is a document that has been filed, and I trust that your Honours have it; a document which is a document filed on Friday which was - - -

DAWSON J: Yes. Perhaps you could just list them shortly now for us.

MR CASTAN: Yes, the three sources are the ultimate sovereignty of the people of Victoria as itself the source, which ultimately limits legislative power within the State, the Commonwealth Constitution secondly, and the Victorian Constitution thirdly. They are the three sources, we would respectfully say.

DAWSON J: Well, you will develop that, I suppose, will you? You will develop those, I suppose?

MR CASTAN: I will develop them. So that, we contend that there is the limit. The limit to the way in which States can legislate is a limit which, in its ultimate impact - and I will develop the way in which one gets to the point which I have commenced but the limit is such that in its manifestation or its effect in the particular case with which we are now dealing, it is necessary to determine whether regulations which actually stifle or prevent the effective communication in the way that actually has an impact - - -

DAWSON J: I gather what you are saying is that there is a limit on the limit. In other words, if the legislation is for the safety and protection of persons, it is permissible, even on the premise - - -

MR CASTAN: As a general principle, legislation for the safety of persons is a permissible topic for State legislation.

DAWSON J: For restricting freedom of communication.

MR CASTAN: But it is not permissible to restrict freedom of communication unless it is the only, or the only appropriate way to do that. If there is really a question of safety then, ultimately, there is a question of whether there is a balance struck between the necessity to procure safety - assuming that is the real purpose of the regulations - and the impact on that communication.

DAWSON J: And it is for the Court to decide what is appropriate rather than the legislature.

MR CASTAN: Ultimately.

DAWSON J: Because of the sovereignty of the people.

MR CASTAN: Ultimately yes, your Honour.

TOOHEY J: Does the argument turn upon the fact that the regulation does not apply to shooters and applies to non‑shooters? I mean, is that the distinction which is said to give rise to it being not reasonably adapted to the purpose of safety?

MR CASTAN: That is one of the reasons. What we would say in response to the particular reasons why it is not adapted, is that it does not apply to shooters themselves. It does not set any criteria for safety. It does not say, “Well, persons who are in the vicinity during these particular episodes shall behave in the following ways”. Regulation 6 does. It says no person should go within five metres of a shooter and one can see how that is relevant to a safety issue and no shooter can go within five metres of a shooter unless they are in the same boat and so it deals specifically with that issue.

Equally well, the regulation dealing with non‑shooters may have said that no person shall undertake any conduct on the water which involves seizing the bird of a shooter or involves interfering with a shooter or involves conduct which is prejudicial to public safety. One can imagine any number of ways in which one could formulate a regulation which was specifically focused on the safety issue but did not impinge on or only impinged to the absolutely necessary extent on the form of communication; the significant public event that has developed, has taken place on the opening of the shooting weekend because a bird rescuer has been present.

BRENNAN CJ: What if the regulation had said, “No person shall on a hunting area place himself or herself in a position in which that person might, however accidentally, be shot”?

MR CASTAN: One would, with respect, perhaps be able to formulate that perhaps slightly differently than your Honour has formulated it but, in essence, if the regulation was in some such formulation, one could imagine it being appropriately adapted to securing the safety issue. It would be clearly focused on the safety question.

BRENNAN CJ: And what would be the difference between such a regulation and the regulation here in issue?

MR CASTAN: Because this issue is not to do with people being shot. There is no suggestion, as we understand it, and we do not understand there is any suggestion at any level that, in fact, people have been shot or are likely to be shot.

TOOHEY J: Well, you would breach the regulation, I suppose, by entering upon the prohibited area even if no shooting was taking place at the time.

MR CASTAN: Even if no shooting was taking place, or even if shooting has stopped or was taking place but is not at that moment, or even if it is continuing but in some other direction because the birds are now flying over to the left, but the rescuers go to the right where the birds were and go to rescue a bird which is now in the water, the shooters now are directed at a totally different flock of birds in a totally different direction. There are a whole variety of circumstances where one can conceive a potential danger but, equally well, there are a whole variety of circumstances where this highly public exercise can take place without any danger whatsoever.

KIRBY J: Well, this suggests that your answer to my earlier question is that you do challenge the assertion that this regulation is for the protection and the safety of the public. You say that is just the dressing up of it, but the reality is to stop you exercising your powers or entitlements of expressions?

MR CASTAN: We say that is certainly its effect. We, perhaps, are slightly at odds as to purpose and effect, but we do not want to get into an issue about whether we can challenge the purpose, whether we are involved in a challenge to the purposes of the Governor in Council and so on. The fact is that its effect is not solely, whatever its purpose might have been, its effect in the way in which it is framed is not to achieve that purpose. It does, in fact, achieve a wider purpose and it is not adapted just to the achieving of safety given that there is on the assumption - which I will come back to, of course - the assumption that there is a relevant communication issue, a relevant political communication that is to be protected or that by reason of which - I do not want to express this wrongly. There is a relevant communication and by reason of a limitation of power that communication cannot be interfered with.

Now, because there is a limitation of power - and I will come back to the basis of that - we respectfully submit that the limitation of power operates so as to limit the kind of regulation that can be made in circumstances where there is a significant issue of political communication. So, it is our respectful submission that once one has an environment, a context, a situation in which there is a political issue being actively debated or demonstrated, or the subject of protest, which is what is occurring here, then it is necessary, ultimately, to determine whether there is some limit on the power of the State legislature to pass laws, or, in this case, subordinate legislation, which has the effect of interfering with that political communication.

Now, that raises, as Justice Dawson has properly put to me, what is the source of the limitation that would have that effect, and I put in summary three bases of that restriction. The reason that we put at the outset a concept of ultimate sovereignty in response to your Honour, is because this question of limits on State power is ultimately tested by taking the matter to an extreme case. If the State Parliament passed a law, to take the ultimate extreme case, passed a law that no person could communicate publicly or print any newspaper or make any statement opposed to the government of the day, either at election time or perhaps at any time, in our respectful submission, ultimately, this Court would say that that law is not a law which the State Parliament can enact.

DAWSON J: On the basis of the sovereignty of the people?

MR CASTAN: Yes.

DAWSON J: Why?

MR CASTAN: Because ultimately the Victorian Constitution or any State Constitution exists, including its power to amend itself, subject to some outer limits. We would respectfully submit it cannot be ‑ ‑ ‑

DAWSON J: Why does it?

MR CASTAN: Because, your Honour, it is part of the form of government that exists in this country and in this country, if the Parliament legislated to abolish elections to appoint the current premier for the time being as premier for life, to abolish all ‑ ‑ ‑

DAWSON J: Why should it not?

MR CASTAN: If it did, there would be two choices: either it would be expected that the people would be ‑ ‑ ‑

DAWSON J: Why can it not?

MR CASTAN: Why can it not?

DAWSON J: Yes, not why should it not be.

MR CASTAN: It cannot because ultimately it only exists as the repository of the will of the people of Victoria as a whole.

DAWSON J: But the will of the people is expressed in the Constitution.

MR CASTAN: That is correct, your Honour, as enacted ‑ ‑ ‑

DAWSON J: If the Constitution gives it power to do that ‑ ‑ ‑

MR CASTAN: There is a circular argument involved in the way in which your Honour has just put that proposition to me. The Constitution itself, the State Constitution, is capable of amendment by the Parliament. The Parliament acts as the representatives of the people under the Constitution. If those representatives take unto themselves to cease to be representatives of the people by enacting an amendment to the Constitution that abolishes the Parliament or turns the Parliament into a secret Star Chamber or some other kind of body or that appoints the premier for life or that abolishes all political communication - criticism of the government, let us say, or criticism of a minister of State - such a law is not a valid law, we would say, because those representatives, those persons who are representatives, are not carrying out that task which they were charged ‑ ‑ ‑

DAWSON J: Why are they not? They were elected to do what they thought was fit.

MR CASTAN: No. With greatest of respect, they are not elected to extinguish the system by which they became elected.

DAWSON J: Why not, we have had the abolition of, for instance, one House of Parliament?

MR CASTAN: Yes. I am not saying that there is not a wide range of possible ways in which they could legislate, including amending the Constitution. I am not suggesting that there is not a very wide range of scope for what might fall within the concept of - a reflection of the sovereignty of the people but, ultimately, if we get to a point where the only recourse of people is to take to the streets, if we get to a stage of what might be termed, as it was termed in Germany in the 1930s, a legislative coup d’etat, then there is two possible remedies available to the people. One is to take to the streets in that ultimate environment and the other is this Court and ultimately, in our respectful submission, this Court is the safeguard of State Constitutions.

DAWSON J: You assert that, but why?

MR CASTAN: Because that is what those people are, because the ‑ ‑ ‑

DAWSON J: No. They put their faith in the democratic process, not in the Court.

MR CASTAN: Again, your Honour has precisely put it, “in democratic process”. So their charter, their powers, including the power to amend the Constitution, is one of amending it in accordance with democratic process. The people who put their faith ‑ ‑ ‑

DAWSON J: Yes, and once they have done it according to the democratic process, that is the result. It does not mean the democratic process does not envisage the destruction of itself, but if one puts one’s faith in it, that is unlikely to happen.

MR CASTAN: With the greatest of respect, your Honour, faith is put in the democratic process, not in the usurpation of the democratic process.

DAWSON J: That is nonsense.

MR CASTAN: In our respectful submission, it must be so as ultimate proposition. It may be said the outer limits of when that would occur will be only in the extreme circumstances. It may be said, well, what would be the environment in which that would occur, but saying, if I may so with the utmost of respect, that the people who put their faith in the democratic process is but a faint protection, or a faint expression of good will in circumstances where that faith is betrayed.

DAWSON J: That is using emotive language and, no doubt, one can imagine circumstances which are extreme, but the whole point of the democratic process is that.....do not arise because of the nature of the democratic process. You put your faith in the representatives whom you elect, not in a court whom you do not elect.

MR CASTAN: Yes, and in fact if those representatives betray that faith - your Honour, there are Parliaments, not in this country, although in some circumstances, in some environments, there have been some situations in which the democratic processes within the States have been, one could fairly say, appeared to be at least at risk. Certainly there are some countries familiar to us where there are the forms of democratic process where there has even been their functioning democratic process.

GUMMOW J: Why do we have to worry about them?

MR CASTAN: I only put it ‑ ‑ ‑

GUMMOW J: I think at the bottom, Mr Castan, what you are doing really in a way is turning this notion of sovereignty into some natural law concept, and references to what happened in Germany in the 1930s and so on is consistent with that and consistent with development of natural law philosophy after 1945 and the writings of Gustav Radbruch and such people as, in effect, a restraint upon popular sovereignty. In other words, the people are not allowed to be wicked.

MR CASTAN: They are allowed to be wicked but their representatives are not allowed to cease to become their ‑ ‑ ‑

GUMMOW J: But they may be suborned into voting for these people. They may do so.

MR CASTAN: I am sorry, I did not catch that.

GUMMOW J: They may be suborned by one means or another into voting for these unmeritorious representatives who do these unmeritorious things.

MR CASTAN: But they are not just unmeritorious things. What we are discussing is the destruction of the very system which ‑ ‑ ‑

GAUDRON J: Of representative government. What you are talking about is that a Constitution which is predicated on representative government is one which requires the maintenance of representative government.

MR CASTAN: Precisely, your Honour, and if there is ‑ ‑ ‑

TOOHEY J: Well, you have been drawn into this, of course, by putting ultimate sovereignty as the first of your three grounds. The answer may lie simply within the language of the Victorian Constitution itself, either in express terms or implications to be drawn from the Constitution.

MR CASTAN: Yes, and we rely on all three and I was not intending to spend hopefully too much time on the broadest proposition but we say ‑ ‑ ‑

GUMMOW J: Well, they seem a long way from these regulations. That is the problem, Mr Castan.

MR CASTAN: Yes, but if it be ‑ ‑ ‑

GUMMOW J: Now, Mr Katz, for example, says in his submissions that in the United States the First Amendment would come nowhere near this.

MR CASTAN: Well, in our respectful submission ‑ ‑ ‑

GUMMOW J: You may be right or may be wrong. One has to get down to some specifics, it seems to me. That is the way the common law works. Grand abstractions tend to be misleading, actually.

MR CASTAN: Yes, but I was asked what are the bases on which it is said that there is any restriction at all on the Victorian Parliament and I said there were three. I have outlined what the first is.

KIRBY J: Could I just ask you on the first, what is the state of the authority of the Court. Some of the Justices have referred to the sovereignty of the people or in direct or indirect ways. Perhaps it would be helpful just to know, to finish this point, where the authority lies.

MR CASTAN: Well, the particular references which I would give to your Honours in relation to the concept of legal sovereignty now residing in the people, at least it certainly was expressed that way in the Commonwealth context, was in the judgment of Justice McHugh in McGinty’s Case 134 ALR 344 and at page 349 also in the judgment of Justice McHugh and in the same case at pages 378 to 379 in the judgment of Justice Gummow.

KIRBY J: It began, did it, in the Nationwide Case? The history, I suppose, is the original notion of the Imperial Act and the Australia Act, then the search for a new grundnorm and then the proposition in the Nationwide Case, and since then it has been picked up by other Justices. Is that some sort of broad question?

MR CASTAN: Can I give your Honours there some of the earlier references as to the derivation of representative government as it was there put from the people. It is in a judgment of your Honour the Chief Justice, page 47 in Nationwide 177 CLR 1 at 47, in the judgment Justice Deane and Justice Toohey, page 70 in Nationwide, in the judgment of Sir Anthony Mason in ACTV 177 CLR 106 at 137 to 8.

KIRBY J: Is there a thread running through these references as to how they are used from the point of view of legal principle?

MR CASTAN: They are used in these earlier cases, in Nationwide and Australian Capital Television, your Honour, in the context of deriving the notion that representative government is inherent in the Commonwealth Constitution and that that is derived from the people.

DAWSON J: How is it derived from the people?

MR CASTAN: It is derived because the people are the source of ultimate sovereignty. The people are - - -

DAWSON J: But that is only in a grundnorm sense; that if they seek to overturn the situation by one means or another, they can ultimately. The real distinction, of course, is the distinction drawn by Justice McHugh in McGinty’s case by reference to Bryce. But with a rigid Constitution, ultimate sovereignty does not rest with the Parliament, because Parliament’s powers are restricted. The ultimate sovereignty rests with the people in the sense that they are the only ones who can amend the Constitution. That, of course, has no application in a situation such as you find in Victoria, where the Constitution is not a rigid Constitution. And it is absolutely not to the point to talk of grundnorm situations, because they do not help.

MR CASTAN: With the greatest of respect, your Honour, Justice McHugh’s judgment in McGinty specifically adverts to the Australia Act and puts the proposition in terms that since the Australia Act sovereignty in Australia resides with the people.

DAWSON J: Yes, it resides with the people because you have a rigid Constitution, which means it cannot, because there are divided powers - and that means that it cannot reside in the Parliament - ultimate sovereignty. It resides ultimately in those who can amend the Constitution, according to the Constitution, and those are the people. That is what he is talking about.

MR CASTAN: But it is circular - if I can say with respect, it is totally circular to say that since the representatives themselves can amend the Constitution in a State context, therefore sovereignty - - -

DAWSON J: But it is not a rigid Constitution it is not one of divided powers, and therefore there is a different concept of sovereignty there.

MR CASTAN: Yes. Well, we would respectfully submit that that is much too - - -

DAWSON J: What Justice Kirby is asking you about is about legal concepts, not political concepts, which is what you are talking about when you revert to the sovereignty of the people.

MR CASTAN: No, your Honour, I am talking about a legal concept, at least since 19 - since the Australia Act.

DAWSON J: Well, what is the legal concept?

MR CASTAN: I am sorry, your Honour?

DAWSON J: What is the legal concept that you are putting?

MR CASTAN: The legal concept is that ultimate sovereignty in respect of the Australian political system - by which I include both the Commonwealth and the State Constitutions - resides with the Australian people. The means by which the Australian people would express that sovereignty in the State Constitution is ultimately, we would respectfully submit, through this Court manifesting a restraint on laws which purport to undermine that ultimate capacity of the people to have their own representatives operate in open Parliament, in a democratic system. Now, I was giving the references - - -

DAWSON J: So that you have a democratic system which only goes so far and when the representatives of the people reach a point which this Court considers to be too far, it steps in and exercises the ultimate sovereignty on their behalf. That is what you are saying, is it not?

MR CASTAN: I am saying that ultimately this Court would determine that those representatives were no longer acting as representatives of the people.

DAWSON J: Yes, I understand what you are saying.

BRENNAN CJ: Now, you have taken us I think to ACTV and you have given us one reference there, 137 to 138.

MR CASTAN: Yes. I was going to go on with Justice Dawson at 184 to 185, Justice McHugh at 230; in Theophanous Chief Justice Mason at 137, Justice Brennan at 149, Justice Deane at 172.

BRENNAN CJ: That is 182 CLR, is it?

MR CASTAN: I am sorry, yes, 182 CLR 104, and the other references in McGinty I have given.

BRENNAN CJ: Is there anything in Stephens?

MR CASTAN: I think not on this question of derivation of representative government from the people, not on our table.

KIRBY J: Does that lead to this conclusion, whether it is based upon section 128, the power to amend the federal Constitution or the Australia Acts or just on an evolution of history, that the current authority of the Court is that as a matter of legal principle the ultimate sovereignty in this country, federal and State, rests on the people of this country?

MR CASTAN: Yes, your Honour, that is our submission.

KIRBY J: Is there a contrary expression of opinion in recent authority in the Court?

MR CASTAN: I think not.

KIRBY J: I mean, the orthodox view was that sovereignty derived through the Imperial Parliament and was devolved on the legislatures of this country.

MR CASTAN: But I do not think that there is any differing from the view most recently summarised by Justice McHugh in McGinty analysing the difference that has developed as a result of the Australia Acts and the current position, given the incapacity of the Imperial Parliament to now make amendments to State Constitutions.

Can I hand to your Honours a table which we have had prepared which, perhaps with some hesitation, we would hope might be of assistance to your Honours which seeks to analyse the eight cases by reference to a series of issues, concepts or principles. I say “with some hesitation” because it is a table and it is a summary and it is subject to all of the potential deficiencies that doing it in this way might suffer, but my learned junior, Ms Pettigrew, has in stalwart fashion pulled together what we hope are all the references on all of the various conceptual notions that underlie the eight cases and in due course, in considering this and perhaps other cases, the Court might find this a useful means of accessing the references and I am tempted to say a monumental work, but it is from that source that I gave your Honour the answer to the question put to me, appearing as the fifth of the categories there summarised in a very brief way.

BRENNAN CJ: What are the ticks and crosses? Are they for and against?

MR CASTAN: I am sorry, your Honour. Yes, they are. A tick means that that is a view expressed in favour of that particular ‑ ‑ ‑

TOOHEY J: Are we allowed to calculated how many we each get?

