Nationwide News Pty Ltd v Wills

[1992] HCA 46

HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH

NATIONWIDE NEWS PTY. LIMITED v. WILLS

(1992) 177 CLR 1

30 September 1992

Constitutional Law (Cth)

Constitutional Law (Cth)—Powers of Commonwealth Parliament—Conciliation and arbitration—Industrial Relations Commission—Words calculated to bring Commission or member into disrepute—Offence—Defences—Fair comment—Justification—Validity—Implied constitutional right of free communication about matters relating to Commonwealth government—Freedom of interstate intercourse—The Constitution (63 and 64 Vict., c. 12), ss. 51(xxxv), (xxxix), 92—Industrial Relations Act 1988 (Cth), s. 299(1)(d)(ii).

Decisions

MASON C.J. The facts of this matter and the relevant statutory provisions have been related in the reasons for judgment prepared by Deane and Toohey JJ.

2. The issue for decision is whether s.299(1)(d)(ii) of the Industrial Relations Act 1988 (Cth) ("the Act") is a valid exercise by the Parliament of the Commonwealth of the legislative powers conferred by s.51(xxxv) and (xxxix) of the Constitution. The resolution of this issue necessarily depends upon the interpretation of the provision. If it be construed narrowly, in accordance with the respondent's arguments, the protection which it confers upon the Industrial Relations Commission ("the Commission) and its members will be within Commonwealth legislative power.
Interpretation of s.299(1)(d)(ii)

3. The provision creates an offence and, in common with other penal provisions, it should be construed strictly. Accordingly, in order to constitute the offence, it must be shown that the words are calculated to bring a member of the Commission into disrepute as a member of the Commission. At first glance, the absence in par.(d), in contrast to pars (a) and (c), of any limiting reference to a member acting in the exercise of powers, or in the performance of functions, of the Commission might suggest that par.(d)(ii) is concerned with the use of words calculated to bring a member into disrepute whether in his or her capacity as a member of the Commission or otherwise. But it is plain enough that par.(d)(i) is limited to words calculated to affect a member's reputation in his or her capacity as such; in that context, par.(d)(ii) must be construed accordingly. This construction of the provision affords adequate protection to the Commission and its members. It is scarcely to be supposed that Parliament intended to shield a member from personal disparagement or criticism unless the disparagement or criticism is calculated to bring the member into disrepute as a member, the more so when, as will appear, par.(d)(ii) makes no provision for defences such as justification and fair comment.

4. An alternative construction would be to say that it is a necessary element of the offence created by s.299(1)(d)(ii) to show that the words are calculated to bring a member into disrepute in the exercise of the powers, or the performance of functions, of the Commission. The language of the sub-paragraph and the absence of any reference to powers and functions, in contrast with pars (a) and (c), tell against this construction.

5. The word "calculated" in s.299(1)(d) may mean either "intended", "apt" or "likely". For the purposes of the present case little, if anything, turns on which of these possible meanings is correct. But it is as well that I should record my opinion that "likely" is the meaning of the word "calculated" in the context in which it appears in s.299(1)(d). In this respect, I agree with the view taken by Pincus J. in Howard v. Gallagher ((1) (1989) 85 ALR 495, at pp 497-498; see also O'Sullivan v.Lunnon (1986) 163 CLR 545, at pp 549, 552-553. It is significant that s.83(1) of the Commonwealth Conciliation and Arbitration Act 1904 (Cth), a legislative ancestor of the present provision, took the form:
"No person shall wilfully ... by writing or speech use words
calculated ... to bring the Court into disrepute". In that context, "calculated" could not mean "intended" ((2) See Bell v. Stewart (1920) 28 CLR 419, at pp 425-426.) It is also significant that, though the word "wilfully" now appears in sub-s.(1)(a), it finds no place in sub-s.(1)(d).

6. I am unable to see any acceptable basis for holding that special defences of the kind already mentioned, available in accordance with the law of contempt and defamation, are imported into s.299(1)(d)(ii). True it is that utterances proscribed by s.299(1)(d)(ii) could or would constitute defamatory publications and, if they related to a court or a judge instead of the Commission or a commissioner, could or would constitute a contempt of court. But that circumstance is not enough to indicate a legislative intention that defences available under the law of defamation and contempt have an application under s.299(1)(d) mutatis mutandis. The language of the paragraph provides no support whatsoever for such an interpretation. The paragraph is absolute in its terms and stands in marked contrast to other sections of the Act which, when creating offences, provide specifically for exceptions or defences ((3) See ss.303(1), 305(b), 326(1)(b), 329(1)(a) - "without reasonable excuse"; ss.315(1), (2), (3), (4), 317(2), (3), (4) - "without lawful authority or excuse"). Moreover, it would not be legitimate for the courts to adapt the statutory offence, which is designed to protect an arbitral tribunal, by reference to common law principles which have evolved solely for the purpose of protecting the courts and the administration of justice. In R. v. Taylor; Ex parte Roach ((4) (1951) 82 CLR 587, at p 598), Dixon, Webb, Fullagar and Kitto JJ. observed: "By definition contempt is confined as an offence to courses of
conduct prejudicial to the judicial power and does not extend to impairments of other forms of authority." Although the imputations made against Kirby J. in that case related to his exercise of arbitral power, the Court of Conciliation and Arbitration was entitled to find in the publications "a contempt against the administration of justice" ((5) ibid., at p 600). These imputations scandalized the Court of which Kirby J. was a judge and the Court, according to the received doctrine of the time ((6) This doctrine was refuted by Attorney-General of the Commonwealth of Australia v. The Queen ("the Boilermakers' Case") (1957) 95 CLR 529; (1957) AC 288 affirming Reg. v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254), was validly exercising both arbitral and judicial functions. Once it is appreciated that the law of contempt exists solely for the purpose of protecting the judicial power and the administration of justice and that it does not protect the exercise of arbitral power, there is no basis for engrafting onto the plain words of the statute judicially created defences fashioned on those available under the law of contempt.

