Murphy v Sharples

[2006] HCATrans 250

[2006] HCATrans 250

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S462 of 2005

B e t w e e n -

DAMIEN MURPHY

Applicant

and

TERRY PATRICK SHARPLES

Respondent

Application for removal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 MAY 2006, AT 2.54 PM

Copyright in the High Court of Australia

MR J.T. GLEESON, SC:   May it please the Court, I appear with MR K.P. SMARK for the applicant.  (instructed by Freehills)

MR T.P. SHARPLES appeared in person.

GLEESON CJ:   Yes, Mr Gleeson.

MR GLEESON:   Your Honour, it is an application to remove a criminal proceeding from the local court to this Court.

GLEESON CJ:   Which local court?

MR GLEESON:   Tweed Heads.

GLEESON CJ:   Yes.

MR GLEESON: The terms of section 350 of the Electoral Act (Cth) are found in our main bundle of authorities at tab 1. The purpose of the removal is to ask this Court to determine whether the offence purportedly created by section 350 is unknown to law because the section is invalid under the Constitution.

GLEESON CJ:   Where is the allegedly defamatory material most conveniently found?

MR GLEESON:   In the application book at page 55 there is a lift‑out page and under Mr Murphy’s column headed “THE CHOICE ELECTION 2004”, in the last of four articles the material appears.

GLEESON CJ:   Just a minute.  “A dish best eaten alone”?

MR GLEESON:   Yes.

GLEESON CJ:   It is those three paragraphs?

MR GLEESON:   Yes.

GLEESON CJ:   Just give me a moment.  What stage did the proceedings reach before the magistrate?

MR GLEESON:   They have not reached any stage other than our filing of a motion to have, put colloquially, the proceedings dismissed on the ground they do not disclose an offence known to law.  It is at that point we brought the application for removal.

GLEESON CJ: So far as you are now aware, and I realise your knowledge at this stage might be incomplete, what would be the issues, apart from the validity of section 350, that would be brought before the magistrate?

MR GLEESON:   Your Honour, the procedure would be that that issue itself would be fought first by way of the motion and no other issue ‑ ‑ ‑

GLEESON CJ:   Yes, but what other issues are there?

MR GLEESON:   Yes.  If that were determined against us, there would presumably then be proceedings brought by way of appeal or prohibition.  Apart from that, if the matter proceeded, issues at the subsequent criminal proceeding could include, first of all, were any statements made which were false or defamatory? 

GLEESON CJ:   You mean by that that there would be an issue of justification?  Do you mean by that that your client says that this is true?

MR GLEESON:   Yes.

GLEESON CJ:   That sounds like a fairly substantial issue.

MR GLEESON:   I am sorry, your Honour.  Your Honours have both subsection (1) and (1A) of the section?

GLEESON CJ:   Yes.

MR GLEESON:   Under subsection (1) there is an onus on the prosecutor on the criminal standard to prove that statements were made which were “false and defamatory” and that they related “to the personal character and conduct of a candidate”.  They are the two issues upon which the prosecutor would bear the onus of proof and no other issues for the prosecutor.

GLEESON CJ:   Really, technically three issues I think, falsity, whether they are defamatory and whether they relate to the personal character or conduct.

MR GLEESON:   Yes, your Honour, and as to defamatory, probably that is simply defamatory without bringing in all of the defences in a civil defamation action, all of the other questions of fair comment, qualified privilege, justification.

GLEESON CJ:    There could be arguments about that.  You remember the litigation about the application of section 52 of the Trade Practices Act of federal elections when this Court held as a matter of construction of the statute that false and misleading statement might be saying to somebody, “The polling booth will be open to 10 o’clock at night”, but it does not include saying to somebody, to take an example used by Justice Murphy in argument in that case, “The candidate is a person of high intelligence”.

MR GLEESON:   Your Honour, there are those issues and then there is a question under subsection (1A) where an onus is cast on the accused to establish those matters there.  If I could just identify what the constitutional point is.  It is that this section clearly fails stage one of the Lange/Coleman test because it operates as a burden on communication on government and political matters and is alleged to do so in this case because the statements that the prosecutor alleges are conveyed by the article are found on page 34 of the application book.

Inter alia, on page 34 your Honours see in column one the third paragraph of the article, in column two certain factual matters asserted by the prosecutor and in column three the statements which it is said are conveyed by that paragraph and they are statements which, if conveyed, clearly impact on the suitability of the candidate for office.  So that is the real issue in the case.  It is not an artificial question of stage one of Lange. If that is right, your Honour, the constitutional question is essentially, given that stage one of the test has failed, is section 350 reasonably appropriate and adapted within stage two of the Lange/Coleman test and there are several reasons why we would be submitting it is clearly not so reasonably adapted.