KIRBY J: These are not ticks of approbation but ticks indicating the Justice’s views in your submission?

MR CASTAN: No, they represent a positive view concerning that particular concept or proposition as distinct from a negative view. Occasionally your Honours will see question marks and some, on analysing these, have thought that some of the crosses or ticks should really be a question mark. Being a summary, it has some - it is not always easy to ‑ ‑ ‑

KIRBY J: Does this schedule show how we got from the implications affecting the Commonwealth in a federal Constitution to suggested implications affecting the State?

MR CASTAN: It does. The second of the categories seeks to deal with the way in which Commonwealth freedoms flow to the States and flow through. We would suggest that some of the crosses under McGinty are perhaps an overstatement of the position in so far as one can express the positions of the members of the Court in this kind of way. But yes, it does deal with that particular one. That is the second category on the table. Your Honours will see the references and the flow of development of doctrine if one followed through those particular references. So that we hand this up only because it is often difficult to track through what has happened in a short period of years in this interesting field.

Your Honours, can I turn to the question of the Commonwealth Constitution as a source of the restraint on power. Before doing that, perhaps I should say by way of a preliminary comment concerning the Commonwealth Constitution that I have been expressing what we put on behalf of the plaintiff in relation to the conduct that is impeded by the regulation in terms of a limitation of power in the Victorian Parliament. I have not put it in terms of existence of what might be termed a free‑standing freedom. There is controversy in the views of the Court as to the existence of the freedom as a free‑standing or self‑elevated freedom and controversy about the notion of representative government, whether it is merely something that is implied in a particular section or whether it is an underlying doctrine, an overarching doctrine, whether it has come from the top down or the bottom up, as Justice McHugh put it. All we need to put for the present purposes for this case is that there is a limitation on the power of the Victorian Parliament ‑ ‑ ‑

DAWSON J: You will need to go further than that for my purposes. I cannot understand the nature of the limitation unless I know its source.

MR CASTAN: Yes. I was about to turn to the second of the sources. Your Honour asked me that question earlier. I summarised them. The first was the ultimate concept of the ultimate sovereignty of the people. The second I now turn to is the Commonwealth Constitution. Now, we respectfully submit that the institution - the Commonwealth Constitution itself sets up institutions of government. Those institutions, whether it be section 1, vesting the legislative power of the Commonwealth in the Parliament and section 51, enabling the Parliament then to make laws on topics and 52 and others, and then have both vested legislative power in a particular institution and have said, or provided for, the making of laws concerning particular fields of operation by that Parliament.

Equally, section 61 to 64 and following constitute or vest executive power of the Commonwealth in the Governor-General. Ministers of State are dealt with in section 64. Equally, Chapter III deals with the constituting of a judicial arm and vests a judicial power in this Court and the other federal courts. In setting up those institutions those sections which create those institutions carry with them certain fundamental concepts. When one finds sections such as section 1 which speak of the vesting of the legislative power of the Commonwealth in the Parliament the word “the Parliament” carries a meaning that is not made explicit in the Constitution but which means a Parliament of the kind that has developed over 500 hundred or more years of English history.

DAWSON J: You mean the Parliament of the Commonwealth, not for the States.

MR CASTAN: Yes, the Parliament of the Commonwealth. I will follow through the States, your Honour. If we look at the Commonwealth, that Parliament, having been constituted in section 1, is a Parliament that, to take another example, must sit in open session. The word “the Parliament”, we would respectfully submit, as a matter of construction or as a matter of underlying principle, whichever way one expresses it, is a Parliament ‑ ‑ ‑

KIRBY J: The House of Commons in England met in closed session during the war on a number of occasions.

MR CASTAN: Yes, it did. No doubt, the Commonwealth Parliament did, in some defence situations and I am conscious of that and it does not undermine the concept I am putting. If the Parliament - to take again the extreme case - were to - if this Court were to be faced with the question whether the Parliament could enact a law which said, “The Parliament will henceforth not sit in open session and will be closed and you will find out what the laws are after we make them, if we choose to let you know what they are.” That would not be, we would respectfully submit, a Parliament in the sense that it is constituted in section 1 and it would not be the making of laws in the sense that section 51 contemplates?

DAWSON J: Why not?

MR CASTAN: Because, as a matter of pure interpretation, we would say, putting it at its minimum, that is not what those words mean construed in the Australian Constitution.

DAWSON J: Why do they not? I mean, it is all a matter of assertion on your part. Why do they not?

MR CASTAN: I say it because the word “Parliament” adopted in 1901 and the word “Parliament” given meaning now in the context of a Parliament which has sat for 95 years, has a meaning. It is not an abstraction.

DAWSON J: It does not have a meaning of a body which has to sit in open session. It has been pointed out to you that there are occasions when it does not.

MR CASTAN: Yes, but I deal with ‑ ‑ ‑

DAWSON J: The fact that it is undesirable that something should happen does not mean that it is unconstitutional.

MR CASTAN: In our respectful submission, not just because it is undesirable. It is because that it not what is meant by the Constitution when it speaks of the Parliament, and when it speaks of the High Court, it assumes that the Court will act judicially and when it speaks of federal power being vested in other courts, it assumes that those courts will act judicially. When it constitutes the Executive and speaks of Ministers of the Crown becoming members of Parliament, it means that they will be responsible to the Parliament and it would not be open to the Parliament to pass a law saying, “They’re called responsible ministers, but nobody told us what that word ‘responsible’ means.” I am not sure the word “responsible” is in section 64:

The Ministers of the Crown who must take a seat within three months.

So nothing is said about that. “So we’ll pass a law again” - to take a communication issue - “We’ll pass a law that says that any person who criticises a Minister of the Crown, who’s a very important person, will be put in gaol for criticising him.” In our respectful submission, this is not just a matter of saying this is desirable or undesirable; this is a matter of a fundamental meaning of what these terms are in the Constitution, the same way as one, as has been said by this Court both recently and, of course, many times earlier, there is an assumption about the continued existence of the State as entities as was said in Melbourne Corporation. There are all sorts of assumptions or inferences to be drawn. One may draw them because of a matter of pure construction. One may draw them because they underlie the very fabric of what has been done, of setting up a Constitution and setting up institutions.

DAWSON J: If you want to posit some overarching principle to adopt your term and then to interpret everything in the Constitution in accordance with its requirements, you can do anything you want. It is a question of what overarching principle you want to posit. It is the Constitution itself which sets out the principles which we apply, not something which is over and above it by which we judge the meaning of the Constitution.

MR CASTAN: May I respond to that by dealing with the way in which your Honour dealt with the Australian Capital Television problem case, and your Honour also most recently dealt with the Langer Case. Your Honour interpreted the words in section 24 as meaning informed choice.

DAWSON J: Precisely. One goes to the Constitution not some overarching principle. One sees that the Constitution requires elections and elections involve the notion of a freedom of choice.

MR CASTAN: With the greatest of respect, I would beg to differ with your Honour. With the greatest of respect, they do not. With respect, what your Honour undertook was a process of interpretation and your Honour implied, though either explicitly or implicitly, an underlying principle of interpretation. In choosing to say open elections, informed elections, your Honour was applying a principle of interpretation.

DAWSON J: An election involves a choice; at least one understands that.

MR CASTAN: Elections in some countries ‑ ‑ ‑

DAWSON J: But a Parliament does not involve open session, or may or may not involve.

MR CASTAN: Your Honour, what I seek to put to your Honour is that we are really debating here whether the - well, whether you call them underlying or overarching - assumptions that are inherent in these governmental concepts are made explicit by members of the Court when they make choices or interpret words, or whether they are left as implicit, unexpressed, and with the greatest of respect, there is an unexpressed or silent premise in your Honour’s interpretation in those cases. Your Honour, in choosing informed election, is making a choice between informed election, the word “election” meaning informed choice or uniformed choice. Something motivates your Honour to choose ‑ ‑ ‑

DAWSON J: Yes, the words of the Constitution.

MR CASTAN: But the words do not tell us whether they are an informed choice or uninformed ‑ ‑ ‑

DAWSON J: Yes, they do. This debate is not profitable.

MR CASTAN: As your Honour pleases. We would respectfully put that each of the institutions, legislative, executive, judicial, are constituted in the Commonwealth Constitution as set up in the Constitution and the words which set them up do not exist in a vacuum. They set up institutions of government. They carry with them the necessity for interpretation. The Constitution is open‑ended on all sorts of questions, the way in which representatives conduct themselves in Parliament, the way in which Ministers act, the carrying out of the executive power and the judicial power; the one that has perhaps been the subject of most consideration by this Court.

In each case, in our respectful submission, those concepts as underlying concepts or alternatively the language of those words needs to be interpreted and there is some framework of reference by which one gives meaning to the words “judicial power” or to the words “the court” or to the words “Minister of State” or to the words “The Parliament”: to all of these things there is meaning given to those concepts because of some underlying premise or assumption that any given person called upon to interpret them adopts.

We would respectfully submit it is that which is reflected in the broad concept of representative government as it has been adopted and put perhaps as an overarching principle or a general concept in cases such as Nationwide, ACTV and Theophanous and Stephens. Now, we would respectfully submit that the Commonwealth Constitution itself assumes in its sections the continued existence of the States as entities. This Court has said that often enough.

GUMMOW J: It assumes that there will be bodies answering the constitutional description of “Parliaments of States” in a number of sections.

MR CASTAN: In our respectful submission, to say that it assumes there would be bodies called “Parliaments of States” is to strip the language of meaning.

GUMMOW J: No, I was not suggesting it stripped anything but it assumes there is something called a “Parliament of the State”. The question is what that means?

MR CASTAN: Yes, precisely, and more than Parliaments, because it also assumes there will be courts of States because section 77 provides for investing ‑ ‑ ‑

GUMMOW J: Yes, and officers administering executive government, and so on.

MR CASTAN: There is a large number of sections. We have set some of them out at page 3 of our summary and there are others that your Honour’s judgment in McGinty at 374 and others ‑ ‑ ‑

GUMMOW J: But where does that lead for this case? That is what I am puzzled about. .....regulations.

MR CASTAN: The meaning to be given in the Commonwealth Constitution to those references to State institutions is not itself some bare reference to just words. Meaning must be given to the words. If there is a reference to “executive officers of the State” in the relevant section of the Commonwealth Constitution, then that is a reference to the persons having particular kinds of functions. That has meaning, that concept. If there is a reference to “courts” in section 77, then this Court has said it must be truly a court. This Court has not hesitated to say that the judicial power of the Commonwealth cannot be vested in something which in truth when you examine it is not really a court at all. It might be called a court but actually it is not performing judicial functions, so it is not appropriate.

The Judiciary Act itself says in - I have just forgotten the section, but the section which provides that there must be a stipendiary magistrate to - 39(2). So that there is more to these words than just saying, “Well, they’re just words and that says nothing about what kind of institutions exist in the States”. The Commonwealth Constitution itself assumes a fabric of some kind functioning in the States and, in our respectful submission, it is not a proper interpretation of those sorts of sections, sections which refer, for instance, to the capacity, in the case of elections, the qualifications for election operating in the States. It cannot be, in our respectful submission, that they are referring to a context in which the States operate in a totally, to put it at its broadest, undemocratic way, in a totalitarian way, say, or in a way that is totally inconsistent with the functioning of representative government.

Again, where the line is to be drawn, which sort of entities, to take the judicial power example, will not amount to a real court at the State level and therefore not be adequate for the vesting of Commonwealth judicial power, the example we are most familiar with, is a matter for judgment. Equally, which kind of persons who, though called executive ministers, are not really the kind of ministers of State who are carrying out the functions of responsible government, such that in the Commonwealth constitutional references it might be said that is not really what the Constitution means. It means responsible ministers in accordance with operating in a democratic fashion in a way we understand it in the context of representative government. In references to State Parliament or any other component of a State, that must be a reference to a State functioning within the framework of some category of reference.

As your Honour Justice Gummow pointed out, it may be a category of indeterminate reference. It may be very open ended. What will suffice? But that does not mean that there is nothing that suffices. That does not mean there will not be some circumstance where there is some boundary. The Commonwealth Constitution assumes the continuity or the existence of representative government.

McHUGH J: But there are real problems about these arguments about assumptions. I would have thought it to be argued even more convincingly that the Constitution assumed a free enterprise capitalist society as it does a representative democracy. But I doubt if there would be anybody who would want to argue that because of that assumption the Constitution should be so interpreted to give effect to a free enterprise capitalist society.

MR CASTAN: There is a difference, your Honour. The Constitution in relation to the States makes reference to particular State institutions in a variety of ways, including the State Constitutions in sections 106 and 107. I mean, it makes specific reference to them. This is just a - I use the word “assumption,” but the assumption is only something that is drawn from the words themselves. The words of the Constitution refer to these institutions of the State so - - -

DAWSON J: And that is the extent of the provision, and when one talks about “representative government,” you do not assume a system of representative government for which the Constitution does not provide, you look to the Constitution to see what is the system for which it provides, and that is minimal, and for the rest, it leaves it to Parliament.

MR CASTAN: Yes, but all we are then debating is the chicken and the egg.

DAWSON J: No, you are all the time reverting to a principle outside the Constitution - - -

MR CASTAN: No, your Honour.

DAWSON J: - - - by which you put content into the constitutional provisions.

MR CASTAN: No, your Honour. No, your Honour.

DAWSON J: Well, it seems to me you are.

MR CASTAN: I am referring to the words of the - for his leg of the argument I am referring to the words of the Commonwealth Constitution, I am referring to the references, and I will not - - -

DAWSON J: Well, it has been pointed out to you they assume the existence of the States as entities; but they certainly do not assume a certain type of representative government.

MR CASTAN: They assume the existence of certain types of courts, they assume the existence of certain types of - - -

DAWSON J: Well, that is debatable.

MR CASTAN: - - - Parliament, they assume the existence of certain types of ministers, they assume the existence of certain types of elections.

DAWSON J: It is the “certain types.”

MR CASTAN: Yes. Now, the range - - -

DAWSON J: And you want to draw the types from outside.

MR CASTAN: Once we say “certain types” then someone, at some point, has to decide whether a particular type is within the range that the Constitution provides. The Parliament has power to decide all sorts of things, and the State Parliament has a wide range - - -

DAWSON J: You are on the periphery now. Now, what you are attempting to say is that what it assumes is representative government in the States, are you not?

MR CASTAN: Ultimately it assumes - I will use a wider word if I am - - -

DAWSON J: And you are wanting to say it is the type of representative government that is assumed for the purposes of the Commonwealth Constitution.

MR CASTAN: Yes, your Honour.

DAWSON J: And what I am putting to you is, it does not assume much - well, it may - one does not talk in assumptions there, one talks in terms of what is provided, and little is provided.

MR CASTAN: Yes. Whatever is provided - one can look at a list of sections - and we have listed some of them in paragraph 15 of our outline - there are a number of references to the functioning of the States, and they must be given meaning.

DAWSON J: No, no, but you are off on a false trail there. We can assume that the Constitution contemplates the continued existence of the States, but that is not your argument. Your argument is that it also assumes a certain type of representative government in the States, is it not?

MR CASTAN: Yes, it is.

DAWSON J: Yes. Well, now, that is what you have got to make good.

MR CASTAN: Yes, and that is drawn from the Constitution itself, not from some generalised - - -

DAWSON J: Well, where do you draw it from?

MR CASTAN: I draw it from sections 9, 10, 12, 15, 25, 29, 30, 31, 41, 44, 73, 77, 107, 108, 110, 119 and 124.

DAWSON J: Those sections provide for representative government - responsible government indeed - which entails elections of a type that you are left to be determined of representatives in the Senate and in the House of Representatives.

MR CASTAN: Well, they go much further than that, because there are sections there dealing with State at a number of levels; the judicial level, the ministers and so on. And, in our respectful submission, they, even as a matter of strict construction, if one looks at those sections one is forced to construe the sections and give meaning to the words and, when one chooses to give them the meaning of one form of meaning or another, one is making a choice which is founded on some concept or other that determines the interpretation. Interpretation of the words of the Constitution itself carries some assumption.

BRENNAN CJ: Mr Castan, Sir Owen Dixon postulated the common law as the foundation of the Constitution. Is there any reason why, subject to the words of the Constitution, that is, the general provisions of the Constitution, the words of the Constitution cannot be given the meaning which they would be given at common law?

MR CASTAN: There is a reason, and that would be that the common law, used in that general sense, may not give them sufficient meaning. As a general principle, yes, certainly.

BRENNAN CJ: The common law knew a Parliament. It knew an Executive Government. It knew a Crown and it knew courts.

MR CASTAN: Yes. All I say is that there may be some references that are not sufficiently encompassed.

BRENNAN CJ: If one interprets the terms of the Constitution in accordance with their common law connotation, modifying, if need be, those concepts by reference to terms of the Constitution, for example, those which postulate elections for the Commonwealth Parliament, those which require membership of the Parliament by those holding Executive office, do we need to take it any further than that, and if we do, by what canon of construction do we do so?

MR CASTAN: One would not in those cases where there is a relevant common law meaning. I hesitate to concur totally with what your Honour has put just because there may be some categories, and without exhaustively reviewing the whole of the Constitution, there may, but in general principle ‑ ‑ ‑

BRENNAN CJ: I am endeavouring to get to your method of construction of the Constitution . If one can give the terms in the Constitution their common law meaning and one can add to that common law meaning by reference to other terms of the Constitution, then one can come to a certain result. If there is some other method of construction, save that, we need to have that other method of construction identified.

MR CASTAN: Yes. Perhaps I would concur with your Honour and only add that by expressing it in the way in which your Honour has to me, what is involved is saying, well, we give to the meaning of these terms in the Constitution that meaning that represents the evolution of what I call the British Constitutional tradition in the common law as evolved over many hundreds of years, and I am content to concur with that. There may be some terms which perhaps the common law does not provide for or does not sufficiently ‑ ‑ ‑

BRENNAN CJ: That may be so, but in general terms, for the purposes of our present discussion, is there any reason why we cannot have the Constitution in one hand and Anson’s 1922 edition of Constitutional Law in the other?

MR CASTAN: Only one reason, and that is that there may be constitutional doctrines that have already developed in Australia which are not necessarily consistent with the ‑ ‑ ‑

BRENNAN CJ: Constitutional doctrines of the common law?

MR CASTAN: No, constitutional doctrines concerning the interpretation of the words of the Australian Constitution, in other words ‑ ‑ ‑

BRENNAN CJ: One can derive certain meanings from the words of the Constitution.

MR CASTAN: Perhaps I could put the existing constitutional jurisprudence of this Court may provide an answer to some of the terms so that one would - I hesitate to say that is the common law in its general terms in 1922 that provides the answer because existing constitutional jurisprudence of this Court may provide the answer to some of these concepts.