7. Accordingly, the validity of s.299(1)(d)(ii) is to be determined on the footing that it makes it an offence by writing or speech to use words calculated to bring a member of the Commission into disrepute as such a member and that the special defences known to the law of contempt and defamation are not available.
Constitution: s.51(xxxv) and s.51(xxxix)

8. The applicant, Nationwide News Pty. Limited ("Nationwide"), did not, and could not, contest the proposition that the grant of legislative power in s.51(xxxv) is adequate to sustain the establishment of the Commission with its central function of settling interstate industrial disputes by means of conciliation and arbitration. However, Nationwide argued that neither s.51(xxxv) nor s.51(xxxix) singly nor the two grants of power in combination authorized the enactment of s.299(1)(d)(ii). Nationwide conceded that it was necessarily incidental to the establishment of the Commission that it be protected from conduct which would impair the performance of its functions. However, Nationwide argued that the provision is not reasonably incidental to the subject-matter of the power conferred by s.51(xxxv) because the protection goes further than is reasonably necessary, making it an offence for a person to make a true statement or a fair comment about the Commission or one of its members in circumstances in which the public has a legitimate interest in receiving the statement or comment.

9. The argument raises a question about the application of s.51(xxxv) to a matter which is incidental to the subject-matter of the power rather than a question about the scope of the incidental power contained in s.51(xxxix). The distinction between the two is well recognized ((7) See the discussion by Dixon C.J. in Burton v. Honan (1952) 86 CLR 169, at pp 177-179.). Each specific grant of legislative power in the Constitution extends to all matters incidental to the subject-matter of the power which are "necessary for the reasonable fulfilment of the legislative power" ((8) ibid., at p 177) over that subject-matter. Or, to put it another way, the specific substantive power extends to matters "the control of which is found necessary to effectuate its main purpose" ((9) Grannall v. Marrickville Margarine Pty. Ltd. (1955) 93 CLR 55, per Dixon C.J., McTiernan, Webb and Kitto JJ. at p 77.). On the other hand, s.51(xxxix) is directed not so much to matters incidental to the nominated subject of legislative power but rather to the execution of the various powers vested in the three branches of government. So here we must look to the incidental scope of the power conferred by s.51(xxxv).

10. The formulations to which I have just referred are not without their difficulties. The first formulation impliedly assumes and the second expressly assumes that a legislative power has a main purpose or object. As very few of the Parliament's legislative powers are truly purposive powers, the reference to purpose or object in this context has a wider meaning. The ascertainment of what is the main purpose or object of a particular power may in some cases be a matter of some difficulty. But in the case of s.51(xxxv) no such difficulty arises. The main, if not the sole, purpose or object of the power is the prevention and settlement of interstate industrial disputes and the sole means of achieving that object is by means of conciliation and arbitration ((10) Australian Boot Trade Employes' Federation v. Whybrow and Co.(1910) 11 CLR 311, per Isaacs J. at p 338; R. v. Kelly; Ex parte State of Victoria (1950) 81 CLR 64.).

11. The second difficulty which arises from the formulations already quoted is to be found in the use of the word "necessary". If one thing emerges clearly from the decisions of this Court it is that, to bring a law within the reach of the incidental scope of a power, it is enough that the provision is appropriate to effectuate the exercise of the power; one is not confined to what is necessary for the effective exercise of the power ((11) Alexandra Private Geriatric Hospital Pty. Ltd. v. The Commonwealth (1987) 162 CLR 271, at p 281; Attorney-General (W.A) v. Australian National Airlines Commission (1976) 138 CLR 492, per Stephen J. at p 515.)

12. In the present case, the provision which is in contention does not fall fairly and squarely within the core of the subject-matter of the power. That is because the operation of the provision is not confined to the prevention and settlement of interstate industrial disputes by conciliation and arbitration; the provision extends to impose penal obligations on persons who stand outside the subject-matter of the power as so described. To sustain the validity of s.299(1)(d)(ii) on the footing that it comes within the scope of the incidental reach of the power, it must appear that there is a relevant and sufficient connection with the subject-matter of the power. In determining whether such a connection exists, it is material to have regard to the purpose of the provision ((12) Bank of N.S.W. v. The Commonwealth ("the Bank Nationalization Case") (1948) 76 CLR 1, per Dixon J. at p 354; The State of Victoria v. The Commonwealth ("the Second Uniform Tax Case") (1957) 99 CLR 575, per Dixon C.J. at p 614.) and to the reasonableness of the connection between that law and the subject-matter of the power ((13) Burton v. Honan (1952) 86 CLR , per Dixon C.J. at p 179.) It has been said that the "end or purpose of the provision ... will give the key" ((14) The Bank Nationalization Case (1948) 76 CLR , per Dixon J. at p 354) and there is authority to support the proposition that, if the purpose of the provision is within power, it is valid, notwithstanding that the difficulties created for many persons are out of all proportion to the advantage gained.