The first goes back to what this Court held in Roberts v Bass where this Court held that if the statement is made on an occasion of traditional qualified privilege, then under the civil law of defamation, what the defendant will need to do is to prove the occasion of privilege and then the onus will revert to the plaintiff to prove malice, and malice was construed in the sense dealt with by your Honour in the other judgments, whereas under this section what happens is that there is no recognition to the defence of traditional qualified privilege.  Something very different happens which is that under subsection (1A) there is an affirmative burden on the accused to prove reasonable grounds for believing an actual belief of the statements being true.

GLEESON CJ: Is there any authority on the construction of section 350?

MR GLEESON:   There was authority on the English forerunner of it.  There is no Australian authority we have found which has considered it squarely.  The English forerunner ‑ ‑ ‑

GLEESON CJ:   When was the English forerunner enacted?

MR GLEESON:   In 1895 and there was a burst of litigation in the English electoral context.  One of our points as to stage two of Lange is that if your Honours look at the English provision, which is found in this same bundle, at tab 13, when the English provision was taken up by Federal Parliament in 1905 two of the critical limitations of the English provision were omitted and the first was that the prosecutor must prove the statement was made “for the purpose of affecting the return” of the candidate at the election and, secondly, your Honours see it must be “a false statement of fact”.

What has occurred in the English authorities - and we have, for instance, at tab 15 a one‑page authority of Justice Buckley in one of the early decisions of Ellis, in the second column at about point 5 it was held that because it applies to statements of fact in England it does not extend to statements of opinion which are left for free speech and the civil law of defamation.  So that in terms of whether this is reasonably adapted under the Lange test, one of the matters we would be pointing to is that two critical limitations of the English provision were deliberately forsaken by the Parliament in 1905.

GLEESON CJ:   Which would be the statements of opinion in this matter?

MR GLEESON: Well, as section 350 is framed, it will be irrelevant whether they are statements of opinion, but, for example, to say of Mr Sharples – and I will look at the third paragraph of the articles – to say he was a hopeful person standing against Mr Abbott would be a matter in the field of opinion. To make statements in the first paragraph as to the position he is in as the result of a five year pursuit of the “prize of justice” involved elements of opinion. To make statements in the second paragraph that he is a “dissident”, that his action resulted in certain matters and resulted in the exposure of another politician’s campaign are all expressions of opinion and judgment, all matters left free for debate under the English provision, but not under the Australian provision.

So, your Honours, to pull it together, the areas where it is not reasonably adapted are, first, traditional qualified privilege as per Roberts v Bass is not recognised in this provision.  Secondly, in the area of extended or Lange defamation per se where the communication is to the entire world, this Court in Lange framed the defence as an onus being on the publisher to prove reasonableness.  If I could just take your Honours to the relevant paragraph from Lange which should be in our short bundle at tab 4, page 13 of that bundle.  I will just ask your Honours to review the last paragraph of page 574 of Lange.  In determining reasonableness, one of the elements for the publisher is to show that the publisher “did not believe the imputation to be untrue”.  Your Honours in Roberts v Bass dealt with the difference between that and the stronger proposition of affirmatively believing it was true and that has not been respected in subsection (1A) because it is framed the other way round.

GLEESON CJ: Mr Gleeson, I think you said, when I asked you what was the stage of the proceedings before the magistrate, that if the matter proceeds before the magistrate you will invite him or her to decide first the question of the validity of section 350.

MR GLEESON:   Yes.

GLEESON CJ:   Why should we assume the magistrate would do that?  Is it not a basic principle of the exercise of judicial power that you do not decide constitutional questions unless and until it is necessary to decide them?  If the magistrate decides any one of five different issues that I can see in your favour, this constitutional question just will not arise.  Why would the magistrate go ahead and decide a constitutional question without deciding whether it actually arises for decision?

MR GLEESON:   We have moved the local court by a motion contending that this section states an offence unknown to law, that it is not a law that is being used to commence the criminal proceeding.  That is the question.

GLEESON CJ:   But if any one of these five issues – and by the five I mean, leaving aside questions of onus of proof, whether or not the statements are false, whether or not the statements are defamatory, whether or not the statements relate to the personal character or conduct of a candidate, whether or not your client had reasonable grounds for believing something and whether or not your client did believe something.  If any one of those five issues is resolved in favour of your client, the constitutional question simply does not arise, does it?

MR GLEESON:   Well, with respect, your Honour, that is not the way in which we would view the apple, as it were.  If we are correct on the constitutional point, this is not an offence known to law and Mr Murphy should not be vexed with this private prosecution at all.  He should not be forced to, for example, have to deal with the range of other issues.  He should not be forced to either give evidence or not give evidence.  He simply should not be vexed by this section at all.  There is no possibility of severance with this provision.  It is an integral provision.  If we are correct, it is simply an offence not known to law.  An example where that was dealt with was, of course, Lange - we refer to page 560 - and he therefore should not have to go on and deal with those issues.