TOOHEY J: There is something to this effect said by the Chief Justice, Justice Gaudron and myself in Theophanous at page 126 about the place of the common law in the Constitution. It is a reference to Sir Owen Dixon’s statement and perhaps the third paragraph on that page, which I need not read, bears upon what the Chief Justice was putting to you.

MR CASTAN: Yes, and perhaps the qualification that your Honours have put is the qualification that I was endeavouring, perhaps awkwardly, to ‑ ‑ ‑

TOOHEY J: Yes, that is why I directed it to your attention.

MR CASTAN: Yes, I am indebted to your Honour. The qualifications there expressed perhaps expresses better than I have been able the hesitation that I have had in concurring totally with the way in which your Honour the Chief Justice has put it to me.

BRENNAN CJ: That proposition seems to be unanswerable in the sense that if the Constitution alters the common law, so be it.

MR CASTAN: Yes, but the words expressly or by implication almost beg the question the way your Honour has put it to me that in interpreting the words or deriving any implication one turns to the common law. The expression as it is put here in this sentence assumes ‑ ‑ ‑

BRENNAN CJ: But one does surely, because for the reason that Sir Anthony Mason set out - I think it was in the ACTV Case - namely, that it is a matter of interpretation of words by ordinary canons of construction, then one finds an implication perhaps simply as a matter of interpretation. If it is a question of the structure of the Constitution, one finds it as a matter of interpretation in necessity. You do not quibble with that? You do not quibble with the proposition ‑ ‑ ‑

MR CASTAN: I do not quibble with that, but I qualify it also by one other consideration, your Honour, that the notion that in determining the meaning of words in the Constitution or determining what is to be implied in it, even by nature of the very structure of the institutions that are created, that the common law in its traditional development of these notions will provide the totality of the answer or that the answer is merely to be found in the words themselves, is, I say with the utmost of respect, question begging in the sense that when it comes to ultimate questions of interpretation or determination of the meaning or extent of a term in the Constitution, some assumption lies behind the giving of meaning to words or constitutional concepts.

BRENNAN CJ: Now, that is the proposition that seems to me to lie at the heart of the exchange between Justice Dawson and yourself and if it is a question of interpretation of the Constitution, one must be able to articulate how one identifies the assumptions to be made, else it is left to the idiosyncratic assumptions made by Justices.

MR CASTAN: Yes, and it is our submission that, ultimately, where there is not otherwise guidance, or where the matter is not otherwise determined by the principles, the common law and the other existing jurisprudence of this Court, there has to be some concept that drives or assists the determination by a member of this Court in determining whether, to take an example, an election should be on an informed basis or an uninformed basis.

DAWSON J: We are getting down to it now. If you would accept that there are various forms of representative government, but that at its irreducible minimum, all that representative government involves is little more than the existence of elected representatives who legislate for the purposes of government. It may mean something more than that but that would be an irreducible minimum. On the other hand, one can have forms of representative government which involve more, a great deal more, and one may think that desirably a great deal more. In between those two lies the answer. Where does one go to find the answer?

MR CASTAN: One goes to find them, in our respectful submission, in fundamental democratic principles.

DAWSON J: No. One goes to find them in the Constitution. That is the point. If one finds that all that the Constitution has provided is the irreducible minimum, that is it.

MR CASTAN: Yes. But the assumption that the Constitution has only provided - - -

DAWSON J: There is no assumption in that, Mr Castan.

MR CASTAN: Well, the inference or the conclusion - - -

DAWSON J: There is no inference in it either.

MR CASTAN: The conclusion, the interpretative conclusion of the words, if I may, with the greatest of respect, so characterise the way in which your Honour has put it, the interpretative conclusion so reached itself proceeds on some underlying assumption.

DAWSON J: It does not. It looks to the Constitution to see where in that spectrum it has landed, what it has provided.

MR CASTAN: If one touched on the base as the irreducible minimum, as expressed by your Honour, one would be assuming that there is no meaning to be given, no particular meaning to be given to the word “Parliament” in section 1.

DAWSON J: Not at all, Mr Castan, not at all.

MR CASTAN: Because that word should be given - we would respectfully submit, it is entitled to as much meaning, and some meaning must be given, as the election process. There is no more reason to say that the election process is the irreducible minimum and nothing in between matters, including what the Parliament does or how it conducts itself or how the ministers behave, or what laws are passed about how we can criticise or not criticise ministers, than we should choose the irreducible minimum as posited by your Honour. In any event, can I proceed to why it is we say that there is more than just that irreducible minimum in the Commonwealth Constitution and, as I have indicated, it is our respectful submission that contained in the Commonwealth Constitution are numerous references to State institutions that must be given meaning and in giving them meaning some basis of interpretation must be adopted, and one can adopt either a view of the words in the relevant list of sections I read which refer to State institutions which says - and that means whatever the State chooses to make them.

DAWSON J: Why are we in this area? I mean, what you are wanting to say is that in the Commonwealth Constitution there is an implication of freedom of speech, and I think that is agreed to varying extents by every member of the Court, but what you are wanting to say is that that
implication extends to the States. Is not that the debate?

MR CASTAN: Yes, but I do not seek to proceed for the purpose of this case by taking the implication of freedom of speech as a free‑standing ‑ ‑ ‑

DAWSON J: Freedom of communication is perhaps better for your purposes.

MR CASTAN: I do not seek to take free‑standing freedom of political communication as some starting point. I rather seek to put that in dealing with the way in which the Commonwealth Constitution involves the States, it involves them in a way which must be given meaning. The meaning that must be given to those State institutions that are referred to in those various sections is a meaning that the members of the Court must attribute some meaning to. In that interpretative process, in looking at the words in the Commonwealth Constitution which refer to State institutions, court, ministers, Parliament or whatever, this Court must give meaning to those concepts and has a choice to say they mean whatever the State chooses to ‑ ‑ ‑

DAWSON J: Give what meaning for your purposes for this case?

MR CASTAN: For this case I respectfully submit they mean institutions in accordance with democratic principle - “representative government”, to use the phrase that the Court has adopted. Putting it more boldly or more generally, that we live in a democratic society and the institutions of government, State and federal, are run on a democratic basis. What the boundaries of that are, what that category of indeterminate reference will be in any given case, of course has a very large range of categories. But it is sufficient for our purposes to say that in giving those words meaning, they are referring to institutions that are structured on the basis of - when giving them meaning, what lies behind the process is the application of a concept of democratic government, of representative government, as it has been termed in the authorities.

It is necessary to decide whether the words mean just whatever the States choose to make them mean or whether the words in the Australian Constitution have a meaning that is explicitly something that is to be inferred as something more than that. A decision is made. The Constitution itself does not, so to speak, if I may say so with the utmost of respect, magically provide the answer itself. Some ultimate decision is made. Whether one calls that an assumption, a principle of interpretation, a belief about the way in which institutions of Australian government proceed or whether one says that we interpret it because when the word “courts” in section 77 says “courts”, it means something that we know what a court is and we look to the common law view about a court.

There are a number of ways in which one can come at this, but ultimately, in our respectful submission, it is not the correct view to say it just means whatever a State ultimately happens to want it to mean at large. We say the correct concept is that of representative government, as it has been expounded by this Court, whether it is treated as an overarching principle or an underlying foundation or a principle of interpretation or simply the basis on which one ultimately has to decide the meaning of words.

DAWSON J: Can we get this down to some sort of form or logic. The Commonwealth Constitution provides for representative government. That is the first proposition, is it? The Commonwealth Constitution recognises the existence of the States as such. Therefore, the representative government for which the Commonwealth provides is the same representative government as is provided for by the State Constitutions or must be under the Commonwealth Constitution.

MR CASTAN: No, with the greatest of respect, I do not concur with the logic of the propositions as put by your Honour.

DAWSON J: Well, what is the logic?

MR CASTAN: The logic is that the Commonwealth Constitution itself provides for representative government.

DAWSON J: Yes.

MR CASTAN: It provides and refers to State institutions in a number of provisions.

DAWSON J: Yes.

MR CASTAN: It contemplates the continued existence of the States ‑ ‑ ‑

DAWSON J: Yes.

MR CASTAN: ‑ ‑ ‑ in a form which themselves are, in body, representative government.

DAWSON J: Why the second step?

MR CASTAN: Because that is what the words mean when one looks at words used.

DAWSON J: And do you mean by that the same form of representative government as the Commonwealth Constitution contemplates for the Commonwealth?

MR CASTAN: When your Honour says, “the same form” that is capable of two very different answers. Representative government, yes, but the precise form - representative government has many variations and so long as it is within the scope of representative government, it - - -

DAWSON J: Where do you look to determine what the scope of representative government for the State is? Where do you look to determine that?

MR CASTAN: Ultimately, it is the entire history of the development of representative government and the vast range of varieties that exist.

DAWSON J: You do not look to the State Constitutions?

MR CASTAN: One looks to the State Constitution. I am sorry, perhaps I misunderstood. In determining whether or not - I had leapt to the next question.

DAWSON J: Yes, you leap immediately to this assumption you make that there is some agreed form of representative government involving a number of things which suit your purposes.

MR CASTAN: No, I leap to the fact that in interpreting the State Constitution, in looking at its institutions which are referred to in the Commonwealth Constitution, do those terms, those words, those institutions as provided for in the State Constitution fit within the concept, the outer limits, if you like, of the concept of representative government or have they gone beyond the limits of what any concept of representative government would mean. That is how we put it. Now that may mean that they have a different form. That is why I hesitated to answer your Honour’s earlier question. That may mean that they do not have to be the precise same form. It does not have to be - it may be different, it may be first past the post voting instead of preferential and so on and so forth.

We can think of enormous numbers of varieties of forms of representative government but they must fit within the outer limits of what is representative government. One of those outer limits is communication on political matters is free and unfettered. Now, that is the basis on which we put it.

Can I take your Honours briefly to one reference relating to the importance of this question of communication as one of the components of this concept that we say applies at the State level which illustrates that it is more than just the irreducible minimum, the way in which your Honour Justice Dawson put it, in Nationwide 177 CLR 74.

It is really the citation of the reference to the Canadian case of Re Alberta Legislation Statues and I pick it up because it is relevant to the consideration of the way in which we should characterise words in the Commonwealth Constitution such as words in section 1 and 51 and, equally, the references in the Commonwealth Constitution to the State and its processes, and the way in which Justices Deane and Toohey at page 74 of 177 CLR put the matter is:

t25 - liz

The second level at which the implication of freedom of communication and discussion operates is the level of communication between the people of the Commonwealth. Inherent in the Constitution’s doctrine of representative government is an implication of the freedom of the people of the Commonwealth to communicate information, opinions and ideas about all aspects of the government of the Commonwealth ‑ ‑ ‑

DAWSON J: Yes, but you have still got the Commonwealth Constitution. I thought we were talking about State Constitution.

MR CASTAN: I am, but could I just take your Honour then to the Canadian reference:

The basis of such an implication was identified by Duff C.J. and Davis J. in Re Alberta Legislation Statutes when speaking of the British North America Act before the adoption of the Canadian Charter of Rights:
“The statute contemplates a Parliament working under the influence of public opinion and public discussion. There can be no controversy ‑ ‑ ‑

DAWSON J: Given they are talking of a particular statute. Now, you have got to come to the State Constitutions.

MR CASTAN: That is the third leg, your Honour. I was referring to this in the context of the references that exist. Your Honour earlier put to me a concept of the irreducible minimum meaning election time, that which happens around election time. I was simply seeking to put to your Honour that the principle goes much wider than ‑ ‑ ‑

DAWSON J: But what I am pointing out to you, these passages do not talk in terms of general principle; they talk in terms of particular instruments.

MR CASTAN: In our respectful submission, when the Statute refers to a Parliament, as their Honours ‑ ‑ ‑

KIRBY J: The Statute referred to is the British North America Act which was the Canadian Constitution we know it as.

MR CASTAN: It was, and the Canadian Constitution referred to a Parliament. In discussing the Commonwealth Constitution, your Honour, I put that we get beyond just elections; we need to look at all of the structures of government.

DAWSON J: That is the point you were talking about, the common law Constitution . I thought we would have at least got to the point where you said you did not derive what you want to derive from the Commonwealth Constitution, but you derive it from the State Constitutions.

MR CASTAN: No. I have not put that, with respect, your Honour. I put that we derive it from three sources. I dealt with the ultimate sovereignty.

DAWSON J: We have dealt with the sovereignty of the people, yes.

MR CASTAN: I am not concluding with inferences or the implications or the provisions that are to be found in the Commonwealth Constitution from which it is to be ‑ ‑ ‑

DAWSON J: But I thought you admitted a moment ago that the Commonwealth Constitution does not prescribe the form of representative government which exist in the States.

MR CASTAN: It does not prescribe the particular form, but it prescribes that there it must be within a form of representative government. I conceded that it did not ‑ ‑ ‑

DAWSON J: And what are the limits that it prescribes?

MR CASTAN: It does not prescribe limits by defining what the limits are; it prescribed - - -

DAWSON J: Well, I thought you said it prescribed at least some sort of representative government.

MR CASTAN: Yes, and on a case - - -

DAWSON J: What is it?

MR CASTAN: One such limit is that there should be no - that the State Parliament will operate as a Parliament in the sense of an open Parliament in which there is free debate. Another such limit is that the elections in State - that the electors who are chosen and referred to in sections 30 and 31 of the Commonwealth Constitution will be informed electors, and so on; that the courts referred to in section 77 of the Commonwealth Constitution will be State courts that are free of improper influence and independent and not appointed - - -

DAWSON J: Now, the end result you want is, and the Commonwealth Parliament, or the Commonwealth Constitution, prescribes that there should be freedom of communication.

MR CASTAN: And that is one of the principles that - - -

DAWSON J: Now, that derives from the Commonwealth Constitution?

MR CASTAN: No, it derives from the Commonwealth Constitution, which is - - -

DAWSON J: As an obligation imposed upon the States. Is that what you put?

MR CASTAN: Yes, your Honour.

DAWSON J: Very well.

MR CASTAN: It is the requirement of the existence of the freedom of communication as one of those components of that - - -

DAWSON J: Well, it does not matter whether it is one of the components; what you say is, there is a requirement of freedom of communication in the States deriving from the Commonwealth Constitution?

MR CASTAN: Yes. I would rather put it - - -

DAWSON J: At least we have got to some point.

MR CASTAN: But there are steps in that logic and I have sought to - - -

DAWSON J: Well, there may, but that is the conclusion you seek to reach, is it?

MR CASTAN: I seek to reach the conclusion that a system of representative government is provided in the States - - -

DAWSON J: No, no, that is not the question. Do you seek to say, or do you not seek to say, that derived from the Commonwealth Constitution is an obligation on the States to guarantee freedom of speech - freedom of communication.

MR CASTAN: Yes.

DAWSON J: Yes, well, I thought you were saying that.

MR CASTAN: As a result of a number of steps, but, yes.

DAWSON J: Well, I just want to know what your end proposition is, and I understand it now.

MR CASTAN: Yes, yes. The other reason why - before turning to the State Constitution - the other reason why we put that the system of representative government in the Commonwealth itself could not function in the absence of the continued existence of - to take the particular matter we are talking about, freedom of communication at State level, is the indivisibility of the forms of communication that take place. Now, this is an important matter. If we proceed on the assumption that there exists at the Commonwealth level such a freedom of communication to be appropriately derived, whether a matter of interpretation or however, but assuming it exists, then given the reality of the way in which political debate takes place, it could not function freely in the Commonwealth arena if it was restricted in the State arena, and any number of examples would illustrate that.

DAWSON J: This is a separate argument.

MR CASTAN: It is part of the argument for deriving the freedom from the Commonwealth Constitution. I have not yet passed to the State Constitution itself.

DAWSON J: Well, it is another argument, because what it involves is the proposition that the implication of freedom of speech which one derives from the Commonwealth Constitution operates not only as an inhibition on the legislative power of the Commonwealth, but also extends as a guarantee which operates in the States. That is the difference, and it is a very big difference.

MR CASTAN: Your Honour, might I demur from the way in which your Honour expressed it at the Commonwealth level. We do not put that the freedom operates as an inhibition on Commonwealth power. We put it the other way: the Commonwealth power is so restricted as not to interfere with political communication. That in turn creates ‑ ‑ ‑

DAWSON J: I thought you said that it extended to the States in that form.

MR CASTAN: Yes, but your Honour has put it that the freedom drives the limit of power and it is our submission that it is the limit of power from which derives the freedom and we do not want to put the cart before the horse because that leads to difficulties in the logic.

DAWSON J: I had better get this straight too. So far as the implication of freedom of communication in the Commonwealth Constitution is concerned, how does it operate?

MR CASTAN: It is the result of ‑ ‑ ‑

DAWSON J: Does it operate, one, as an inhibition upon Commonwealth legislative power?

MR CASTAN: It is the result of the existence ‑ ‑ ‑

DAWSON J: No, does it operate as an inhibition?

MR CASTAN: The answer is no. It is the result of there being such a restriction. Commonwealth power is restricted - this is dealt with in some detail ‑ ‑ ‑

DAWSON J: Does it operate as a restriction of power? Can the Commonwealth pass legislation which inhibits freedom of political communication?

MR CASTAN: No, it cannot, but that does not mean that the freedom, some freestanding freedom, necessarily operates ‑ ‑ ‑

DAWSON J: We are just getting to first base. So in that sense it does operate as a restriction on Commonwealth legislative power?

MR CASTAN: No, your Honour.

DAWSON J: I thought you said it did a minute ago.

MR CASTAN: No, I will not, with the greatest of respect, concur with ‑ ‑ ‑

DAWSON J: I put it again. Can the Commonwealth pass legislation which restricts freedom of political communication?

MR CASTAN: No, it cannot, subject to the limits.

DAWSON J: Why can it not?

MR CASTAN: Because to do so is to pass laws which are not in accordance with the requirements of the Constitution which limits the power of the Parliament to do away with underlying principles of democratic representative government. That is the reason.

DAWSON J: I must say, with the greatest of respect, that to me is gobbledegook.

MR CASTAN: I am sorry, your Honour, but the only way in which we are ‑ ‑ ‑

DAWSON J: I thought you said in the process of saying a number of things then that the implication does in fact restrict the legislative power of the Commonwealth Parliament.

MR CASTAN: No, your Honour, I, with the greatest of respect, would not accede to the proposition and not be confined to the proposition ‑ ‑ ‑

DAWSON J: You are not being confined to anything. We have got a few steps to go yet, but at least in the first instance would you say that?

MR CASTAN: No, I will not, with the greatest of respect, put it on the basis that the implication drives the limit. It is our submission that there is a limit derived from, as a matter of interpretation or by reason of the representative nature of the institutions that are created, and it is that immunity that results from a limitation on power. Can I then, given the existence of a limitation of power and given the limitation of power which results in an immunity or freedom to communicate freely, to communicate in the political environment on the Commonwealth level, in our respectful submission, the nature of the political structure in this country is such that that freedom will not operate if there is not such a freedom at State level.