13. Herald and Weekly Times Ltd. v. The Commonwealth ((15) (1966) 115 CLR 418) was such a case. In furtherance of a policy of ensuring freedom of competition between television services, which was within power, the statute established a regulatory regime covering many concrete situations where it was most unlikely that the person concerned would be able to exercise any degree of control or even influence. In some situations, there was no foothold for the exercise of influence. Nevertheless, the statute was held to be valid. Kitto J. (with whom Taylor, Menzies, Windeyer and Owen JJ. agreed) said ((16) ibid., at p 437): "How far they should go was a question of degree for the Parliament
to decide, and the fact that the Parliament has chosen to go to great lengths - even the fact, if it be so, that for many persons difficulties are created which are out of all proportion to the advantage gained - affords no ground of constitutional attack." That statement seems to suggest that, if the purpose of the impugned law is within power, that is enough, no matter that the connection between the law and the subject-matter is remote and that the difficulties created for many persons affected are out of all proportion to the advantage gained. Taken in isolation, the statement may also appear to suggest that matters of degree are for Parliament and not for the Court.

14. Nevertheless, it has long been accepted that it is for the Court to determine whether there is a reasonable connection between the law and the subject-matter of the power ((17) Jumbunna Coal Mine, No Liability v. Victorian Coal Miners' Association (1908) 6 CLR 309, per Barton J. at p 345) and that this is very often largely a question of degree ((18) Burton v. Honan (1952) 86 CLR , per Dixon C.J. at p 179; British Medical Association v. The Commonwealth (1949) 79 CLR 201, per Dixon J. at pp 274-275). In other words, the question of degree is not merely a matter for Parliament; although the Court will give weight to the view of Parliament, it is a matter for the Court in determining whether a reasonable connection exists.

15. Despite the observations of Kitto J. quoted above, this Court has held that, in characterizing a law as one with respect to a permitted head of power, a reasonable proportionality must exist between the designated object or purpose and the means selected by the law for achieving that object or purpose ((19) The Commonwealth v. Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1, per Deane J. at p 260). The concept of reasonable proportionality is now an accepted test of validity on the issue of ultra vires ((20) South Australia v. Tanner (1989) 166 CLR 161, at p 165). It is a test which governs the validity of statutes as well as that of regulations. So, in Castlemaine Tooheys Ltd. v. South Australia ((21) (1990) 169 CLR 436, at pp 473-474), in deciding whether a law was appropriate and adapted to the protection of the environment, in which event the law would have been valid, it was necessary to consider whether the adverse or extraordinary consequences of the law were disproportionate to the achievement of the relevant protection.

16. In Davis v. The Commonwealth ((22) (1988) 166 CLR 79), the test of reasonable proportionality was applied, at least by the majority of the Court ((23) ibid., Mason C.J., Deane and Gaudron JJ.; Toohey J. concurring on this question), in invalidating s.22(6)(d)(i) of the Australian Bicentennial Authority Act 1980 (Cth) to the extent that it related to the expression "200 years". Section 22 was a provision designed to protect the name, property and interests of the Bicentennial Authority. Sub-section (1)(a) made it an offence, without the consent in writing of the Authority, to use the name of the Authority, a prescribed symbol or a prescribed expression in connection with a business, trade, profession or occupation. Sub-section (6)(d)(i) prescribed various expressions, including "200 years", some of which were in common or everyday usage. Sub-section (6)(d)(ii) prescribed any other word or words when used in conjunction with "1788", "1988" or "88". The majority of the Court held that, even if the sole purpose of the provision was to protect the commemoration of the Bicentenary or the attainment of the objects of the Authority, the regime of protection was grossly disproportionate to the need to protect the commemoration of the Bicentenary. In reaching that result, the majority considered that the intrusion into freedom of expression was so great as to preclude the conclusion that the means adopted were reasonably and appropriately adapted to achieve ends that lay within the reach of constitutional power.

17. After stating that the use of certain prescribed expressions in countless situations "could not conceivably prejudice the commemoration of the Bicentenary or the attainment by the Authority of its objects" ((24) ibid., at pp 99-100), Mason C.J., Deane and Gaudron JJ. stated ((25) ibid., at p 100): "It is therefore no answer to say that the Authority's power to
refuse written consent is exercisable only for the purpose of ensuring such protection, assuming that to be a permissible construction of s.22(1). Here the framework of regulation created by s.22(1)(a) with s.22(6)(d)(i) and (ii) reaches far beyond the legitimate objects sought to be achieved and impinges on freedom of expression by enabling the Authority to regulate the use of common expressions and by making unauthorized use a criminal offence. Although the statutory regime may be related to a constitutionally legitimate end, the provisions in question reach too far. This extraordinary intrusion into freedom of expression is not reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power."