Your Honour, in terms of the broader implication of it, the same provision appears in the Australian Capital Territory.  That is an identical provision to the Commonwealth provision and that is at tab 5.  Northern Territory at tab 6 has a provision which is not identical, but more closely modelled on the English provision.  It is section 90(d).  Western Australia at tab 7 has a provision - again it is not identical.  So it is a provision which exists in identical form in at least two parts of the country.  In terms of the position which the Commonwealth has taken as to the validity of the section we have enclosed at tab 10 the Committee of the Parliament’s report following the 2004 election where, at page 125 of the book, paragraph 12.39 the Committee noted:

the AEC had concerns that the section may be ineffective following –

decisions of this Court.  At page 126 the Australian Electoral Commission took the same position before the inquiry and at page 128 the Committee of the Parliament recommended the government consider amending the Act to remove the section with its criminal actions, but that has not been taken up.  In the ACT at tab 12 the relevant body in charge of the electoral process – this is page 135 in the second last paragraph – has made one of the points we seek to advance which is that the ACT provision, both in the primary offence and in the defence:

overlook the many ordinary defences that exist at common law and in statutory form.

So notwithstanding a considerable public statement that this section does have a problem under the Constitution, those responsible for removing it have not done so. Mr Murphy remains vexed by the criminal prosecution.

Could I just finally indicate to your Honours, in our short book at tab 1, your Honours will see the current provision for criminal libel in New South Wales, section 529 of the Crimes Act which follows similar provisions dating back to Fox’s Libel Act and this is the type of provision which, with respect, we would say does pass the Lange test in that one sees in subsection (3), for it to be a criminal offence there must be a publication of matter “knowing the matter to be false”.  There must be an appropriate “intent to cause serious harm”.

Under subsection (4) there is “Lawful excuse” having regard to any of the defences available under the civil law of defamation.  So they are all incorporated into the statute.  Under subsection (5):

The prosecution bears the onus of negativing the existence of a lawful excuse –

and the role of the jury is adverted to in subsection (6).  Now, your Honours, that is a provision which we submit does pass the Lange test

and the appropriate question for this Court is whether section 350 fails that test. If your Honours please.

GLEESON CJ:   Yes, Mr Sharples.

MR SHARPLES:   Well, your Honour, I have not much to say about all of this really.  I can only advert back to paragraph 13 of my application which is on page 101.  I took the view that the usual course would be that the matter would go before the magistrate and the evidence would be heard and that if there were constitutional issues decided by the magistrate or whatever, they would work their way slowly probably up to your Court.

GLEESON CJ:   Mr Sharples, when you said page 101, you are talking of page 101 of the application book?

MR SHARPLES:   That is correct.  It is paragraph 13, I think.

GLEESON CJ:   Yes, I understand, thank you.

MR SHARPLES:   Besides that, your Honour, the only useful thing I might be able to do is to deal with the matter of the recommendations that were made by the 2004 Joint Parliamentary Committee and the submission of the Electoral Commission to that committee.  Now, they are conveniently found, I believe, in the applicant’s authorities and statutory material and they are under item 10.  The Committee received a complaint by Mr William J. Bowe in respect of a prosecution that I brought against Mr Bowe along with a prosecution I brought against the applicant in this matter.  I would just like the Court to know the history of that so it is clear.

Mr Bowe published on the Internet site that he runs called “The Poll Bludgers”, words that I believed – or statements and words that I believe are contrary to section 350 and they can be found ‑ ‑ ‑

GLEESON CJ:   Why are we concerned about this, Mr Sharples?

MR SHARPLES:   Well, essentially what I am saying is the evidence before the committee was what Mr Bowe told them and, of course, the submissions from the Australian Electoral Commission.  It certainly was not what actually happened and so the Committee in that sense, I suppose, did not get the benefit of the true facts.  But in any event, it seems to me like the Electoral Commission treats the section as a dead provision so far as it practically works.  I could not get them to even write to either of the people I alleged had contravened the section during the election and I believe had they done so, at least in Mr Bowe’s case, and most probably it would not have been necessary to bring a prosecution.