KIRBY J: Where is the state of authority on this point? I think some of the Justices have explained it in those terms, that it is not possible to confine it to the federal because of the integration of communication in the country. What is the state of authority of the Court?

MR CASTAN: The particular passage that I would take your Honours to is the judgment of Justices Deane and Toohey in Nationwide News 177 CLR 75 as perhaps best expressing the view on that topic. About a third of the way down the page their Honours say:

The implication of freedom of communication about the government of the Commonwealth most obviously applies in relation to Commonwealth, as distinct from State or other regional, governmental institutions. Under the Australian federal system, however, it is unrealistic to see the three levels of government - Commonwealth, State and local - as isolated from one another or as operating otherwise than in an overall national context. Indeed, the Constitution’s doctrine of representative government is structured upon an assumption of representative government within the States and, to a limited extent, an assumption of the co‑operation of the governments and Parliaments of the States in the electoral process itself. As a practical matter, taxes levied by the Executive of the Commonwealth under laws made by the Parliament are applied for public purposes through and at all levels of government. Political parties or associations are likely to exist in relation to more than one level of government and political ideas are unlikely to be confined within the sphere of one level of government only. Clearly enough, the relationship and interaction between the different levels of government are such that an implication of freedom of communication about matters relating to the government of the Commonwealth would be unrealistically confined if it applied only to communications in relation to Commonwealth governmental institutions. Accordingly, there is obviously much to be said for the view that the Constitution’s implication of freedom of discussion extends to all political matters, including matters relating to other levels of government within the national system which exists under the Constitution.

DAWSON J: You adopt that passage as part of your argument, do you?

MR CASTAN: We do.

DAWSON J: Very well.

KIRBY J: Is that the state of authority of the Court? Have the other Justices embraced that, because that seems a little different from what you are putting to us. I took what you were putting to us is that it is inherent in the very nature of the polity that the State Parliament is of the same general character as the federal Parliament and that therefore you cannot have a Parliament consistent with the Constitution which is not open to the same sort of debates. This is a different one. This is saying that there is a federal Parliament. It must be subject to these inhibitions and, as a matter of practicality, the integration of communication is such that it must also affect the State Parliaments. They seem to be two different rationales.

MR CASTAN: Yes, as I have said, it is the next leg of the argument deriving the relevant conclusion from the Commonwealth Constitution. It is a separate leg to that which I put earlier, and it is based on what I will call for this purpose, the indivisible nature of political communication.

DAWSON J: Mr Castan, if that means you rely on Theophanous and Stephens - I rather sense you have been trying to avoid those cases, and I can understand the reason why.

MR CASTAN: I am not trying to avoid anything. I am dealing with particular doctrines, with the greatest of respect to your Honour, and I am dealing with a particular argument that relates to the indivisibility, at this stage, indivisibility of political - - -

DAWSON J: If you rely upon the fact that what the Commonwealth Constitution says goes beyond prohibiting legislation which offends against the freedom of speech which is implied in the Constitution, and those passages certainly go beyond that, you have to rely on Theophanous and Stephens, do not you?

MR CASTAN: I do not hesitate to rely on Theophanous and Stephens but I do not know that they - yes, I do have some references. Can I give your Honour the references?

DAWSON J: It would seem that there is now not a majority of the Court which would support those propositions.

MR CASTAN: In our respectful submission they would support these propositions that I am now putting, propositions which relate to what I will call, for the purpose of a one line - - -

DAWSON J: Well, now, we understand the nature of the discourse. All right.

MR CASTAN: Indivisibility of political discussion. Can I give your Honours other references on that same question of indivisibility in ACTV 177 CLR at 142 in the judgment of Chief Justice Mason, at 168 to 9 in the judgment of your Honours Justices Deane and Toohey, at 217 in the judgment of your Honour Justice Gaudron. In Theophanous 182 CLR 122, the judgment of the Chief Justice Sir Anthony Mason and Justices Toohey and Gaudron, and in Stephens 182 CLR 232 in the judgment of Chief Justice Mason and Justices Toohey and Gaudron and at 257 in the judgment of Justice Deane.

KIRBY J: Well, now, at that point then, if, in fact, that bears out what you say there is a holding of this Court of a majority of the Court and to change that, if that was essential for the decision, would it not, under the practice of the Court, require some application for leave to re‑argue the correctness of the point?

DAWSON J: You are not going to make that application, are you, Mr Castan?

MR CASTAN: No, your Honour, I am not. I hesitate because - - -

KIRBY J: I am just trying to understand what the legal principles are here. I mean, we have talked a lot about political philosophy and so on. I want to know what the authority of this Court is.

MR CASTAN: Can I come back to your Honour as to the precise number of the Judges on that particular question of indivisibility because I think the judgment of his Honour Justice Brennan in Theophanous was to the effect that there is not that indivisibility.

DAWSON J: Well, at the moment there is no application to re‑open those decisions.

MR CASTAN: I will provide your Honour with the precise numerical calculation, if we can do it. It is not on our little table, so, I will have to do some further calculation, but can I say this - - -

KIRBY J: It is not the calculation I want, it is to understand whether there is a determination of an issue in contention which is a holding of the Court which, unless it is changed, is the law and which I will obey.

MR CASTAN: Yes, I understand that, your Honour. Can I perhaps respond to that or have an opportunity to obtain the precise answer. I do not have it immediately to hand in terms of the correct answer to the way your Honour has put the question but can I give a couple of illustrations that would illustrate why the principle is, we would say, in any event, self‑evidently correct and that the view that there is to be isolated those - “State talk”, if we can call it that, just does not work and a couple of illustrations would demonstrate it.

One is the well-known circumstance of a State royal commission last year into what appeared to be, one might have thought in a very naive kind of way, was entirely State issues concerning what had occurred in the defiling of some documents or presentation of some documents in the State Parliament by a former premier but manifestly, on any realistic political view, was of enormous significance in terms of federal political discourse. Another is a Senate inquiry currently under way in the Senate which is a federal organ which is investigating the Victorian casino.

One can go on and on and some of the judges, and I think your Honour Justice McHugh in McGinty referred to a matter in Stephens as having been classically an entirely intrastate political issue but we would respectfully submit that one only has to consider the political party implications of those kinds of debate and criticism that were the subject of the discussion in Stephens, criticisms of politicians going overseas in the circumstances that there arose, to imagine that there may well be - we do not know whether there were, but there may well be circumstances in which, say, the Democrats would gain significant advantage at the federal level by being able to say “Well, there you have a group of both major party politicians who are exploiting the system”, if that were the subject of the debate.

The difficulty with the notion of dividing up issues into State and federal is that the political parties do not divide up like that and in the current context the moment one gets a State, albeit not Victoria, but if a State passes legislation which restricts duck shooting, then inevitably those in favour of duck shooting will seek to express their resistance to the party of the State government which passed laws adverse to their interest by restricting the use of guns and will then say well - if it were a Labor government or a Liberal government, whichever, but passed the State law which restricted duck shooting, they will be saying, “Well, if you did that well then we will take our vengeance on your” Liberal or Labor, as the case may be ‑ ‑ ‑

GUMMOW J: They really want the Executive of the day to revoke these regulations, do not they?

MR CASTAN: I am sorry, your Honour?

GUMMOW J: They complain about regulation, do not they?

MR CASTAN: In this case?

GUMMOW J: Yes.

MR CASTAN: Yes, and those ‑ ‑ ‑

GUMMOW J: They want the regulation revoked by the Executive.

MR CASTAN: Yes, in the particular case.

GUMMOW J: I do not quite understand what the political debate is, what political action is sought?

MR CASTAN: What political action sought is legislation which bans duck shooting, that is what is sought, a law passed through the Parliament of Victoria which says, “You’re not allowed to go out and kill the ducks any more”. That is what is sought. There is a debate going on where a lot of people are saying, “You shouldn’t restrict us. We should have the” ‑ ‑ ‑

GUMMOW J: How does that render these regulations invalid?

MR CASTAN: If the regulations inhibit or prevent that debate, or prevent the people who are ‑ ‑ ‑

GUMMOW J: At all?

KIRBY J: That must be far too wide. That would mean that just because the Federal Parliament put barbed wire around airports and runways for obviously very good reasons and you cannot go onto runways and have a debate there, that is an inhibition. I mean, that is not a viable principle.

MR CASTAN: Of course, and this Court has developed principles, but I was asked what is the debate? There is a vast area of development already on the test of reasonable proportionality.

GUMMOW J: I was asking, what was the debate and how it connected with alleged invalidity of these regulations?

MR CASTAN: The debate was whether or not there should be ‑ ‑ ‑

GUMMOW J: I now understand what the debate is, but I still do not understand how it has legal connection with the invalidity of these regulations?

MR CASTAN: Because those are seeking to contend that there should be a new law in this State along the lines that has already been recently enacted in other States banning the shooting of ducks as a recreation, those people are prevented from the most effective means of conveying their message and pressuring the public opinion to bring about a change in the law which would mean that Victoria would pass a law along the lines of the recently passed New South Wales law, the recently passed Western Australian law which would ban duck shooting, and in order to get duck shooting banned in a State, you have got to run a campaign; you have got to win public opinion; you have got to pressure the government; you have got to get the government on your side.

GUMMOW J: By breaking an existing law.

MR CASTAN: You ordinarily would seek not to break existing law, and then we will come, in due course, to the question of reasonable ‑ ‑ ‑

GUMMOW J: That is why the United States cases then get caught up with this question of effective, and they seem to say, “You can’t simply invoke the First Amendment by saying this is the most effective way to go and lie down on the runway before the plane.”

MR CASTAN: Of course not, and there is the question of reasonable proportionality which this Court has developed ‑ ‑ ‑

GUMMOW J: You then invoke the impact of television reporting of these incidents?

MR CASTAN: Yes. That is highly relevant. That is the way in which you affect public opinion. That is the real world, your Honour. It is television which influences opinion. We are dealing here with political world, not the legal world. In the political world, the way in which you bring about change in government is you ‑ ‑ ‑

GUMMOW J: In other than by reasoned debate.

MR CASTAN: Other than by reasoned debate, absolutely, your Honour. You target the emotions and you endeavour to persuade people that it is very important that they do something and you show them something dramatic and perhaps bloody and horrible, and you get them then to think that that is a good idea, or that what people are doing is a very bad idea, because most of the populace, and it might be said a lot of the politicians, do not respond to reasoned debate, so it is said by those who are ‑ ‑ ‑

GUMMOW J: Is that a value the law should protect?

MR CASTAN: I am sorry, your Honour?

GUMMOW J: Is unreasoned debate as a method of law making a value the Constitution should protect?

MR CASTAN: Yes, your Honour.

GUMMOW J: All right.

MR CASTAN: Certainly. Any mode of influence, subject to the limits that are imposed by what we have called what has been developed as a doctrine of proportionality and that is what we would come to because if there is a restriction it does not operate as an absolute restriction, you cannot lie down on the runway, and so we come to that, but one does not answer that ‑ ‑ ‑

GUMMOW J: You see, Mr Castan, it was unreasoned debate that led to these events in Germany starting in 1933 which you referred to earlier this morning. That is why I mention the point now.

MR CASTAN: Yes, it was, but equally it was - eventually there was no debate at all. I mean, we are dealing here - with the greatest of respect, we are not dealing in terms of the functioning of the democratic system with only that form of debate that we would like to think might go on between gentlemen and ladies who sit around in colleges or anywhere else and engage in reasoned debate. We are dealing with the population. We are dealing with a political process here and television is the means by which one influences politicians and influences public opinion and in the case of this particular exercise, if you want to influence people to have a different view about killing these particular animals, you would have to do it in a dramatic way and highlight the issues and if that is emotional or unreasoned, so be it, your Honour.

KIRBY J: Presumably this regulation setting its perimeter does not prevent you from catching ducks that are shot outside the perimeter and using them to demonstrate your point of view. It makes it more difficult for you to get the ‑ ‑ ‑‑ ‑ ‑

MR CASTAN: There would not be any outside the perimeter?

KIRBY J: I am sorry.

MR CASTAN: There would not be any ‑ ‑ ‑

KIRBY J: The ducks do not conveniently fly only in a particular perimeter.

MR CASTAN: No, they do not conveniently die in a particular perimeter. They only fall into the water from the sky when they are shot and the place where they are being shot is where you cannot go, so you cannot get them. You cannot lay them on the steps of Parliament House, which is ‑ ‑ ‑

KIRBY J: Just remind me how far the perimeter is. I thought it was 15 metres.

MR CASTAN: The perimeter is five meters from the water.

KIRBY J: Surely a few ducks will fall outside that and you can pick them up and go to the television station for all you like.

MR CASTAN: They do not.

KIRBY J: You do not want to.

MR CASTAN: They do not.

KIRBY J: They do not. I see.

MR CASTAN: They are shot over the water. It is just not what happens. It is a vast enormous lake and they take off from somewhere and they are flying over the water and they are shot and they fall in the water.

GAUDRON J: And then what happens?

MR CASTAN: I was referring to what I have called for convenience the indivisibility, the indivisibility of debate, and I referred to a couple of examples. I should say that there is one example I would seek to refer to that is in this material that I would respectfully submit that your Honours can properly take judicial notice of it without offending - and I know my learned friend has suggested the material here is not properly before the Court on a demurrer, but there is material which has appeared in the media that highlights the obviousness of this indivisibility point and I will indicate to my learned friend what the particular material is. It is at appendix 6, page 6. My learned friend can indicate whether he wants to take any objection to that. It classically illustrates the indivisibility in a context that is relevant to this matter.

KIRBY J: Given that this is a demurrer, what are we to make of all this material?

MR CASTAN: Only that the Court can take judicial notice of the facts of political debate. That is all. We say the fact that it is a political debate that goes on on an issue is not a controversial fact. Whether or not what is said in a particular press material is true in its content and so on is neither here nor there. The fact is what we seek to draw attention to is the fact that there is a political debate. To put the matter in its explicit terms, it is a simple point of what I was dealing with at the moment, which is what we have called indivisibility of federal and State political debate.

It is very simple. The Carr Government in New South Wales, having passed legislation limiting or restricting, virtually outlawing duck shooting, those in favour of duck shooting immediately responded by saying in November 1995, “There is no State election coming up but what we will do is we are going to target all of the federal members who are Labor members, because this was a Labour Government, so we will get our people out to vote against Keating.” The issue had nothing to do on its face - if one was taking a very peripheral view of the issue, it is a pure State issue; it has got nothing to do with the federal Parliament at all; it is absolutely a State law matter or the whole question of shooting was until the tragic events earlier this year, but certainly at this time it was a pure State matter.

BRENNAN CJ: Well, how did that, in any way, inhibit debate with reference to the Federal Parliament?

MR CASTAN: That does not inhibit the debate. I was rather making the point about the indivisibility of this kind of issue. That particular example is something - it is not these current regulations that we are dealing with; that happens to be the New South Wales position, which is the passage of a new law which did what the present plaintiff seeks the Victorian government to do.

BRENNAN CJ: You see, if one starts from the proposition that what is protected is the representative government prescribed for the Commonwealth by the Commonwealth Constitution, and it is that which is the subject of protection and, thus, of the limitation of power, the question of proportionality arises in relation to the effect of a given law on the freedom of discussion affecting the representative government of the Commonwealth. If, however, you take the view that you have cited, I think, from the joint judgment of Justices Deane and Toohey, that the Commonwealth Constitution prescribes an overall freedom of political discussion, then your point is well made. So, it is a question of which approach you take.

MR CASTAN: Yes. Well, we would respectfully submit it is the latter.

BRENNAN CJ: Yes. Well, I understand.

MR CASTAN: And the reason we submit it is that, while there is not a - what has occurred in New South Wales is not that there is some relevant restriction on freedom of political communication; what has occurred there is something different. The political communication by those opposed to duck shooting has been effective, and the government - the State government has brought in a law which now effectively bans this practice, and those now on the other side - the advocates of freedom to go shooting - are upset about that, so they respond by saying, “We will -” as they say, “target the Prime Minister at the coming election.”

Now, all I seek to draw from that is an illustration that in - I say this field - it is in this State, and it is a different context because they have banned it, whereas, in Victoria the plaintiff is still seeking to have it banned ‑ but one sees how this issue of shooting instantly spills into the federal arena once a law is passed. As it happens, such a law has not been passed in Victoria yet. But the question of duck shooting becomes an issue for federal electors, and for federal candidates for election, not because it is a federal issue in the sense of within the scope of federal powers, not because of anything other than the fact that the nature of political parties is such that those opposed to something that has happened in the New South Wales State Parliament say, “Well, that was a government of a particular political hue, a particular party, and the next election coming up - it is a long time until the next State election - but the next election coming up is a federal one, so we are going to be advocating votes against the next federal - against the members of that party.” A State issue - duck shooting - banning it, not banning it, the desirability of it, has gone immediately into a federal arena.

Now, that can happen - does happen all the time. One cannot, in respect of any given issues, say, “Oh, but look, that’s only a State issue.” And you cannot for the reasons given by their Honours, and you cannot because of the nature of the political process in this country.

Can I pass now to the Victorian Constitution Act as a basis itself from which it should be inferred that representative government operatives and, in turn, which, therefore, impose a limit on legislative power. Can I hand to your Honour - our list of authorities has not, perhaps, comprehensively set out all the sections on which we would seek to rely, and we have sought to restate a list of the provisions which I hand it to your Honours. May I take your Honours to the preamble which sets out some history - that is on page 1 of the print - and I refer in particular to the foot of the page. I draw attention to the reference to the Colony of Victoria having been:

established as a self-governing colony with responsible government.

Obviously not precisely as the concept of representative government but, nevertheless, we draw attention to the fact that the concept of “responsible government” is there referred to and it is necessary to give meaning to that. Can I then take your Honours to section 4(1) and the continuation of the existing Houses - - -

BRENNAN CJ: What about the second-last preamble.

MR CASTAN: I was going to take your Honour to the operative section but that is relevant to the functioning of section 18. Perhaps section 18 should be read with the second-last preamble, if I could draw attention to that, which refers to the original power to repeal or alter the provisions of the Constitution Act itself and I will be coming to section 18, which is the current expression of that power in the operative Act at the present time. Section 4(1), refers to the continuation of the Legislative Council and the Legislative Assembly. Again, I will be coming to the provisions that deal with the actual Constitution. Section 4(2) just refers to continuity in 1975. I do not think there is anything particular to be drawn from that.

If I go then to section 6, your Honours will see that 6 provides:

There should be a Governor of the State -
The appointment.....shall be during Her Majesty’s pleasure -
a person.....shall take the Oath of Affirmation.

Can I take your Honours over to section 8, in particular, and draw attention to a provision that is of some significance given some of the later provisions. It is on page 15.