18. Brennan J., who reached a similar conclusion by a rather different route, regarded the impact of the provisions on freedom of expression as critical. His Honour said ((26) ibid., at p 117): "(I)t cannot be incidental to the organization of the commemoration
of the Bicentenary to prohibit, under criminal sanctions, the peaceful expression of opinions about the significance of the events of 1788. By prohibiting the use of the symbols and expressions apt to express such opinions, ss.22 and 23 forfeit any support which s.51(xxxix) might otherwise afford."

19. Davis establishes two propositions. First, that, even if the purpose of a law is to achieve an end within power, it will not fall within the scope of what is incidental to the substantive power unless it is reasonably and appropriately adapted to the pursuit of an end within power, i.e., unless it is capable of being considered to be reasonably proportionate to the pursuit of that end ((27) South Australia v. Tanner (1989) 166 CLR , at p 165). Secondly, in determining whether that requirement of reasonable proportionality is satisfied, it is material to ascertain whether, and to what extent, the law goes beyond what is reasonably necessary or conceivably desirable for the achievement of the legitimate object sought to be attained and, in so doing, causes adverse consequences unrelated to the achievement of that object. In particular, it is material to ascertain whether those adverse consequences result in any infringement of fundamental values traditionally protected by the common law, such as freedom of expression ((28) The fundamental importance of freedom of expression in modern democratic society is recognized in the following statements: The Commonwealth of Australia v. John Fairfax and Sons Ltd. (1980) 147 CLR 39, per Mason J. at p 52: "It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action."

Attorney-General v. Times Newspapers (1974) AC 273, per Lord Simon of Glaisdale at p 315:
"The first public interest involved is that of freedom of discussion in democratic society. People cannot adequately influence the decisions which affect their lives unless they can be adequately informed on facts and arguments relevant to the decisions. Much of such fact-finding and argumentation necessarily has to be conducted vicariously, the public press being a principal instrument." Smith v. Daily Mail Publishing Co. (1979) 443 US 97, per Rehnquist J. at p 106:
"Historically, we have viewed freedom of speech and of the press as indispensable to a free society and its government."
See also Hector v. Attorney-General of Antigua (1990) 2 AC 312, per Lord Bridge of Harwich at p 318).

20. The purpose of s.299(1)(d)(ii) is, without any doubt, to protect the Commission, and its members, with a view to preserving its reputation and public confidence in its determinations. Subject to the requirement of reasonable proportionality, the attainment of these objects would enhance the prevention and settlement of interstate industrial disputes by means of conciliation and arbitration and thus fall within the purview of s.51(xxxv) because the Commission is the paramount agency in that activity in Australia and its determinations have a critical impact on the Australian economy. The means chosen by the Parliament is to protect the Commission and its members from any disparagement and criticism which is calculated to bring the Commission or any of its members into disrepute. The problem is that the means chosen is far more restrictive than the protection conferred by the law of contempt upon the courts and the administration of justice and that the means chosen, if valid, makes it an offence to criticize the Commission or any of its members, even if the criticism is based on facts which are true and consists of comments which are fair.

21. This is not the occasion to state in a definitive way the extent of the protection conferred by the law of contempt upon the courts and the administration of justice. It is sufficient to say that scandalizing the court is a well-recognized form of criminal contempt ((29) Bell v. Stewart; R. v. Fletcher; Ex parte Kisch (1935) 52 CLR 248; R. v. Dunbabin; Ex parte Williams (1935) 53 CLR 434; Gallagher v. Durack (1983) 152 CLR 238, at p 243), though it was at one time said to be obsolete ((30) McLeod v. St. Aubyn (1899) AC 549, at p 561), and that it consists of any act done or writing published which is calculated to bring a court or a judge of the court into contempt or to lower his or her authority ((31) Reg. v. Gray (1900) 2 QB 36, at p 40; Arthur Reginald Perera v. The King (1951) AC 482, at p 488). However, at common law no contempt is made out if all that the defendant does is to exercise his or her ordinary right to criticize, in good faith, the conduct of the court or the judge ((32) Ambard v. Attorney-General for Trinidad and Tobago (1936) AC 322, per Lord Atkin at p 335; Reg. v. Gray (1900) 2 QB, at p 40). Courts and judges are open to criticism ((33) Reg. v. Gray (1900) 2 QB, at p 40). As Black J. observed in Bridges v. California: ((34) (1941) 314 US 252, at pp 270-271; cited with approval in Landmark Communications Inc. v. Virginia (1978) 435 US 829, at p 842)
"The assumption that respect for the judiciary can be won by
shielding judges from published criticism wrongly appraises the character of American public opinion. ... an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect". So long as the defendant is genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, he or she is immune ((35) R. v. Dunbabin; Ex parte Williams (1935) 53 CLR , at p 442). In R. v. Dunbabin; Ex parte Williams, Rich J., with reference to the summary jurisdiction to punish for contempt, said ((36) ibid., at pp 442-443. The statement by Rich J. was accepted asan accurate statement of the law in Gallagher v. Durack (1983) 152 CLR , at p 243):

"It is not given for the purpose of restricting honest criticism based on rational grounds of the manner in which the Court performs its functions. The law permits in respect of Courts, as of other institutions, the fullest discussions of their doings so long as that discussion is fairly conducted and is honestly directed to some definite public purpose. The jurisdiction exists in order that the authority of the law as administered in the Courts may be established and maintained."