The point really, your Honour, is this.  Mr Bowe republished words out of The Sydney Morning Herald and he felt fully justified in doing so.  He felt totally protected by what he understood to be the Lange extended qualified privilege.  When I spoke to him and asked him initially to retract those words, he refused, and it was only after I issued the prosecution that I could get an apology issued.  This is quite commonplace in elections, your Honour.  In fact, I rang the Electoral Commission after I discovered their submission, and at the back of my affidavit which I filed in these proceedings, there is a letter from Electoral Commission and it indicates that increasingly since the 1998 election there have been complaints lodged to it – that is, by the way, exhibit AEC 7 – there are increasing complaints being lodged to it pursuant to this section and I imagine that is going to increase with the Internet and the other methods of media that apply to political elections.

GLEESON CJ:   Thank you.

MR SHARPLES:   So it is a problem for candidates on the ground and it is obviously a problem for the Electoral Commission as far as their willingness to administrate it.  This section was the only convenient way for me to defend myself in that environment.

As for the constitutional issues, I have a view on them.  I do not necessarily think it would help if I give my view at this stage on them.  However, what I am saying to the Court is I believe the matter should have factually gone before the magistrate and I said so at the time.  I also told the magistrate I was happy to argue the constitutional question before him or her as it turned out and, indeed, the truth of it was they were prepared to deal with that question on the day and it was only when the respondent’s solicitor said that he felt the court did not have the ability to do that because the all the Attorney-Generals had not replied and we got into a situation where ultimately we were removed up here.

GLEESON CJ:   All right.  Thank you.

MR SHARPLES:   So my view has always been it should have first been subject to proof.

GLEESON CJ:   I understand that, thank you.  Mr Gleeson, one matter I did not raise with you for your comment is this.  I said there were five factual issues that might arise for determination.  It is also a possibility, is it not, that there would be issues of construction that might arise for argument?  In Coleman v Power, for example, the Court actually upheld the validity of the legislation in question but on the basis of a particular construction of the legislation.  In other words, it interpreted the legislation in a certain fashion in order to avoid problems of constitutional invalidity.

MR GLEESON:   Your Honour, there may be questions of construction, but we do not see them as being ones which could save the section from a constitutional problem.  The only one that might is the question of whether the personal character and conduct of the candidate is something which takes it necessarily outside the Lange protection.  That is not a live question, we would submit, because the consistent train of English authority has been that statements about one’s personal character and conduct as a candidate can well and often will be statements that go to one’s fitness for office.  The classic example they gave was a statement that a person, whilst sitting on a council committee, caused a contract to be awarded in favour of a relative was a statement which bore upon both public acts and on private character and conduct and was caught by the English section. 

So, your Honour, we would submit that the constitutional issue it will simply turn on is this reasonably adapted – its clear advertence – is it reasonably adapted when it does not recognise Roberts v Bass qualified privilege, it does not recognise Lange extended qualified privilege, it does not include the English limitations and it does not include limitations like the statutory law of libel in New South Wales.  They are the four questions.  None will turn on the facts.  They will simply turn on whether in those respects this is clearly not reasonably adapted.  Your Honours, that is our submission.

GLEESON CJ:   Thank you.  We will adjourn for a couple of minutes to consider the course we will take in this matter.

AT 3.20 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.22 PM:

GLEESON CJ: Proceedings brought by the respondent to this application against the applicant alleging contravention of section 350 of the Commonwealth Electoral Act 1918 are presently part heard before the Local Court at Tweed Heads. The applicant seeks the removal of the proceedings into this Court for the purpose of obtaining a decision on the constitutional validity of section 350. We have a disinclination to decide constitutional issues unless it is necessary to do so to resolve a matter.

Taking section 350 at face value, and putting to one side any questions of construction that might arise because of constitutional considerations of the kind relied upon by the applicant, there are at least five potential issues of fact that may arise for decision by a magistrate. I put also to one side in formulating these issues any question of onus of proof.

The first issue is whether the statements published by the respondent are false.  The second issue is whether they are defamatory.  The third issue is whether they relate to the personal character or conduct of Mr Sharples as a candidate.  The fourth issue is whether the applicant had reasonable grounds for believing the statement or statements to be true.  The fifth issue is whether the applicant did believe the statement or statements to be true.  Success on the part of the applicant on those issues of fact, or one or more of them, would appear to be likely to result in failure of the proceedings against the applicant. 

It will be a matter for the magistrate in the Local Court to decide the order of the proceedings in that court. It will be a matter for the magistrate to decide whether it is convenient to hive off separate issues of law whether as to the validity of section 350 or the construction of section 350 for separate consideration. Be that as it may, there are obviously substantial issues of fact that go to the merits of the dispute between the parties in this litigation. Depending upon how those issues are decided, the constitutional point may not arise. In those circumstances we are not prepared to remove the matter into this Court at this stage of the proceedings.

The application for removal is dismissed.

We will adjourn until 9.30 am on Friday, 2 June in Melbourne.

AT 3.26 PM THE MATTER WAS CONCLUDED