This is the section that provides in Victoria for four‑year terms with a three year effective minimum. The way it is done is to provide in section 8(1) that:

The Governor may by proclamation or otherwise fix such places.....for holding every session of the Council and Assembly.....
(2) Subject to sub‑section (3) the Governor may.....
(a) prorogue the Council the Assembly or both.....or
(b) dissolve the Assembly.

Then the critical provision, subsection (3), that:

On and from the coming into existence of the Assembly first elected after.....1984 the Governor may not dissolve the Assembly unless -
(a) a period of three years has elapsed since the day of its first meeting after a general election -

So, putting it in political terms, the premier effectively does not have the right in Victoria to advise an election during the first three years of the four‑year term that is otherwise provided unless - and the “unless” is for three years:

(b) the dissolution is authorized under the provisions of section 66 -

which we will come to -

(c) the Assembly has passed a Bill dealing only with the appropriation of the Consolidated Fund for the ordinary annual services.....and the Council rejects or fails to pass the Bill within one month after it is sent up to the Council and the Governor by proclamation declares that the dissolution is granted in consequence -

so, in effect, rejection of supply enables a shorter period than the three years. (d) which is quite critical in terms of the functioning the Parliament:

the Assembly has passed a resolution expressing a lack of confidence in the Premier and the other Ministers of State for the State of Victoria.

So the way in which the structure is founded that in substance, in operative political terms, the premier cannot advise an election under three years and thus choose a time shorter than three years unless there has been a problem with supply or he loses the confidence of the House. But if he does, then of course the ordinary rules apply: the Governor’s powers ‑ ‑ ‑

BRENNAN CJ: Do you summarise these provisions for the purposes of founding the argument that you wish to place upon the Constitution?

MR CASTAN: Yes. What we say is that the provisions provide for a system of responsible government in the sense of ministers who must be members of the legislature and who are accountable for the administration of executive government of the State. That is one component. Secondly, it provides for a legislature which is elected by electors, as it is described. Thirdly, it provides for judicial power in a Supreme Court. It contemplates, we would respectfully submit, when one examines all of those sections, that elections will be conducted in a fair and democratic manner and that people will be informed about their choices for election.

It contemplates that ministers who are responsible are responsible openly to the Parliament and capable of being criticised or appropriately dealt with if they fail to act responsibly and are accountable in the sense in which that term is what a responsible government envisages. The consequence that flows from what I will call that democratic system is a system of representative government which for present purposes carries with it the same necessary freedom of communication as has been held to exist at the Commonwealth level.

BRENNAN CJ: Then there is only one other point that needs to be considered, one would think, and that is whether there is any entrenching provision or whether any subsequent act of the Parliament can amend pro tanto the Constitution itself.

MR CASTAN: Yes, and that is dealt with in section 18, and it is perhaps desirable I take your Honour to the amendment provision and entrenching provision which is section 18 on page 19. Section 16 I should draw your Honours’ attention to, which is relied on of course by my learned friends, which is the embodiment of the general legislative power. It is expressed in section 15 as the legislative powers vested in a Parliament consisting:

of Her Majesty, the Council, and the Assembly -

and 16:

The Parliament shall have power to make laws in and for Victoria in all cases whatsoever.

I pass over section 17. Section 18:

Subject to sub-section (2) the Parliament may by any Act repeal alter or vary all or any of the provisions of this Act and substitute others in lieu thereof.

And that is, as one finds in other State Constitutions, the classic provision for amendment of the Constitution itself at large. Then the qualification on that, the manner and form provision:

It shall not be lawful to present to the Governor for Her Majesty’s assent any Bill -
(a) by which an alteration in the constitution of the Parliament, the Council or the Assembly may be made; or

(b) by which this section, Part I, Part IIA, Part III, except section 85, or Division 2 of Part V, or any provision substituted for any provisions therein contained may be repealed altered or varied -

unless the second and third readings of such Bill shall have been passed with the concurrence of an absolute majority of the whole number of the members of the Council and of the Assembly respectively.

There is one provision dealing with section 85 which has to do with the jurisdiction of the Supreme Court, which I do not think we need deal with, and then (3):

Any Bill dealing with any of the matters specified in paragraphs (a) and (b) of sub-section (2) which has not been passed with the concurrence of an absolute majority of the whole number of the members of the Council and of the Assembly respectively shall be void.

And then some limits on that. Subsection (2), the manner and form provision, shall not apply to:

(a) alter the qualifications of electors and members of the Council or the Assembly;
(b) establish new electoral provinces or districts or vary or alter any such province or district;
(c) appoint alter increase or decrease the number of members of the Council or the Assembly to be elected for an electoral province or district;
(d) increase the whole number of members of the Council or the Assembly;
(e) alter and regulate the appointment of returning officers; or
(f) make provision for the issue and return of writs -

So there is scope to amend those without the entrenching provisions, or independently of the entrenching provisions, but otherwise what we might call the basic structural Constitution of the Parliament, the Council, the Assembly as provided in section 18(2A) are entrenched. So that is the provision. It does not entrench any particular form of voting and somewhat different from the Western Australian terminology, the Western Australian entrenching provision, although, as we would respectfully submit, in substance the result is the same. There is an entrenching of the underlying structure of the Parliament, the Council or the Assembly in the manner provided.

Ultimately, what we are contending here is that the structure that is created here, the words here which have set in place this Constitution, this executive, this Parliament, the judiciary and the words in section 16 which, in fact, confer a legislative power in terms in all cases whatsoever are subject to the Parliament not interfering with the very structure that the representatives have been given the power to create and amend. Can I take your Honour to the section in particular which deals with elections?

KIRBY J: There is a significant difference though which is relevant to the first foundation of your argument and that is that the people never become part of the process. It is simply a majority of the Parliament.

MR CASTAN: That is so, your Honour. I wanted to take your Honour to section 34 and those critical words there that, in our respectful submission, are of significance in this debate. Section 34 provides that:

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

Now, that provision embodies, in our respectful submission, representative government. It says they are to be the representatives. It says more than what is in section 24 and section 7 and the equivalent section in respect of the council is section 26 which is on page 26:

The Council shall consist of 44 members who shall be representatives of and be elected by the electors of the respective provinces.

While it is true, as your Honour Justice Kirby has pointed out, that there is not that ultimate control equivalent of a section 128, there are provisions in the Constitution in its present form and in our respectful submission make it manifestly clear that what is contemplated is representative government. Those who are elected to the legislature are expressed to be the representatives of the electors.

DAWSON J: Is that provision entrenched?

GUMMOW J: It is not, is it?

MR CASTAN: It is not the answer that is - yes. I think the answer is yes because section 18(4) exempts a:

Bill to -
(a) alter the qualifications of electors and members ‑ ‑ ‑

DAWSON J: But that is Subdivision (1) of what Part?

MR CASTAN: This is Part II, your Honour.

DAWSON J: Part II is not entrenched.

GUMMOW J: You would have to rely on 18(2)(a).

MR CASTAN: It is 18(2)(a). The question of whether you interpret 18(2)(a), which deals with a Bill altering:

the constitution of the Parliament, the Council or the Assembly -

and I do not think it is otherwise covered by the other provisions. This is Part II, which is not itself explicitly entrenched other than the way in which it is in 18(2)(a) which speaks of:

the constitution of the Parliament, the Council or the Assembly -

We would respectfully submit that section 34 - the headnote says that it is, for what that is worth. Section 34 is headed “Constitution of Assembly” and that is precisely the words used in 18(2)(a). So if one was looking for the draftsman’s intention, it appears that that is precisely what was intended to be covered, namely, section 34.

TOOHEY J: Part II itself contains a number of provisions that one would not ordinarily expect to be entrenched and perhaps that is the reason why that part has not been singled out as a part.

MR CASTAN: It is not singled out, but in using the words:

the constitution of the Parliament, the Council or the Assembly -

one assumes that sections such as sections 15 and 16 are included and certainly section 34, although I see there is a different kind of heading for section 26, although it is in similar words. It is not made as explicit as it perhaps might be, but we would respectfully submit that the proper interpretation is that it is one of the entrenched provisions because there is the specific provision exempting the alteration of qualification of members.

t39.lb

BRENNAN CJ: Mr Castan, looking at this leg of your argument alone, the question is whether the impugned regulations are inconsistent with the entrenched provisions, is that right?

MR CASTAN: It is rather whether the impugned regulations are inconsistent with the functioning of the system of representative government that is provided for in this constitution, and whether they impede the functioning of the representative government for which this Constitution provides. It is that question. The entrenchment adds force to the argument, but it is not dependent on it - the entrenchment.

BRENNAN CJ: Well, I do not quite understand that, because the Constitution affirms the universality of the power of the Parliament, so that, the power of the Parliament would extend to the authorising of making of regulations of this kind. So that, we have, on the one hand, a provision of the Constitution that says the Parliament has power to make these regulations essentially.

MR CASTAN: Yes.

BRENNAN CJ: On the other, we have provisions which are entrenched which the Parliament cannot, by ordinary Bill, enact.

MR CASTAN: Yes.

BRENNAN CJ: Unless, of course, the provisions of section 18 were complied with in the case of the relevant legislation in this case.

MR CASTAN: Yes, I think it is common ground that they have not been. I do not think that is suggested.

BRENNAN CJ: Assuming that to be so, then one comes to the question of these regulations and whether they are inconsistent with that which the Parliament cannot do.

MR CASTAN: Yes, yes.

BRENNAN CJ: Is that not the relevant Constitutional question?

MR CASTAN: It is.

TOOHEY J: Why do you put it in that narrow way?

MR CASTAN: I did not want to confine it to that. I put a broader proposition, your Honour, but I did not - by putting the broader proposition, I did not want to reject your Honour’s - if I can term it that “narrower” proposition, I would adopt both. We would certainly adopt the way in which your Honours put it; that in this case it is not - the infringement, or the impairment of political communication, is an impairment of one of those components that is entrenched and, therefore, it has not been validly enacted. Yes, we do put that; but we do not confine it to that. We are not dependent, for this argument, on the entrenching.

We are seeking to say, but put it in a broader proposition, that the concept of representative government is one of the components that is set up by this Constitution. It is this Parliament - the legislative power that is vested in section 16 is a power to be exercised in accordance with the concept of representative government. It is not at large such that it might exceed whatever are the relevant limits of representative government.

TOOHEY J: But if an implication of freedom of political communication such as you argue for can be found within the language of the existing Constitution - I say if it can be - what then is the relevance of the entrenching provisions while the Constitution remains in its present form?

MR CASTAN: If I succeed on the broader proposition then one does not need the narrower basis. If I may say so, with respect, yes. If it is accepted that the implication of representative government which carries with it the ensuring of freedom of political communication or the inhibition of laws which interfere with political communication, if that limits the legislative power, then that is sufficient. If that broad proposition seems to go too wide, we would say, with respect, that any event is one of the components of the structure of the Parliament, the council and the assembly that are entrenched and the relevant legislation has not been passed that impinges on that frame of communication has not been passed in the appropriate manner and form. It is put at both levels, your Honour.

So, that is the basis on which we put it. Now, it is respectfully submitted that this Parliament in its capacity to pass laws is not at large. As we understand our learned friends, they say that that conflicts with what we might call the traditional notions of the powers of the Westminster Parliament and, in our respectful submission, that is taking a much too literal view. I have had the debate already about this earlier this morning with your Honour Justice Dawson and we would respectfully submit for the reasons that emerged in the course of that debate that the Parliament is itself inhibited by the very provisions that set up the Parliament and empower it to pass laws. It is not incapable of passing laws that prevent its representatives, the person who - those electors represent pursuant to section 34 from being fully informed about the matters that they have to vote on and one of the matters that they are being urged to vote on is a question of shooting of wildlife.

TOOHEY J: I am still having some difficulty, Mr Castan, with the precise role of the entrenched provision in this argument. I mean, I understand it, I think, in relation to the source which you describe as the source of the sovereignty of the people, but in relation to the Constitution itself, how precisely does the notion of an entrenched provision affect the matter while the Constitution remains in its present form?

MR CASTAN: If it were not accepted by one or other of your Honours this Constitution does provide for representative government and the relative components including freedom of political communication - if that were not accepted as the general way we have put it, then we would put it that, in any event, it is provided by the provisions of section 34, in particular, and 16, and that they entrenched provisions.

TOOHEY J: I understand the first step, that they are provided by those sections, but how far forward does the next step carry it?

MR CASTAN: Then the actual legislation itself is invalid; the relevant regulation has no force at all.

TOOHEY J: Yes, I understand that, but not because the provision is entrenched, because if you are putting it in that way ‑ ‑ ‑

MR CASTAN: Yes, because it has not been passed, because it does seek to amend that which is otherwise provided given that the Constitution includes a power to amend itself in restricting, if one took the view that it could, contrary to the first or the wider proposition, that Parliament could pass a law impinging on freedom of speech, doing away with representative government to that extent, if one took that view, then to do so, it would have to do so in the appropriate manner and form. That is the way the, what I will call the narrow ‑ ‑ ‑

TOOHEY J: But as Justice Gummow drew your attention to earlier, we are talking about a regulation there, or regulations.

MR CASTAN: Yes, but it cannot be that pursuant to a regulation, or the regulation-making power, not passed through the appropriate manner and form, a regulation could be made which itself effected an alteration to the Constitution that requires a manner and form compliance. That does not help the matter to be a regulation because if the regulation interferes as a matter of law with the freedom of political communication, and if that is one of the components of the entrenched elements of this Constitution, the regulation is invalid and the empowering ‑ ‑ ‑

TOOHEY J: No, I am not suggesting, of course, that the regulation has any greater force than the Act which brings it into existence, but this is an argument that if an implication of freedom of political communication can be found in the Constitution, then that is enough for your purposes.

MR CASTAN: We would say it is enough and, therefore, the law cannot be passed which does away with it, but it might be thought that - - -

TOOHEY J: That is the first step. The second step is, well, if that not be so - - -

MR CASTAN: No, no. If it be so, but 18(1) permits it to be abrogated. The Constitution - if one took - - -

TOOHEY J: Yes, I understand that. That second leg, as it were, is not an argument of implication or an argument of freedom of political communication, is it? It is an argument as to whether or not the provisions of the Constitution have been complied with?

MR CASTAN: Yes, but one needs to have made the implication, at least in relation to sections 15, 16, and 34, and if one has made the implication one can then say, “Well, a law can’t be passed which impinges on the freedom.” That is step 1, but one might say, “Well, that doesn’t matter because a law can be passed under section 8.” That is the Constitution as it stands and if a law is passed which alters that well, then, it is altering the Constitution, so that although - - -

TOOHEY J: Is that an argument that has been raised against you? I mean, on the material that is available to the Court at the moment.

MR CASTAN: I think the way in which it is put is put in its broadest, your Honour. It is said there is an absolute power to amend the Constitution and to make any other law. Included in the argument is the argument, as I understand it, that there is a power to amend the Constitution itself. I do not know that it is articulated in precisely the way that we have developed it over the last 10 minutes, but ‑ ‑ ‑

TOOHEY J: No doubt we will hear from the Solicitor in due course.

MR CASTAN: If he has not up till now, he will ‑ ‑ ‑

BRENNAN CJ: Mr Castan, do you say this, that reading the Act under which these regulations were made and the Constitution Act together, one would construe the regulation‑making power as being confined by the Constitution?

MR CASTAN: That would be our starting point, with respect, in relation to this leg of the argument, that the regulation‑making power itself could not provide for a regulation which interferes with the constitutional implication.

BRENNAN CJ: That would get you home, would it?

MR CASTAN: That would get us home.

KIRBY J: But that is the validity argument, I take it, that you argued in the Supreme Court and which is not being reagitated?

MR CASTAN: No, it is not, your Honour. The validity argument was a limited purpose argument. I think it is fair to say it had nothing to do with the question of the implication that we are here debating. That was not touched on in the Supreme Court. The current argument would lead to the conclusion that it is the legislation under which the regulation was made itself interferes with the constitutional implication.

TOOHEY J: Whereas I understand your argument, absent this sort of implication which you invite us draw, there is no challenge made to the regulations themselves.

MR CASTAN: Yes, but once one makes the implication then the regulations and the legislation under which they have been made are contrary to the provisions of the Victorian Constitution.

TOOHEY J: Yes, I understand that.

GAUDRON J: Mr Castan, is there an Interpretation Act containing any provision which might bear upon the way you would construe the regulation‑making power?

MR CASTAN: The answer to that is I think not but we would have to have a look at it, with respect, your Honour.

GAUDRON J: Thank you.

MR CASTAN: I am not able to answer that question properly at the moment but I will certainly undertake to have a look at it. Your Honours, I did want to take your Honours to a couple of other explicit provisions that assist in relation to the State Constitution. I will try and restrict them to those that are directly pertinent. Section 51 refers to:

A responsible Minister of the Crown shall not hold office for a longer period than three months unless he is or becomes a member of the Council or the Assembly.

That, of course, is the provision that provides for the responsibility of Ministers for the executive government of that State. Sections 52 and 53 also refer to the responsible Ministers dealing with matters that of themselves do not necessary benefit but they do specifically refer to the:

responsible Minister of the Crown -

That terminology is used in both 52 and 53. Can I also take your Honours to section 87A to start with, on page 76, which sets out the Executive Council of the State of Victoria; in 87B the members; the existing persons in 94:

persons who may, at any time, be members of the Executive Council in accordance with any Act;

other persons appointed to be members of the Executive Council. 87C provides for meetings and 87E is of particular significance:

Where the Governor is bound by law or established constitutional convention to act in accordance with advice -
(a) the Executive Council shall advise the Governor on the occasions when the Governor is permitted or required by any statute or other instrument to act in Council; and
(b) the Premier (or, in the absence of the Premier, the Acting Premier) shall tender advice to the Governor in relation to the exercise of the other powers and functions of Governor.

So there is a section in this Constitution which specifically documents the way in which constitutional conventions are to be exercised, although it does not provide what those constitutional conventions are and provides for the Governor to actually - actually it does require the Governor to act on advice of the Executive Council or the Premier, as the case may be.

BRENNAN CJ: Mr Castan, how long will the remainder of your argument take?

MR CASTAN: I hope only another half an hour, your Honour. I have finished now with the Victorian Constitution.

BRENNAN CJ: Mr Solicitor, how long would you expect your argument to take?

MR GRAHAM: If the Court pleases, I would expect to be, perhaps, two hours.

BRENNAN CJ: Court will adjourn until 2 o’clock this afternoon.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.10 PM:

BRENNAN CJ: Yes, Mr Castan?