This approach is based upon the underlying view that "(f)air criticism of the decisions of the Court is not only lawful, but regarded as being for the public good", to repeat the words of Evatt J. in R. v. Fletcher; Ex parte Kisch ((37) (1935) 52 CLR , at p 257). However, as his Honour went on to point out ((38) ibid., at pp 257-258), "the facts forming the basis of the criticism must be accurately stated, and the criticism must be fair and not distorted by malice".

22. It is not only in the respects just mentioned that the protection given to the courts and the administration of justice is distinctly more restricted than that sought to be given to the Commission by s.299(1)(d)(ii). Generally speaking, because the good sense of the community is a sufficient safeguard against scandalous disparagement of a court or judge, the summary jurisdiction is rarely exercised ((39) Gallagher v. Durack (1983) 152 CLR , at p 243). True it is that, in cases in which the summary jurisdiction is not exercised, the matter may be left to the ordinary processes of the criminal law. But, in cases of the class now under consideration, the law of contempt and the protection which it confers have centred on the exercise by the courts of the summary jurisdiction which has no parallel in the realm of federal tribunals such as the Commission.

23. In considering whether the protection sought to be given to the Commission is so disproportionate as to lead to the conclusion that the protection stands outside the incidental scope of the substantive power, two points are, in my view, of paramount importance. First, as the courts have come to the conclusion that only the degree of protection accorded to the courts and the administration of justice by the law of contempt can reasonably be justified in the public interest, how can this Court now decide, consistently with that view, that a much larger degree of protection of the Commission and its members is capable of being considered to be justified in the public interest? As I have said, the Commission is the paramount agency in Australia in preventing and settling industrial disputes and no one could deny that, in the highly charged, contentious world of industrial relations, the reputation of the Commission for integrity, objectivity and fairness is vitally important. Public acceptance of the Commission's determinations is essential to the stability of industrial peace and harmony. But no less important is the interest of the public in ensuring that the Commission and its activities should be open to public scrutiny and criticism. That interest, it seems to me, is just as fundamental in the case of the Commission as it is in the case of the courts and the administration of justice. Viewing the question from the perspective of the need to protect the Commission, there may be a case for saying that the Commission's need is greater than that of the courts. Because the Commission is not a court, its decision-making processes differ from curial processes and it deals with industrial disputes, it can be said that it does not have the standing and status in the public mind which the court system enjoys. On this argument, its reputation needs a greater degree of protection. I am prepared to assume, without deciding, that there is force in this argument. However, it is in any event outweighed by the strength of the public interest in public scrutiny and freedom to criticize.

24. This conclusion leads me into the second point of relevance to the issue of proportionality. In deciding an issue of proportionality in the context of the incidental scope of a substantive legislative power, the Court must take account of and scrutinize with great anxiety the adverse impact, if any, of the impugned law on such a fundamental freedom as freedom of expression, particularly when that impact impairs freedom of expression in relation to public affairs and freedom to criticize public institutions. Recognition of the paramount importance of freedom of expression and of criticism of public institutions has strongly influenced the formulation of the principles of the law of contempt. It is inevitable that recognition of that importance must govern the Court's present decision on whether s.299(1)(d)(ii) has a relevant connection with the subject-matter of the legislative power.

25. It follows that, in my opinion, such a connection is absent and that the provision is not supported by s.51(xxxv) and s.51(xxxix). In reaching this conclusion, I have not found it necessary to deal with the applicant's arguments based on the existence of an implied guarantee of freedom of communication on matters of public affairs and an express guarantee of freedom of communication contained in s.92.

26. I am unable to discern any manifestation of legislative intention which would enable the Court to save the validity of any part of the provision. The reasons which I have given for refusing to read the provision in accordance with the principles of the law of contempt and the law of defamation are relevant to this conclusion.

27. It is for these reasons that I concluded that the questions in the stated case should be answered as follows:
1.(a) Yes.
(b) Unnecessary to answer. (c) Unnecessary to answer. 2.(a) No. (b) Unnecessary to answer. (c) Unnecessary to answer.

BRENNAN J. Nationwide News Pty. Ltd. ("the defendant") is the holding company of the proprietor of "The Australian", a newspaper with a circulation throughout Australia. On 6 June 1990, the prosecutor laid an information for an offence alleging that the defendant "on the 14th day of November 1989 at Sydney in the ... State (of New South Wales) ... did by writing use words calculated to bring the Australian Industrial Relations Commission into disrepute, contrary to s.299(1)(d)(ii) of the Industrial Relations Act 1988". The information relates to an article written by the late Mr Maxwell Newton and published in "The Australian" on 14 November 1989 under the heading "Advance Australia Fascist". Section 299(1) of the Industrial Relations Act 1988 (Cth) ("the Act") reads as follows:
"A person shall not:

(a) wilfully insult or disturb a member of the Commission in the exercise of powers, or the performance of functions, as a member;

(b) interrupt the proceedings of the Commission; (c) use insulting language towards a member of the Commission exercising powers, or performing functions, as a member; or (d) by writing or speech use words calculated: (i) to influence improperly a member of the Commission or a witness before the Commission; or

(ii) to bring a member of the Commission or the Commission into disrepute. Penalty:

(a) in the case of a natural person - $500 or imprisonment for 6 months, or both; and

(b) in the case of a body corporate - $1,000."