MR CASTAN: Your Honours, may I respond to a question that was put to me by Justice Gaudron concerning whether there was any provision in the Interpretation Act that might be relevant to the questions raised here. I undertook to have some investigation made. There is a relevant provision which we had not had our attention drawn to previously. It is section 22 of the Interpretation of Legislation Act 1984 Victoria which provides:

Every subordinate instrument shall be construed as operating to the full extent of, but so as not to exceed -
(a) the legislative power of the State of Victoria; or
(b) the power to make the subordinate instrument conferred by the Act under or pursuant to which it is made -
to the intent that where a provision of a subordinate instrument, or the application of any such provision to any person, subject‑matter or circumstance, would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid provision to the extent to which it is not in excess of that power and the remainder of the subordinate instrument and the application of that provision to other persons, subject‑matters or circumstances shall not be affected.
(2) The provisions of this section are in addition to, and not in derogation of, any provision of a subordinate instrument or of the Act under or pursuant to which a subordinate instrument is made relating to the construction, or extent of the operation, of that subordinate instrument.

GUMMOW J: What is the name of that Act?

MR CASTAN: It is the Interpretation of Legislation Act 1984 of Victoria, Act 10096 of 1984 and it is section 22.

BRENNAN CJ: Applying that to the present regulation, does it mean you can go on if you have got a television camera with you?

MR CASTAN: No. It means to the extent that the regulation operates in a way that is not impeding political communication it is to be regarded as valid if it can be so construed but to be construed not so is to accede, or not to interfere with political communication applying it to the present instance.

BRENNAN CJ: Putting it perhaps more precisely, the regulation will be valid and prevent you from going on to the water to save a duck if that is all you want to do, but if you want to make a protest, then it does not apply.

MR CASTAN: Yes, but in the circumstances, the saving of the duck is part of a process of protest. In fact, in the circumstance in this case, there is not a process whereby there is some people who are there just to save ducks because they are involved in protest by being there and by their actions they are a form of protest which itself does attract the media and which enables them to do more than just save the ducks. For instance, one of the things it does is that it enables them to have the specimen of an illegally killed bird which can then be taken to Melbourne and publicly demonstrated. So, yes, if there was such a confined exercised not otherwise linked to protest about the issue, but the issues are inextricably intertwined, if I may say so, with respect, your Honour. I do not think they exist independently.

TOOHEY J: Mr Castan, what does the regulation say, if anything, about someone who is there at the invitation of a shooter or a member of the shooting party, although not an actual shooter?

MR CASTAN: The regulations apply. That person ‑ ‑ ‑

TOOHEY J: That person is excluded?

MR CASTAN: Excluded. They are indiscriminate. The only persons who may go are persons who have licences. I said shooters, but perhaps I should say a person who has a licence to shoot, so one could conceive of a person who obtains a licence to shoot but chooses not to shoot on a given day and so lawfully is there though not shooting, but only shooters can go. Accompanying persons, observers, the media - no one else can go in.

BRENNAN CJ: Unless they have licences.

MR CASTAN: Unless they have a licence. But there is a limit to that. There is one particular provision I should draw attention to which refers to:

the Secretary or any authorised officer or any employee of the Secretary -

of the Department of Wildlife -

acting in the course of his or her or its duties.

So there is an exception. He does not need a licence. But that is the relevant exception.

Can I respond also at this stage to a question that was put by your Honour Justice Kirby concerning the precise state of authority concerning the question of the indivisibility of debate as a matter as between Commonwealth and State instrumentalities. The position, your Honour, is that there is a clear majority of four members of the Court who have held that the nature of public discussion and the interrelationship between the various tiers of government creates an indivisibility in the freedom of ‑ ‑ ‑

KIRBY J: That was a necessary step in the reasoning in that case, was it not, in order to come to the conclusion of the Court in the orders?

MR CASTAN: It was a necessary step in the reasoning in Stephens and in Stephens, where some of the other authorities are collected one finds in 182 CLR 232, the joint judgment of Chief Justice Mason and Justices Toohey and Gaudron on this issue, and at page 257, the judgment of Justice Deane, there is a reference there to the earlier expressions of view on the matter in earlier cases. That is the case in which the indivisibility was relevant to statements made in the State context so that is the authority where it is necessary to ‑ ‑ ‑

KIRBY J: That is where Justice Deane’s embrace of the doctrine appears to be rather reluctant. It is in a short passage on 257 where his Honour says he adheres to his earlier view but he agrees, for the purpose of the case, with Chief Justice Mason and Justices Toohey and Gaudron.

MR CASTAN: No, his Honour had taken a wider view than their Honours.

KIRBY J: I see.

MR CASTAN: Not a narrower view, but he had acceded to what might be termed the somewhat narrower view in Theophanous. His Honour had in effect said - I am paraphrasing but in effect said - there was virtually no circumstance in which one could have a defence to a defamation action against a parliamentarian. That may be overstating it, but in substance had gone further than those members of the Court who had set out a criteria of reasonableness.

KIRBY J: That, of course, was in the context of a defamation law, was it not, which, of its operation, would apply equally to federal and State politicians suing in defamation in the State.

MR CASTAN: Yes.

KIRBY J: Whereas we are talking here of a duck regulation which is not addressed to federal politicians.

MR CASTAN: But the issue was not whether the principles of defamation apply to federal or State politicians. The issue was, rather, whether the State freedom, the freedom to debate issues concerning State politics or the merits or otherwise of State politicians was something that impinged on the Commonwealth’s freedom notwithstanding that it might be said - I think was said by his Honour the Chief Justice - that that was merely a State issue because it was only State politicians. So it did not turn on whether it might apply to State or federal politicians. It turned on whether the particular expressions of opinion about the particular politicians was itself apparently an exclusively State matter.

So the issue was analysed in terms of whether that could impinge on a Commonwealth freedom given that it was an apparently exclusively State debate or communication being undertaken, so that it was very much in the context of saying that it stretches across both or, to put it the other way, there is an indivisibility. One cannot characterise items as just exclusively applicable to State communication because, as the majority in the majority judgment in Stephens put it, it will necessarily or may necessarily impinge on Commonwealth freedoms.

KIRBY J: Much easier to see how a defamation act inhibits the free dialogue that is inherent in a representative democracy than to see how a regulation preventing proximity to duck shooters properly characterised inhibits or impedes representative democracy. You have got to take many steps on the path of reasoning to get to that conclusion.

MR CASTAN: In our respectful submission, it appears one may have to take very many steps but that is because one assumes here debating the matter that the question of the controversy over duck shooting and the argument whether or not Victoria should pass laws restricting duck shooting and the effect of the colourful demonstration of wounded birds or the wrong illegally shot species is solely a State matter, but, in our respectful submission, it is as good an example as any of the circumstance that it can very rapidly become or may have become a federal matter. The debate about duck shooting has many ramifications and to take one that is common to everybody, the groups that are opposed to the restrictions on gun shooting are the groups that are opposed to restrictions on gun ownership and it is not surprising that that should be so.

The debate about duck shooting carries across State lines. These regulations, these very regulations, these attempts to separate or keep protesters off the waters, are cited as examples of a good way to regulate the matter in other States where duck shooters are concerned to keep on exercising the activity of duck shooting.

There is a multiplicity of things that are around this, including issues about gun ownership, including issues about the regulation in different States. We do not seek to identify particular matters; all we say is that it is not possible to assume - it is unwise, may I say with respect - to assume that this regulation, and the protest about the issue that was involved here, is inherently or necessarily confined to State. It may have, in fact - we do not seek, your Honour, demurrer to bring evidence, but we simply say it is - the issue of shooting, the issue of animal welfare, the issue of gun control, there are a number of issues around this and they have wide-ranging implications.

One could put it another way. If the government was effectively persuaded, if it had been, or were to be effectively persuaded to do that which the plaintiff seeks - that is to say, to pass a law which restricted the shooting of which he complains, then there would be a whole different set of ramifications would flow. In other words, those who would then be equally engaged in protest, only the other way, protesting about the restriction, would then be engaging in their form of protest. It may not involve going - it may be a different exercise in some other environment, and it would rapidly become a matter at the federal level, as I mentioned this morning, where they would not doubt say, “Well, we’ll take our vengeance on the federal members of the same party who introduced the restriction that has now deprived us of this activity.”

All I put, for the purposes of the present exercise, is that it cannot, we would respectfully submit, and should not ever be assumed that because one sees it as a State regulation, and because one sees a particular protest, that that is only a State issue. In fact, one could go further. The more effective the suppression of the protest, the less likely it is to be a national issue. In other words, if enough protest is generated, a coverage of this will go national, depending on decisions made by TV executives in Sydney concerning whether they think something that occurred in Lake Buloke in Victoria is newsworthy, or in Perth, or in Darwin, or in Canberra, and the way in which politicians take up the issue at any level.

GUMMOW J: Mr Castan, are these activities you are concerned with conducted on Crown land?

MR CASTAN: Yes, they are conducted on Crown land to which there is unrestricted access at all other times.

GUMMOW J: The Wildlife Act would control shooting activities, would it, on private as well as Crown land? It may be the fact ‑ ‑ ‑

MR CASTAN: The restrictions on the taking of wildlife?

GUMMOW J: Yes, from private land as well as public land.

MR CASTAN: Yes.

GUMMOW J: So regulations could be made under section 87 of the Wildlife Act regulating the taking the licences from private land?

MR CASTAN: Yes.

GUMMOW J: And you would assert, in those circumstances, the right to use the privately owned land for your political purposes?

MR CASTAN: The exercise would be a totally different analysis would occur, because among the issues, I was going to come to reasonable proportionality. I mean, one immediately gets into a totally different situation if we are dealing with a regulation which permits an activity on private land and then persons who seek to protest want to intrude on the private land for the purpose of exercise the freedom, and the answer is, well, that is nothing to do with the regulations. You do not have a right of entry there in the first place.

GUMMOW J: But do these regulations here are the 1994 regulations, are they, of 8 March 1994?

MR CASTAN: Yes, they are.

GUMMOW J: Which is your appendix 7, and am I right in thinking that they only go to public land?

MR CASTAN: Yes, they do, and they schedule a series of lakes or waters. May I take your Honour to section 87(1)(t) which I think is responsive to the question that your Honours raised in respect of private land? Subsection (t) deals with:

prohibiting or regulating the entry of persons in upon or adjacent to any sanctuary or reserve established under the Act or any recognised wildlife habitat not on private land and prohibiting or regulating access thereto or travel -

We do not see in the categories anything that specifically provides for regulations in relation to private land but, obviously ‑ ‑ ‑

GUMMOW J: Section 22 seems to be cast very wide.

MR CASTAN: Yes. I had not found it, but I would have assumed that there are certain kinds of wildlife that can be protected.

GUMMOW J: And then section 87(1)(ba) et cetera, there are regulation‑making powers picked up from 22, but that is not this case. That is all I wanted to establish.

MR CASTAN: The generality of 22 would appear to apply on private land as well.

GUMMOW J: Yes.

MR CASTAN: But this case would be a very different case in terms of the propositions that we are putting if this was on private land. I have concluded what we would seek to say about the sources of the freedom or limitation on power for which we contend. I was going to turn briefly to the application of that limitation on power in the particular case and may I hand to your Honours a document which sets out some of the - it again is just a convenient way of trying to bring together some of the various ways in which their Honours in this Court have characterised the doctrine, and the characterisations contain some variations and we have endeavoured to set out some of the passages which, at least in a single document, bring together some of those different formulations, but assuming that one could pick up the terminology of “reasonably proportionate and adapted to the relevant purposes” - and I select that as seeming to be perhaps the common thread of the ‑ ‑ ‑

TOOHEY J: But are you using those terms synonymously?

MR CASTAN: No, I am picking up from the passage at page 388 of Justice Gaudron which is on the second page of Cunliffe’s Case, your Honour.

TOOHEY J: My question was, are you using the terms synonymously?

MR CASTAN: We would respectfully submit that the appropriate test and we do not say there is necessarily any difference between these various formulations. Ultimately, whatever way one formulates and whichever precise words one uses, there is a judgment made by the members of this Court in any given case whether a particular restriction on political communication goes so far that it is beyond power or, to put it another way, interferes with the freedom.

DAWSON J: What do you mean “beyond power”?

MR CASTAN: Beyond power.

DAWSON J: Well, what power?

MR CASTAN: I have articulated that. The limitation on power for which we contend from the three sources which I articulated this morning.

DAWSON J: It is not a matter of “beyond power” it is the extent of the limitation, is it not?

MR CASTAN: Yes, and if the power is limited then ‑ ‑ ‑

DAWSON J: No, not the power, the limitation.

MR CASTAN: Yes, there is a limitation on the ‑ ‑ ‑

DAWSON J: You say there is a restriction upon legislation inhibiting freedom of speech or communication.

MR CASTAN: Yes.

DAWSON J: Well, it is not a question of being beyond power, it must be a question of the extent of that restriction.

MR CASTAN: Yes, that is the converse of what I am saying, with respect, your Honour. I do not think there is any difference between us. I was talking about whether the power goes beyond that limitation that exists ‑ ‑ ‑

DAWSON J: Well, it is a question of what the implication is since it is an implied limitation. It is a question of the extent of the implication, is it not? It is not a question of something being beyond power.

MR CASTAN: In our respectful submission, it is a question of the extent of the restraint or limitation on the exercise of an otherwise valid purposive power which is exercised - - -

DAWSON J: But where is the purposive power?

MR CASTAN: If a power is purposive and it is expressed - - -

DAWSON J: Which power are we talking about?

MR CASTAN: In this case a regulation-making power pursuant to the - - -

DAWSON J: That is another question. It is whether it is within the regulation-making power because of the words “the regulation-making power”.

MR CASTAN: Yes.

DAWSON J: You are talking about a limitation upon legislative power by reason of freedom of communication. Now, if there is a limitation on legislation power of that sort, then it is by reason of an implication. You have arrived at that point. So, the only question is the extent of the implication, not limitations on power.

MR CASTAN: Your Honour, we are at cross-purposes, with the greatest of respect. I have submitted this morning that is not the freedom which drives the limitation. I have not put it on the basis of free-standing freedom that exists.

DAWSON J: No, I know.

MR CASTAN: I have put it on the basis that there is a restraint or limit to the way in which legislative powers may be exercised such that they do not interfere with the functioning of representative government.

DAWSON J: Precisely, and where does that limit come from?

MR CASTAN: It comes from the meaning, operation, and effect of the Constitution which confers the power.

DAWSON J: It is an implication, is it not?

MR CASTAN: Well, it is a matter of implication in the words of the Constitution, and the words of the law-making power.

DAWSON J: Very well. What we are talking about now is the extent of the implication, is it not?

MR CASTAN: Yes, but we are talking about the construction of a law‑making power conferred by the Constitution on the legislature, and we are talking about whether or not that is, as our learned friends would have it, plenary in the fullest sense or whether it is restrained by - - -

DAWSON J: This implication?

MR CASTAN: No, by an incapacity to interfere with the functioning - - -

DAWSON J: Where does the incapacity come from?

MR CASTAN: From the fact of representative government which the words of the Constitution itself - - -

DAWSON J: It is an implication, is it not?

MR CASTAN: Which are implied from the Constitution.

DAWSON J: So we are talking about the extent of the implication.

MR CASTAN: Yes, the implication that laws cannot be made - - -

DAWSON J: We are not talking about purposive powers.

MR CASTAN: In the case of purposive powers one gets to a question of proportionality. One may get there - - -

DAWSON J: Perhaps one does, but we are not talking about that.

MR CASTAN: With respect, we say that certainly it applies in purposive powers. It certainly applies in the - - -

DAWSON J: It may, but that is not what we are talking about. What is the purposive power that is relevant here?

MR CASTAN: There is a power here to make regulations under a statute which itself provides for the regulation of wildlife. The purpose expressed in the regulation itself, it is expressed to be purposive, it is expressed to be for safety.

DAWSON J: But we are not talking about whether the regulation fits within that purpose. We are talking about the extent of the regulation‑making power by reference to an implication which cuts it down, on your argument.

MR CASTAN: Yes, a limit on the power of the legislature.

DAWSON J: Yes, so we are not talking about purposive powers; we are talking about the extent of the limitation which is an implied limitation. Therefore, we are talking about the extent of the implication.

MR CASTAN: We would prefer to put our submission in terms of the limit ‑ ‑ ‑

DAWSON J: It does not make sense to me if you put it the other way.

MR CASTAN: ‑ ‑ ‑ on legislative power from which there flows an immunity from the exercise of legislative power in a way that interferes with political communication being freely expressed, but whatever it is ‑ ‑ ‑

DAWSON J: You see, the trouble with it is because you do not want to talk about a free‑standing guarantee because that then automatically brings in the question of whether or not something is appropriate and adapted to that guarantee. But, if we are not speaking about that but speaking about implications, the terms “appropriate” and “adapted” have no meaning.

MR CASTAN: Perhaps I could pick up the terms of Justice Toohey’s judgment in Cunliffe and that may be what lies behind the question that your Honour Justice Toohey addressed to me at 182 CLR 377 where your Honour, in analysing these words “reasonably adapted” and “proportionate”, at about point 6 on the page, said:

The term “reasonable proportionality” is, I suggest, better confined to situations where there is tension between operative principles. The language of “reasonably adapted” is more apposite where characterization is at issue.

That was in the context of sufficiency of connection with constitutional power.

DAWSON J: What do you get from that passage?

MR CASTAN: I was simply responding to what I thought was a question from his Honour Justice Toohey about when I used the phrase from Justice Gaudron which I had quoted in the hand‑up which I have given to the Court. Justice Gaudron’s test was expressed as whether the law is reasonably proportionate and adapted to the relevant purpose. Justice Toohey I think has suggested that there is a difference between the two.

DAWSON J: I appreciate that, but you have to be able the question: reasonably appropriate and adapted to what, or reasonably proportionate to what?

MR CASTAN: In this case the question is reasonably proportionate and adapted to the purpose of procuring ‑ ‑ ‑

GAUDRON J: What I said, if you go to my thing was “some overriding and important public interest”. If there was a curtailment of free speech, the purpose of the law will be taken to be the curtailment of that speech unless there is some other purpose to which it can be seen to be reasonably proportionate.

DAWSON J: Of course, when that is said, one is talking about a freestanding guarantee.

MR CASTAN: We are not, with respect, your Honour.

DAWSON J: Then the test of reasonable proportionality or being reasonably adapted and appropriate has no meaning.

MR CASTAN: That is not how we put, with the greatest of respect, your Honour.

DAWSON J: I know that.

MR CASTAN: What we put is that in this case there is a question of whether these regulations, as they say they are, are for the purpose of safety.

GAUDRON J: It is perhaps more appropriate for such debate as there may be about this to take place in what is eventually - or not so much debate as the difference to be exposed ultimately in the judgments, but the point is that if a law does X, you would say its purpose is to do that and whatever limitation there is, it is one that says, whether by implication or otherwise, “You can’t make laws for the purpose of limiting speech, political discussion.”

MR CASTAN: That is how we put it.

DAWSON J: I will not carry it any further.

MR CASTAN: That is how we put it and then we say on analysis what it is necessary to do is to look at these particular regulations - and I now take the Court back to perhaps the point I started this morning, which is the fact that given that what is occurring was a situation in which there were duck rescuers going into the situation in which duck shooting was taking place, a regulation was introduced which then prevented those duck rescuers from rescuing ducks, prevented them or punished them for achieving the media prominence which they, in fact, achieved and inhibited them from having this matter brought to public attention and has restrained them from what has been, as they see it, a successful campaign to change attitudes and bring about a change in the law.

KIRBY J: So your assertion is that the proper characterisation of the law, if the Court looks at its real character, is as an inhibition on free discussion rather than for the purpose of protecting the safety of people coming into proximity of shooters?

MR CASTAN: Yes, and that is apparent by looking at it because if one was concerned with safety one has Regulation 6, the next regulation. May I take your Honours to the regulations? One can see that Regulation 6, the next regulation of which there has been no breach alleged and no offence charged is that:

A person must not, at any time during the open season for duck in 1994, approach within a distance of less than 5 metres, any person who is the holder of a valid game licence authorised for the hunting or taking of game birds (including duck) who is hunting or taking game birds, in any permitted hunting area.

So there is a prohibition going within five metres of a person who is a licensed hunter and subregulation (2) provides that:

Sub‑regulation (1) does not apply to the person who is the holder of a valid game licence authorised for the hunting or taking of game birds (including duck) who is hunting or taking game birds from the same boat or from the same hide as another person.

So shooters must stay five metres from each other unless they are, in effect, together and other persons must not go near them or within five metres of them and that, we say, is specifically to deal with this question of confrontation, safety and so on. Now, the difficulty about ‑ ‑ ‑

KIRBY J: There is nothing that stops you picking up a duck. Five metres is not all that far.

MR CASTAN: No, but it ensures that those persons are not interfered with. There is no personal confrontation between a shooter and the rescuer. It would be a breach and we have no quibble with that regulation, have not suggested that there has been a breach of it.

KIRBY J: That is whilst they are hunting or taking game birds, not thereafter.

MR CASTAN: Yes, your Honour, I do not think it is suggested there is any question or issue about what happens thereafter. I am not sure that there is any question about that.

KIRBY J: Under the Victorian subordinate legislation provisions did this have to be accompanied by some statement to the committee that reviews such legislation by the Minister?

MR CASTAN: I think the answer to that is - I am reminded that there ordinarily is but in this instance there was a dispensation from that requirement so there was none.

KIRBY J: So it just went as the regulation to the committee of the Victorian Parliament and was approved by the committee or at least was not disallowed?

MR CASTAN: It was not disallowed and it duly took effect.

GUMMOW J: Now, do we have regard to these purposive objectives of regulation 1?

MR CASTAN: Well, one can have regard to them, but they do not provide the answer, because one - it is still ultimately the task of this court, in our respectful submission, to determine whether or not regulation 5, which is a blanket prohibition on all persons, regardless of what they are doing, regardless of whether their entry is dangerous or is liable to cause harm or cause danger, or cause risk, or - the difficulty with the regulation is there on its face; it does not qualify itself by reference to any activity or functioning or factor which might give rise to the danger. It just does not say, “In circumstances which are dangerous.” It does not even have the kind of thing we have in the Road Traffic Act where we distinguish between careless driving, dangerous driving, negligent driving, culpable driving - - -

KIRBY J: But this would not be the first regulation that missed its target.

MR CASTAN: Totally.

KIRBY J: I mean, what you have to effectively say is that these statements of objectives are really false, they are really misleading; that the true objective was to stop contact with the media, and that that was the real objective and that this is all decoration to mislead the public and, if necessary, to mislead this Court as to the true character of the regulation.

MR CASTAN: We say that, but we do not concede that we have to go so far as to say that. We do not have to go - - -

KIRBY J: You see, unless you do say it, we have got, on the face of it, a statutory rule which contains stated objectives for the preservation of public safety and - - -

MR CASTAN: Yes, but the Court must - sorry.

KIRBY J: And it is then rather more difficult to characterise it as in truth an inhibition on what you assert is the right of free expression implicit in the Constitution, or the other bases that you have mentioned.

MR CASTAN: But, with respect, when one analyses what has been said in the authorities, that is not precisely the task of this Court. It may be that the purpose - there may be regulations made for a proper purpose in this case - let us assume for a moment that that was the purpose - but they may not be reasonably and properly adapted to that purpose and may have the effect of impeding political communication in an appropriate way. In other words, it is one thing to have a legitimate purpose, a proper purpose, and it is another thing to enact a law which goes - which impedes freedom of political communication in an inappropriate way.

The fact that there is a proper purpose does not provide the answer to the question whether or not a law is reasonably adapted to the fulfilment of that perfectly proper purpose. It may go way beyond the purpose, impeding political communication, and, therefore, being the appropriate case, as we would contend here, struck down because it unreasonably impedes communication. It would have fulfilled the purpose that it purports to seek to fulfil by providing, as so many regulations do, including quite standard provisions in the Police Offences Act and other similar kinds of Acts, which provide that a person shall not use a weapon in a dangerous place, or behave in a manner dangerous to the public and so on and so forth. There is any number of provisions.

A classic example that is cited is the use of knives which are wielded constantly, freely and extravagantly by people in a butcher’s shop, and the same wielding of the same knife in the street is manifestly the commission of an offence because it constitutes a danger to the public.

TOOHEY J: But is it right to say that regulation 6 has no element of safety in it, when the prohibition is against approaching a person who is hunting or engaged in gaming.

MR CASTAN: No, no, regulation 6 has the safety. Regulation 5 is the one that we have been charged with.

GUMMOW J: Well, is regulation 5 the only one in respect to which you seek the declaration?

MR CASTAN: Yes, your Honour.

GUMMOW J: Not what page 13 of the book seems to suggest. But am I right in thinking that it is just regulation 5?

MR CASTAN: Yes, it is. Yes, it is regulation 5 under which we have been charged.

GUMMOW J: That is what you say but ‑ ‑ ‑

GAUDRON J: But one is looking at the pleadings which may not be entirely clear on this issue. Ultimately, as it is a demurrer, the matter has to be determined by reference to the pleadings.

MR CASTAN: I am sorry, what page was your Honour referring to?

GUMMOW J: Page 13, declaration A, the term “Hunting Season Regulation” ‑ ‑ ‑

MR CASTAN: The regulation I think is defined ‑ ‑ ‑

GUMMOW J: It is defined on page 5, 1b), is that right? It is just that regulation?

MR CASTAN: Yes. We have not sought to say that 6 is not ‑ ‑ ‑

TOOHEY J: I am sorry, my question was misleading.

BRENNAN CJ: Mr Castan, you said in answer to Justice Kirby that you do say that this regulation was made for an ulterior or improper purpose. I do not understand how counsel can say that on these documents. I could understand how a client might wish counsel to say it but, as a matter of argument, is there anything here which justifies that?

MR CASTAN: No, I think I should make it clear. The way in which we frame the argument here is not based on that argument. We have neither pleaded that it is not made for that purpose - and the material does not go to the question of purpose and we have responded by way of reply to our learned friends for New South Wales by saying that they may, with the greatest of respect, have missed the point. We do not here now challenge the purpose. We do not frame our argument in terms of saying this was not for that purpose. Perhaps I should not be misunderstood in my reply. In terms of the argument, if that is the way your Honour has framed it to me, our argument is that this is on its face made for the purpose but does not fulfil the purpose.

BRENNAN CJ: On its face made for the purpose of human safety.

MR CASTAN: Of safety. We cannot challenge and we do not challenge the expression of purpose.

BRENNAN CJ: So what you are saying is that the provision of the regulation is excessive because it goes beyond what is necessary or desirable for human safety?

MR CASTAN: Yes, but more than that - and impedes communication of the kind we have argued for.

BRENNAN CJ: It might be irrelevant if it did not, to these proceedings. But your proposition is that it goes beyond what is necessary or desirable for the fulfilment of the purpose of human protection and thereby, or in consequence at any event, is inhibiting of political discussion.

MR CASTAN: Yes. That is precisely what members of this Court have said is the situation in which one applies what were broadly called the proportionality test. Chief Justice Mason in Cunliffe expresses it very much explicitly in those terms on the document that I handed up, the first of those references under Cunliffe. As he puts it:

it is material to ascertain not only whether the provision goes beyond what is reasonably necessary for the achievement of the legitimate end -

and we assume in this case the legitimate end is the achievement of safety -

sought to be attained but also whether the provision causes adverse consequences, including infringement of fundamental values, unrelated to the achievement of that object or purpose -

That neatly encapsulates the two elements. That is why we say this is - and I responded to Justice Dawson earlier by saying it is purposive and perhaps not ‑ ‑ ‑

DAWSON J: I think you are going to have to respond in a minute again.

MR CASTAN: We are perhaps at odds over that.

DAWSON J: Mr Castan, when you have a right such as a right of free speech, such as a right which is given by the First Amendment, it cannot be absolute because it is seen that there must be permissible encroachments. The test to see whether the encroachment is permissible or not is whether the subject matter of the law in question is a permissible encroachment, such as here, the prevention of danger to persons, and then the question arises whether the law goes further than necessary. It is because it is an encroachment on a right which is established in the case of the American Constitution by the Constitution.

When you look at a passage such as the one that you read to the Court a moment ago, that is predicated upon there being such a right and then one has to find the extent to which one can encroach upon that right because it cannot be absent. That is when proportionality is relevant. You have denied that you are asserting a freestanding right and you are relying merely on an implication which inhibits legislative power. If that is so, what you read is not relevant. Do I make myself clear?

MR CASTAN: Yes, your Honour, but I would respond simply by saying that the assumption which your Honour asserts that this proposition of Chief Justice Mason was predicated is ‑ ‑ ‑

DAWSON J: If it is not predicated on that, how is proportionality relevant?

MR CASTAN: It is not predicated on the existence of a freestanding right, which seemed to be what your Honour had put to me was Chief Justice Mason - - -

DAWSON J: All right. How then is proportionality relevant?

MR CASTAN: Because what this Court has said in these cases which have been referred to, including Cunliffe ‑ ‑ ‑

DAWSON J: I want your argument, please.

MR CASTAN: We adopt what has been said on this issue, this question of proportionality, exactly in terms that are on the paper I have handed up.

DAWSON J: You cannot put it in your own words?

MR CASTAN: I would put it in the words - I adopt the words of Chief Justice Mason. It is whether the provision we would submit goes beyond what is reasonably necessarily for the achievement of a legitimate end, a safety of persons, and it is also necessary to consider ‑ ‑ ‑

DAWSON J: But you only get to the question of legitimate end if you have something that prevents it or makes it illegitimate otherwise.

MR CASTAN: No, it is a legitimate end being the end of safety and it is legitimate for the Parliament to provide for safety. The question is, does it go beyond what is reasonably necessary? We say this goes beyond it. It is that simple, your Honour. We do not have to predicate anything, with the greatest of respect. We say that here is a set of principles that have been expounded by the Court and we adopt them, we rely on them and we say that this is an instance in which it does go beyond what is reasonably necessary and the provision does cause the adverse consequences referred to by his Honour the Chief Justice.

The circumstance when this question of proportionality does arise is of most significance is when the law does achieve the legitimate purpose, in this case seeks to preserve safety. That is precisely the circumstance which is then necessary to make that judgment which this Court has said in the series of cases we have been talking about ultimately, it has to make and, again, in Cunliffe, Chief Justice Mason at page 297, he said:

Accordingly, the test of reasonable proportionality has an important role to play when the validity of a law hinges upon the proposition that it seeks to protect or enhance a subject matter or legitimate end within power.

Say, safety in this instance:

There is need to ensure that such a law does not unnecessarily or disproportionately regulate matters beyond power under the guise of protecting or enhancing the legitimate end in view.

We do not put it any higher than that. We adopt that. We say that applies here. We say that here it would be easy to frame regulations. One sees them in their dozens which deal with safety issues by providing that no person shall go in a place in a manner that endangers safety or conduct themselves in a manner dangerous and so on and so forth. There is any number of formulations that are adopted.

KIRBY J: You say that, but when I looked into the impact statement - I do not know whether that is properly before us - but when you actually look at it, there is an advertisement that was published and the stated concern of the Victoria police was the confrontation between shooters and non‑shooters and the danger to each, and that for that reason they had various options which they had to consider and they hit upon this one.

MR CASTAN: Yes. If that is the impact statement - is that the one for 1996?

KIRBY J: 1995 it is dated.

MR CASTAN: Yes. I think that is the one for 1996, or in relation to the 1996 regulations.

KIRBY J: Yes. It is in relation to the 1996 Wildlife Act.

MR CASTAN: We have a difficulty with it, and I say this quite frankly, your Honour: it states facts which, on my instructions, are simply wrong. It asserts events that did not occur. We have a controversial factual issue here. We accept that the purpose of safety was a legitimate purpose. We say that beyond that, our learned friends have come here on demurrer, and if we are to go into a whole issue of whether or not certain events occurred on the water on a certain day, then there are real difficulties.

BRENNAN CJ: But that is not the problem, is it, whether events occurred? The proposition is: here is a hunting area. Onto that hunting area during the season, those with licences may go to shoot. There are confrontations that are to be apprehended between shooters with licences and those without. The way to avoid that confrontation is to ban one of those groups from the same area.

MR CASTAN: The way to ban them, your Honour, is - it is already banned. That is covered by 6. It is expressly covered. They are not allowed to go within 5 metres of each other.

BRENNAN CJ: That is 5 metres, but if I might say so, the range of a double-barrelled shotgun is more than 5 metres.

MR CASTAN: It is not suggested here, may I so with respect, that people are shooting at each other.

BRENNAN CJ: It is not a question of shooting at each other, but there are three points that are relevant: duck, shooter and protester. It is possible for those three to be in a straight line. That is the problem that I have had, I must say, with this case right from the start. I just simply do not see how you get past the proposition that here is a known area of confrontation with one party armed with guns and from the area in which they may be shooting, those who are likely to be in confrontation are banned. I mean, what more is there to say about it?

MR CASTAN: Because, your Honour, all that is needed in order to properly deal with the safety issue is to deal with safety, not ban everybody from being anywhere in the water.

BRENNAN CJ: That is a way of dealing with safety. You prevent the risk of terrible consequences.

MR CASTAN: Your Honour, you also prevent an essential component, a political communication, because an issue has been forced to the public’s attention by this means.

BRENNAN CJ: Are we not at the stage of looking simply at whether or not the measure that is impugned is one that can be justified as necessary for legitimate purpose. Is that not the first inquiry?

MR CASTAN: No, we have to go one step further. Accepting that it is for a legitimate purpose the question is does it go too far?

BRENNAN CJ: That is the point.

MR CASTAN: Can it be done in a way that preserves the safety? We would give, as the example - - -

DAWSON J: Can it be done in a way that preserves the safety or can it be done in a way that is consistent with freedom of speech?

MR CASTAN: Consistent with both, consistent with safety and consistent with freedom of speech. It does not impede the political communication that is, in fact, taking place here and it deals with the safety issue.

DAWSON J: The right to political communication, yes.

MR CASTAN: Of course, it can, by simply providing that a person shall not go where they impede safety or, if it is confrontation over the actual bird, over seizing a bird, if that is what it is, a person shall not seize a bird which belongs to a shooter or some such provision. It is a complete ban in the area of all persons. It includes the media who are prevented from going into the water in circumstances where that is what they were doing. It is simply an at large provisions and, of course, what we also would say is that the correct way of dealing with these situations, if there is some suggestion of persons acting illegally, and what your Honour is really saying is that, “Well, the danger here is the danger that a shooter will act illegally.” A hunter will act illegally because he will use the gun in a way that he is not authorised to do. That is to say, in effect, in substance by shooting at or towards a person.

BRENNAN CJ: Mr Castan, the law is replete with examples of prohibitions on one party or another who are likely to be involved in confrontation. The marching laws, the assembly laws, are oftentimes subject to criticism for the very reason that they oppress one party to a confrontation, but the maintenance of peace and order is accepted as the primary consideration. Here is a question of life.

MR CASTAN: If I may say so, your Honour, they are not maintained where a party who seeks to act lawfully is prohibited from entering and the party who threatens or, so it is said, or potentially may perpetrate violence is prevented from perpetrating it by preventing others from coming who may be the source of the so-called provocation.

BRENNAN CJ: You may correct me, but I thought the contrary was the fact. That the whole purpose of licensing oftentimes, which has been imposed, has been imposed in the interests of peace, order and good government, to prevent the confrontations.

MR CASTAN: Various forms of licensing do that but in the context of endeavouring to engage in political communication, the one criterion that should not be adopted, in our respectful submission, is that those who are, so to speak to take the example, the marchers would be prohibited from marching because those who may see them will be aroused to anger or will be provoked in the sense of saying, “Well, they are the people we do not like so we will not have them in our neighbourhood”.

DAWSON J: In any event, you would say that the laws which his Honour refers to still have to be measured against whether they are an unreasonable incursion against freedom and communication, would you not?

MR CASTAN: Yes, we would say that.

BRENNAN CJ: There might be great justification in that as a political exercise.

MR CASTAN: No, what we are putting is that when one is looking to the way in which political communication takes place in our society, one does not look to assume that the correct way to go about preserving order is to prevent those who have something to say from saying it because in saying it others will get upset about it or will behave, let it be assumed, in a disorderly or violent way. That would be totally tilting the balance in the wrong direction. That would be entirely the wrong basis on which to make the judgment or engage in the exercise of proportionality.

One does not assume that if there were in the - the American cases are the obvious ones where it was said, of course, you would not ban Negro marchers from going into a neighbourhood merely because the Ku Klux Klan or white persons would object to those persons being in their neighbourhood and would become violent and then say, “It is a public order regulation. We cannot have these people going into this neighbourhood because it would be violent” and conversely, as the American courts held, we cannot say that because Jewish Holocaust victims would be upset by the Ku Klux Klan marching in Skokie, Illinios, that, therefore, they cannot march because there will be some potential for violence from the Holocaust victims who might be upset by the Ku Klux Klan.

You cannot take the response of the disorderly observers as the criterion for the exercise where we are concerned with political communication. Now, we have not had the numbers of examples here but certainly in those sorts of instances in the American context, one thing that the courts there would not do would be to assume that the correct balance in achieving order is to prevent those who seek to engage in political communication because there is someone who is going to be angered by their presence and behave in a disorderly way and therefore say we cannot have the relevant march.

The union picketers, say, in a work place and the contract workers seeking to enter is another example. It would not be the appropriately proportionate result to say that a law which said that the picketers must totally absent themselves from the scene because there may be some violence on the part of some other persons. The way, of course, to deal with those things is to provide that there is to be no disorderly conduct and to deal with the disorderly conduct, not ban the persons from the scene of the relevant political communication and we say that is the principle that should be adopted here.