2. The defendant challenged the validity of s.299(1)(d)(ii) and Wilcox J. stated for the opinion of the Full Court of the Federal Court a case reserving the question, inter alia: "Is s.299(1)(d)(ii) of The Industrial Relations Act 1988
(Cth) a valid law of the Commonwealth within the provisions of the Australian Constitution?" So much of the proceedings pending in the Federal Court as involves the interpretation of the Constitution was removed into this Court pursuant to s.40(1) of the Judiciary Act 1903 (Cth). After argument on the question removed, a further case was stated by the Chief Justice, and the matter was relisted and further argued. The case stated by the Chief Justice set out facts on which the defendant seeks to rely in order to claim immunity under s.92 of the Constitution with respect to the publication of the matter complained of in the information. Those facts are set out in pars 1 to 12 of the case; par.13 of the case states -

"At the hearing of the information the respondent (the prosecutor) intends to rely, in support of the charge, on the printing, publication, and (insofar as it may be material) distribution, for sale, of the relevant edition of the newspaper in Sydney, New South Wales, and not upon its transmission to, printing, publication or distribution for sale in, other places."

The case reserves two sets of questions for the opinion of the Full Court of this Court, the first set relating to the circumstances mentioned in pars 1 to 12 of the case, the second relating to the circumstances mentioned in pars 1 to 13. The first set of questions reads as follows:

(a) Is s.299(1)(d)(ii) of the Industrial Relations Act invalid? (b) Does s.92 of the Constitution prevent the application of s.299(1)(d)(ii) of the Industrial Relations Act to the printing, publication and distribution for sale by the applicant of the article by Mr Maxwell Newton in "The Australian" newspaper on 14 November 1989?

(c) Does any guarantee implied by the Constitution prevent the application of s.299(1)(d)(ii) of the Industrial Relations Act to the printing, publication and distribution for sale by the applicant of the article by Mr Maxwell Newton in "The Australian" newspaper on 14 November 1989?

The second set of questions raises substantially the same issues but focusses on par.13 and accordingly omits reference to "distribution" of "The Australian".

3. In its final form, the defendant's challenge to the validity of s.299(1)(d)(ii) of the Act falls under two heads: (1) implied in the Constitution there is a guarantee of a freedom to voice criticisms of governmental institutions subject to reasonable legal restraints and s.299(1)(d)(ii) offends that guarantee; (2) s.299(1)(d)(ii) is a restriction on the content of an interstate communication in excess of the limits of reasonable regulation and, on that account, is struck down by s.92 of the Constitution or, alternatively, there is implied in the Constitution a limited freedom to communicate between a State and Territories criticisms of instrumentalities of the Commonwealth Government subject to reasonable legal restraints. We must start our consideration of the validity of s.299(1)(d)(ii) by ascertaining its operation.
The operation of s.299(1)(d)(ii)

4. Paragraphs (a), (b), and (c) of s.299(1) confer protection on the Australian Industrial Relations Commission ("the Commission") and on the members of the Commission in the performance of the functions assigned to the Commission or to those members by the Act ("official functions"). Paragraph (d)(i) protects members of the Commission from attempts to influence them improperly in the exercise of their official functions. But par.(d)(ii) is not confined in terms to official repute or repute relevant to the performance of official functions. In terms, it protects the Commission and its members from any oral or written communication that would be likely to bring them disesteem, discredit, disgrace or dishonour ((40) Bell v. Stewart (1920) 28 CLR 419, at pp 425, 426) in any respect. It is possible to read "disrepute" in par.(d)(ii) as relating not only to disrepute relevant to the performance of official functions but also to purely private disrepute. But to read "disrepute" in that way is to ignore the context in which par.(d)(ii) appears. Section 299(1)(a), (b), (c) and (d)(i) protect the capacity of the Commission and its members to perform the important functions that are assigned to them by the Act and the integrity of the Commission and its members in performing those functions. Those provisions are designed chiefly for the purpose of establishing and maintaining public confidence in the Commission and acceptance of the Commission's authority in the exercise of its powers. In my view, par.(d)(ii) should be understood to have the same purpose. It is not designed to protect every aspect of the repute of individual members of the Commission, whether related to the performance of official functions or not. Construing par.(d)(ii) in that way, its application is restricted to writing or speech which is calculated to bring the Commission or a member into disrepute in a respect that is relevant to the Commission's or the member's performance of official functions. This is the meaning which I understand Keely J. to have given to the corresponding provision of the Conciliation and Arbitration Act 1904 (Cth) - the statutory predecessor of s.299(1)(d)(ii) of the Act - in Howard v. Gallagher ((41) (1988) 79 ALR 111, at p 122):
"In my opinion the ordinary meaning of s 182(1)(d)(ii),
read in its context, is that it forbids the use of words calculated to bring into disrepute a member of the Commission, as such, or the Commission itself, as such; it cannot be confined to events which occurred before or during proceedings in the Commission." Paragraph (d)(ii) thus extends to writing or speech which is calculated to impugn the capacity of the Commission or of a member to perform official functions, or to impugn the integrity of the Commission or of a member in a respect that touches the performance of official functions or to impugn a decision taken or a course pursued by the Commission or a member in performing official functions where the attack asserts such a departure from proper standards of decision-making or official conduct as to "forfeit the respect of the community" ((42) Bell v. Stewart (1920) 28 CLR , at p 426). Paragraph (d)(ii) does not protect the repute of a member of the Commission in a respect that is irrelevant to public confidence in the Commission or to the acceptance of the Commission's authority in the exercise of its powers. However, par.(d)(ii), unless it be read down, suppresses writing or speech that attacks the repute of the Commission or a member even where the attack is warranted. Facts or criticisms bringing the Commission or a member into disrepute are all suppressed, though the facts be true ((43) Cf. Howard v. Gallagher (1989) 85 ALR 495, at p 500) and the criticisms be fair and reasonable. There is nothing in the statutory context which suggests par.(d)(ii) should be read down to permit an attack if the attack is warranted. Indeed, the purpose of s.299(1) is more amply fulfilled by interpreting par.(d)(ii) as prohibiting warranted attacks. Given that official repute is the subject of protection by par.(d)(ii), an attack on that repute based on facts that are true or consisting in criticisms that are fair and reasonable is likely to be more damaging to that repute than an attack alleging facts that are false or making criticisms that are unfair and unreasonable.