KIRBY J: Can I just have your help on that impact statement. Is it something we should ignore or is it something we can take into account?

MR CASTAN: We would submit you should ignore it, your Honour.

KIRBY J: Why is it placed before us? Who put it in the papers?

MR CASTAN: We did not think it was.

KIRBY J: I am sorry?

MR CASTAN: I did not know that the Court ‑ ‑ ‑

KIRBY J: It has all the air of authenticity and it is there ‑ ‑ ‑

MR CASTAN: I did not know the Court had it, but we say it is full of facts which are themselves hotly ‑ ‑ ‑

KIRBY J: Does it say any more than what common sense would tell you, namely, that this is not a regular place for debate and discussion but it is a place where confrontation can and does and has taken place and that in such a circumstance it is reasonable or proportionate to prevent the confrontation by a regulation such as the present, or at least that is ‑ ‑ ‑

MR CASTAN: We would say that none of that is either a logical or reasonable conclusion and that your Honour should not use that report to assist you in reaching any such conclusion. We have had objection to extrinsic material that we have put in and we have limited our resort to it only to find that our friends are putting in material which postdates the issue of a writ and which contains facts - we have looked at it and we know it contains facts that we are instructed are just wrong, including some of the events there. It is just wrong and if we had had the opportunity to make the submissions in relation to it to the relevant authorities we would have told them and I talk about the facts, not the conclusion, and your Honours should not refer to it on a demurrer and my learned friends who criticised us for seeking to rely on extrinsic material should not have put it before your Honours. If the Court please.

BRENNAN CJ: Thank you, Mr Castan. Mr Solicitor - Mr Castan, I think Justice Gaudron wishes to ‑ ‑ ‑

GAUDRON J: Can I infer from these regulations that the ban is a ban of a total of 30 hours in two‑and‑a‑half months?

MR CASTAN: That is correct, your Honour.

GAUDRON J: And do you have anything to say about that in terms of reasonable proportionality?

MR CASTAN: Yes, I do. They are the only hours that matter.

GAUDRON J: Why are they the only hours that matter?

MR CASTAN: And that is why they are specified. Because that is when the shooters are there and that is when it all happens. That is when vast numbers of shooters go up. It is the opening of the duck season. It is a big social sporting or community or whatever one terms it, the big event for those who are in that field of activity. It is when the vast mass of the killing of birds occurs, during those hours. For the rest, although there is months of ‑ ‑ ‑

GUMMOW J: Is that because it is the second Monday - that is not right. What fixes 18 March as the opening of the season?

t67.lb

MR CASTAN: It is fixed by regulations here as being - - -

GUMMOW J: No, which one?

MR CASTAN: Because that is the season, I assume, when there is lots of ducks around.

GUMMOW J: I know, but where do I find it?

MR CASTAN: I am sorry.

GUMMOW J: I do not know about these things. Is it in these - - -

MR CASTAN: Regulations 8 and 9, your Honour.

GUMMOW J: It follows from 8 and 9, does it?

MR CASTAN: Sorry, your Honour, I am having difficulty hearing.

GUMMOW J: It follows from 8 and 9, does it?

MR CASTAN: Yes. There is a substitution of other regulations, and then it is provided in 8:

“From sunset on the second Monday in June.....until 0630.....on the third Saturday in March next following.”

That is the closed season; and so, the rest of the time it is open. But the answer to your Honour, Justice Gaudron, is that that is when the media is there, because that is when it is happening.

GAUDRON J: Well, exactly. I have, in fact, come to that conclusion. That is when you are going to get the media there. But is it not really your right to determine the content of what is broadcast, rather than your freedom of political communication that is in issue when you look to this. I mean, you could, on any other day in the two and a half months of the shooting season, if you wished, go and find the injured birds and - - -

MR CASTAN: No, there would not be any injured birds, because there are not shooters there, or there is an - one might have to track around to find an isolated shooter, or the odd shooter who is a regular, and then try and ensure that you might find the media there in order to make your point. That is not the way it is. The fact is, it is then that it all happens; and when the media is there, that is when the shooters are there, and that is when the birds all get killed, or injured, including all the protected species. That is when it happens. It should very odd, no doubt, your Honour, but - - -

GAUDRON J: Yes. Well, I am just wondering - I mean, my difficulty is this; I am not too sure that anything that has been said goes so far as to say you have got a right to take the best advantage of media presence.

MR CASTAN: Well, in the absence of the media presence, and if one goes there at any other time, it is an empty exercise. We are back to what his Honour, Justice Gummow, put to me this morning; yes, we can have, as you put it, reasonable debate, we can have talking heads on television, we can be interviewed on radio, we can be one of many, many interest groups that has many things to say about many issues. With that particular situation, when one is there during the opening of the shooting season, one has the equivalent - that is the one I mentioned this morning - the equivalent, if you like, of the clubbing of baby harp seals on the snow; a dramatic focus on a particular evil, or mischief, as the plaintiff would have it, that he seeks to draw attention to. And the reality is - we put it, the reality is that over a period of four or five years there has been a dramatic change in public views on this question. There has been a significant - it has been effective.

GAUDRON J: I do not think that ..... the legal issue at all.

MR CASTAN: So I respond by saying this communication has been the real effective communication. There is a powerful political message, we say, when one can be there. There is a zero political message if one cannot be there. It is really that simple.

BRENNAN CJ: Thank you, Mr Castan. Mr Solicitor.

MR GRAHAM: If the Court pleases. Our outline of argument was in two parts. If I could take the Court to the first, to the two pages headed, “Supplementary Submission Concerning the Form and Contents of the Plaintiff’s Submissions”, simply with a view to saying that in view of the way in which my learned friend began his submissions this morning, there is no need for me to take the Court to that part of our submissions because we have not got into contentious factual areas or difficulties arising from the facts alleged in the amended statement of claim. So if I could ask the Court to leave to one side.

Perhaps in a similar spirit of cooperation, I will indicate to the Court that I will not seek to rely upon the regulatory statement which preceded the making of the 1996 regulations which are an exact replica of the 1994 regulations, apart from the fact that I think they have a permanent operation rather than a seasonal operation only, and I will not trouble the Court with that regulatory impact statement. That much said, could I say this in general concerning the form of our submissions? The Court may have observed in looking at the outline in advance of the hearing that we do not attempt a frontal attack upon the correctness of the decisions of the Court in Theophanous or in Stephens.

DAWSON J: How can you avoid it?

MR GRAHAM: We say, your Honour, we can avoid it by reason of the series of arguments formulated in the outline and by a proper analysis of what those two cases actually decided.

DAWSON J: But the argument against you does rely on those cases. It took a little time to establish, but it did emerge, and if there is a reliance on that principle, how can one talk about the limitations on that principle when one does not know whether the principle exists?

MR GRAHAM: Your Honour, we contend that we do not have to attempt to do more than distinguish those decisions in this case.

DAWSON J: How can you distinguish them when the principle is relied upon?

MR GRAHAM: Your Honour, the principle is relied on - perhaps if I could take the two cases one at a time. Theophanous is a case that concerns the effect and operation of the Commonwealth Constitution both at Commonwealth level and at a State level in a particular context, namely freedom of communication in the context of the laws of defamation. Stephens was the State equivalent, again concerned with freedom of communication in the context of the laws of defamation. But the Court, in our submission, has not gone so far as to say that there is, arising from either a Commonwealth Constitution or any State Constitution, a right of freedom of communication which extends to all forms of communication in any context.

DAWSON J: It has. It has had political communication.

MR GRAHAM: Some members of the Court, your Honour, in formulating their reasons for decision have gone so far, but we respectfully submit that the actual decisions in those cases, when one comes to the ultimate result ‑ ‑ ‑

DAWSON J: Mr Solicitor, you cannot say that those cases were restricted to defamation, the basic principle which they expounded. You are not suggesting that, are you?

MR GRAHAM: Certainly we say that they can be so confined.

DAWSON J: Well, they could be if the cases confine them, but they do not.

KIRBY J: I must admit, Mr Solicitor, that I took the first part of your argument to be on this footing: assume for the purpose of the argument the full ambit of the Theophanous and Stephens principle - just assume that for the purpose of the argument - nonetheless this case does not come close to falling within the ambit of that principle and therefore you do not have to challenge it. You say for the purpose of it you accept it, but the facts of this case fall outside it on any view of the matter.

MR GRAHAM: With respect, that is right, your Honour, and that is why we took the view that this did not seem to be the appropriate case to revisit Theophanous and Stephens because ‑ ‑ ‑

DAWSON J: It may not seem to you but, as far as I am concerned, Mr Solicitor, in view of the submissions that have been made, I find difficulty in not looking at that principle again, particularly in view of the fact as it does no longer seem to command a majority in this Court.

MR GRAHAM: Your Honour, I certainly do not wish to shrink from the ‑ ‑ ‑

DAWSON J: Well, it seems to me that you are.

MR GRAHAM: I certainly do not wish to appear to your Honour - and I do not ‑ ‑ ‑

DAWSON J: Nevertheless, I have made my view clear.

BRENNAN CJ: The proposition is this, is it not, that there are these two cases which have been decided and, unless one party or another seeks leave to re‑examine those cases, they stand.

MR GRAHAM: Yes.

BRENNAN CJ: That may present difficulties in the enunciation of judgments for some members of the Court. But do I take it you are not seeking leave?

MR GRAHAM: Can I answer your Honour in two steps. We had thought that if the Court was attracted by the first part of the argument that we put, that which appears under Part A, the Court would probably be unwilling to grant leave and, therefore, it seemed an inappropriate case to seek leave to reopen those cases. If that is not a convenient way in which the matter should be approached, and that the matter should be regarded as only capable of being the subject of proper examination in discourse and in the writing of judgments then we, without hesitation, will seek leave to reopen and reargue the correctness of the decisions in Theophanous and Stephens in this case.

BRENNAN CJ: Well, the propositions cannot be put to the Court on conditional terms. Either an application is made or it is not.

MR GRAHAM: I follow your Honour.

DAWSON J: It looks as if you may be able to consider it overnight, Mr Solicitor.

MR GRAHAM: Your Honour, as I said, I do not wish to shrink from the need for those cases to be reconsidered. Our only concern was whether this was the case for it to be done. Could I add one further observation. As your Honours are aware, in the case that is listed tomorrow, Mann v O’Neill, reliance was to be placed by the appellant as to what might be called a fourth or fifth layer of argument, an argument of last resort upon the decisions in Theophanous and Stephens. In the middle of last week notice under section 78B was given on behalf of the respondent to tomorrow’s case that leave would be sought to challenge the correctness of the decisions in Theophanous and Stephens and if that leave was granted it would be submitted that the correctness of those decisions would be challenged.

That creates problems as does the situation which has arisen this afternoon in terms of due notice having been given under section 78B and the Court having the assistance thatit would, we would respectfully suggest, welcome in relation to this very difficult matter. The position that we had taken in relation to tomorrow’s case - we, that is the State of Victoria - was that at such short notice the Court should not grant leave, but, having regard to the way the matter has developed this afternoon, I now find myself in the position of believing that that is not going to be a position which can be upheld.

DAWSON J: A section 78 notice was given in this case, was it not?

MR GRAHAM: When the demurrer was filed I think a section 78B notice was filed by the defendants, but I am not certain, your Honour.

BRENNAN CJ: Yes, it is at page 15 of the demurrer book.

MR GRAHAM: Yes, 30 November of last year. My recollection, your Honour, is that that was given just in advance of a directions hearing before your Honour the Chief Justice in December of last year. No. May I say then that in the circumstances that have arisen we do seek leave in this case to reopen and reargue the correctness of the decisions in those two cases and put submissions in addition to those which we have included in our outline of submissions to the Court.

TOOHEY J: And if leave were granted, what would be the implications so far as other States or anyone who might wish to seek leave to intervene?

MR GRAHAM: It would be certainly appropriate for this Court to enable a proper opportunity to be given to the Commonwealth and the States to at least consider whether intervention was warranted and, if intervention were warranted, for the Court to allow that time and to give directions as to submissions, so that the Court would have that assistance.

BRENNAN CJ: The problem arises, Mr Solicitor, in this way: also, of course, that if, whatever might be the view taken as to the scope or operation of the two cases, this case falls outside it, the problem of reconsidering those cases may not arise. That raises another problem about the application for leave to reopen.

MR GRAHAM: Your Honour, perhaps inelegantly I had endeavoured to put that same proposition to the Court, that the case may not call for the reconsideration of those decisions because it can be decided.

KIRBY J: That is what I took to be the structure of your argument, why you put it in the way you did.

MR GRAHAM: That is right, your Honour. That is why ‑ ‑ ‑

KIRBY J: But could you tantalise me as to what reason you would advance for seeking leave so soon after the decisions were pronounced apart from what you assert is the uncorrectness of the decision and the change in the composition of the Court.

MR GRAHAM: The last not being permissible, your Honour. We would be submitting that they were cases that have led to - I have not got the criteria before me, but we would say that the criteria in Johns’ Case were each met by reason that the decisions were not worked out in a series of cases over a number years. They did not rest on long‑standing and long‑accepted principles, but they were decided by majority and that the members of the majority were not united amongst themselves. That was particularly true as between the then Chief Justice, your Honour Justice Toohey and your Honour Justice Gaudron on the one hand and Justice Deane on the other and one could probably develop an argument that they have led to inconvenience, certainly because there is a degree of uncertainty still as to the full scope of those cases, not so much in the law of defamation but in other fields in which the principles referred to by the members of the Bench might reach.

I think, going back to what your Honour Justice Dawson said to me, if those cases cannot be confined to the field of defamation, one is left with the question of how far do they reach, and certainly there is uncertainty in the law, if not inconvenience, resulting from those decisions. We would also seek to say that some of the observations made by members of the Court in the judgments in McGinty would provide further comfort to those who would seek to challenge the correctness of the decisions in Theophanous and Stephens in particular. Whether that challenge would go back as far as Nationwide News and ACTV is perhaps another matter, but the challenge probably does not need to reach that far for the purposes of this case.

May I add one further observation, if your Honour pleases? In discussion with my learned friend, the Solicitor for the Commonwealth and with a member of his office who has looked at the matter, the

Commonwealth did not intend to intervene in the case tomorrow and, of course, has not intervened in the case today not anticipating, I suppose, a challenge to the correctness in Theophanous and Stephens in which cases the Commonwealth made submissions.

BRENNAN CJ: Is it anticipated that any of the Solicitors will appear tomorrow?

MR GRAHAM: My present understanding is that as well as my learned friend, Mr Katz, who will appear for New South Wales, the Solicitor for Western Australia will appear. A written outline of argument is being provided to the Court by the Solicitor for South Australia but I am not certain whether he is attending or not.

BRENNAN CJ: Yes.

MR GRAHAM: I have spoken to both of my learned friends, the Solicitors for South Australia and Western Australia about this matter as to what might happen.

BRENNAN CJ: The Court will adjourn briefly ‑ ‑ ‑

MR GRAHAM: Your Honour, I understand my learned friend, Mr Castan, wished to be heard in relation to some aspect.

MR CASTAN: I only wanted to mention that I am retained in the matter tomorrow so I can say - if that is relevant to what has been put.

BRENNAN CJ: Yes. Well tell us what you can tell us about tomorrow, Mr Castan.

MR CASTAN: And that I will be putting the argument, such as it is, that has been given rise to this concern or this suggestion on the part of the respondent to that appeal that ‑ ‑ ‑

DAWSON J: But the matter is sought to be reopened in tomorrow’s case, is it, as two cases?

MR CASTAN: Well, I am not sure that it is, your Honour. In the way in which we have now formulated the argument for the appellant, I did not think really ‑ ‑ ‑

GUMMOW J: It does not seem to be in this written argument you put in in Mann.

MR CASTAN: No, I put in the written outline. That is the argument we are going to be putting. In response to that, as I understood it, the respondent indicated it was most unlikely they would pursue this threatened, perhaps, application to reopen Theophanous because all that is relied on by the appellant there in our outline and all I was going to seek to say is that we rely on the doctrine in Smithers; Ex parte Benson; access to the organs of government. Now, it does not raise a question of Theophanous although it does involve a question of defamation law in the broad sense. I cannot predict what will happen tomorrow but I simply indicate that I had not thought that such an application was going to proceed and I should indicate we are opposed to any application in this case to reopen Theophanous in the circumstances some year after the writ was issued and a demurrer filed. If the Court pleases.

MR GRAHAM: May I provide to the Court a copy of the recent 78B notice in Mann v O’Neill. I have copies for the Court.

BRENNAN CJ: Yes, all right. I think we can take it that the 78B notice is wide enough to raise the issue if the issue is raised, is that right?

MR GRAHAM: It is distinctly raised, your Honour, both the application to reopen and the argument that the cases should be reviewed and reconsidered.

BRENNAN CJ: That is all we need to know, I think, Mr Solicitor. The Court will adjourn briefly in order to consider the course it will take.

AT 3.33 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.05 PM:

BRENNAN CJ: The application which has been made by the Solicitor‑General for Victoria for leave to reopen and to reconsider the decisions of this Court in Theophanous and Stephens is an application of such importance that the Court is of the view that it ought not presently to decide that application without giving an opportunity to persons claiming and having a sufficient interest to be heard on that matter. For that reason, the Court proposes to adjourn the application and, therefore, to adjourn the remainder of this hearing to a date to be fixed. It will be necessary, I think, for the parties to keep in touch with the Registry in order to discover the date on which the matter can be resumed. Obviously, sufficient time will have to be allowed for the dissemination of the fact that the Court does stand adjourned for that purpose.

MR GRAHAM: If the Court pleases.

MR CASTAN: Your Honour, this has significant consequences in terms of costs for the plaintiff in this matter. We are taken totally by surprise in relation to this. If such an application was going to be made, it could have been made a year ago or at any time in the last year. We are prejudiced by having come here, argued and found ourselves now required to come back again on an application that is made, in effect, if I may say so, at the suggestion of the Court, or a member of the Court, members of the Court, and ourselves being in a position without any warning to even make submissions opposed to the matter going this far. In those circumstances, it is our respectful submission that an appropriate order should be made covering the costs of the plaintiff that are thrown away by this application.

BRENNAN CJ: I will hear what the Solicitor has to say. Mr Solicitor, as at present advised the Court would be minded to reserve the question of costs, bearing in mind the course that the events have taken.

MR GRAHAM: I would support that course being followed by the Court.

BRENNAN CJ: Yes. The matter will stand adjourned to a date to be fixed.

MR GRAHAM: As the Court pleases.

AT 4.08 PM THE MATTER WAS ADJOURNED
TO A DATE TO BE FIXED

[1996] HCATrans 219

Key Legal Topics

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Administrative Law

Constitutional Law

Legal Concepts

Judicial Review

Jurisdiction

Standing

Procedural Fairness

Natural Justice