5. The scope of par.(d)(ii) is significantly broader than the scope of that part of the law of contempt by which the repute of courts is protected. That part of the law of contempt known, archaically, as "scandalizing the court", is designed to prevent public confidence in the courts from being shaken by attacks that are baseless and unwarrantable ((44) Gallagher v. Durack (1983) 152 CLR 238, at p 243). The jurisdiction to punish for contempt, as Rich J. said in R. v. Dunbabin; Ex parte Williams ((45) (1935) 53 CLR 434, at p 442) -
"is not given for the purpose of protecting the Judges
personally from imputations to which they may be exposed as individuals. It is not given for the purpose of restricting honest criticism based on rational grounds of the manner in which the Court performs its functions. The law permits in respect of Courts, as of other institutions, the fullest discussions of their doings so long as that discussion is fairly conducted and is honestly directed to some definite public purpose." Thus it has been said ((46) R. v. Fletcher; Ex parte Kisch (1935) 52 CLR 248, at pp 257-258) that it is no contempt of court to criticize court decisions when the criticism is fair and not distorted by malice and the basis of the criticism is accurately stated. To the contrary, a public comment fairly made on judicial conduct that is truly disreputable (in the sense that it would impair the confidence of the public in the competence or integrity of the court) is for the public benefit ((47) See R. v. Nicholls (1911) 12 CLR 280, at p 286). It is not necessary, even if it be possible, to chart the limits of contempt scandalizing the court. It is sufficient to say that the revelation of truth - at all events when its revelation is for the public benefit - and the making of a fair criticism based on fact do not amount to a contempt of court though the truth revealed or the criticism made is such as to deprive the court or judge of public confidence. The critical difference between the scope of s.299(1)(d)(ii) and the scope of contempt of court is that the latter does not purport to suppress justifiable or fair and reasonable criticism which exposes grounds for loss of official repute, but s.299(1)(d)(ii) purports to suppress all criticism which is likely to bring the Commission into disrepute including criticism that is justifiable, fair and reasonable.

6. Nor is s.299(1)(d)(ii) comparable with the law of sedition. It is sufficient for the purposes of par.(d)(ii) that an attack is calculated to bring the Commission or a member into disrepute, but sedition involves an excitement to disaffection against the Sovereign, the Constitution or the institutions of government ((48) Burns v. Ransley (1949) 79 CLR 101, at pp 110, 111, 115; R. v. Sharkey (1949) 79 CLR 121, at pp 135-136, 145, 148). Criticism of a merely political kind directed at the holders of public office for the time being, even if it brings those holders of office into disrepute, does not amount to sedition ((49) Burns v. Ransley (1949) 79 CLR , at p 115). There is nothing in the text or context of s.299(1)(d)(ii) which suggests that its operation should be limited in the same way as the law of contempt is limited, or which suggests that the disrepute to which it refers should be understood as the equivalent of disaffection in the law of sedition. Section 299(1)(d)(ii) purports to apply without qualification to any speech or writing that is calculated to bring the Commission or a member into disrepute in a respect relevant to the performance of official functions.

7. By protecting the Commission and its members from erosion of public confidence and from erosion of acceptance of its authority, par.(d)(ii) reveals a sufficiently substantial connection with conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State to find support in s.51(xxxv) of the Constitution ((50) See Fairfax v. Federal Commissioner of Taxation (1965) 114 CLR 1, at p 7; Melbourne Corporation v. The Commonwealth (1947) 74 CLR 31, at p 79). Where a head of legislative power in s.51 of the Constitution supports a law creating an institution in which a Commonwealth power is reposed and the fulfilment of the purpose for which the power is reposed is facilitated by protecting the repute of the institution, a law protecting that repute from attack is a law with respect to the subject of the head of power ((51) There may be some analogy, albeit imperfect, in the protective provisions considered in Australian Coastal Shipping Commission v. O'Reilly (1962) 107 CLR 46, at p 55, and in Actors and Announcers Equity Association v. Fontana Films Pty.Ltd. (1982) 150 CLR 169, at p 183). But that is not conclusive of the law's validity, for s.51 is expressed to be "subject to this Constitution".

8. In Bourke v. State Bank of New South Wales ((52) (1990) 170 CLR 276, at pp 284-285), this Court held that the powers of the Parliament conferred by s.51 are -
"subject to such express limitations upon Commonwealth
legislative power as the Constitution contains, as well as to certain implied restrictions which have been recognized by this Court: see, e.g., Melbourne Corporation; Queensland Electricity Commission v. The Commonwealth ((53) (1985) 159 CLR 192); State Chamber of Commerce and Industry v. The Commonwealth ('the Second Fringe Benefits Tax Case') ((54) (1987) 163 CLR 329). ... In this context, some qualification must be made to the general principle that a law with respect to a subject-matter within Commonwealth power does not cease to be valid because it affects a subject outside power or can be characterized as a law with respect to a subject-matter outside power: Actors and Announcers Equity Association v. Fontana Films Pty. Ltd. ((55) (1982) 150 CLR , at pp 192, 221-222); The Commonwealth v. Tasmania (the Tasmanian Dam Case) ((56) (1983) 158 CLR 1, at pp 150-152, 179-180, 200, 215,270). The principle cannot apply when the second subject-matter with respect to which the law can be characterized is not only outside power but is the subject of a positive prohibition or restriction."

9. Is there a positive prohibition or restriction implied in the Constitution which invalidates a law which suppresses all writing or speech calculated to bring the Commission or a member of the Commission into disrepute in respect of the performance of official functions? That question calls for an examination of the approach to be adopted in drawing an implication from the Constitution and the nature of any implication to be drawn in this case.
Constitutional implications

10. The majority judgment in the Engineers' Case ((57) Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd.(1920) 28 CLR 129, at p 149) cited with approval a passage from the judgment of Lord Selborne in Reg. v. Burah ((58) (1878) 3 App Cas 889, at pp 904-905):
"The established Courts of Justice, when a question arises
whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it), it is not for any Court of Justice to inquire further, or to enlarge constructively those conditions and restrictions." Although Reg. v. Burah had been advanced by counsel as authority for a submission that an "express grant (of power) is only to be cut down by express limitations" ((59) (1920) 28 CLR , at p 133), the majority judgment appears to recognize that Lord Selborne's proposition was stated too absolutely in so far as it rejected the possibility of limitations on the grant of power arising by necessary implication. In the Engineers' Case the only provision relied on as containing an implied limitation on the power conferred by s.51(xxxv) was s.107 and the Court held that it was "a fundamental and fatal error to read s.107 as reserving any power from the Commonwealth that falls fairly within the explicit terms of an express grant in s.51, as that grant is reasonably construed, unless that reservation is as explicitly stated" ((60) ibid., at p 154). The broader, and perhaps more accurately stated, principle upon which the majority judgment turned appears in these terms ((61) ibid., at p 155):

"The doctrine of 'implied prohibition' finds no place where the ordinary principles of construction are applied so as to discover in the actual terms of the instrument their expressed or necessarily implied meaning." (Emphasis added.) Despite this passage, the Engineers' Case was seen by some as

excluding the drawing of implications from the Constitution. Dixon J. dispelled that notion in his judgment in West v. Commissioner of Taxation (N.S.W.) ((62) (1937) 56 CLR 657, at pp 681-682; Essendon Corporation v.Criterion Theatres Ltd. (1947) 74 CLR 1, at pp 22, 23):

"Since the Engineers' Case a notion seems to have gained currency that in interpreting the Constitution no implications can be made. Such a method of construction would defeat the intention of any instrument, but of all instruments a written constitution seems the last to which it could be applied. I do not think that the judgment of the majority of the court in the Engineers' Case meant to propound such a doctrine."

In Melbourne Corporation Dixon J. held that a law, though having "an actual and immediate operation within a field assigned to the Commonwealth as a subject of legislative power" ((63) (1947) 74 CLR , at p 79), might be invalid because it singles out the governments of the States and places special burdens upon the exercise of their powers or the fulfilment of functions constitutionally belonging to them ((64) ibid., especially at pp 81-83). That limitation on legislative power is not expressed in the Constitution but is "a consequence of the conception upon which the Constitution is framed" ((65) ibid., at p 82; see also per Starke J. at pp 70-74). The decision in Melbourne Corporation is an example of a limitation upon the scope of an express legislative power arising by implication from the Constitution as a whole. In Australian National Airways Pty. Ltd. v. The Commonwealth ((66) (1945) 71 CLR 29, at p 85) Dixon J. said:

"We should avoid pedantic and narrow constructions in dealing with an instrument of government and I do not see why we should be fearful about making implications."

In Victoria v. The Commonwealth ((67) The Payroll Tax Case (1971) 122 CLR 353, at pp 401-402) Windeyer J. cited this observation and added:

"The only emendation that I would venture is that I would prefer not to say 'making implications', because our avowed task is simply the revealing or uncovering of implications that are already there."

11. Once it is understood that the interpretation of the Constitution involves the revealing of implications that are already in its text, it is futile to search for limitations derived aliunde. That was the interpretative fallacy exposed by the Engineers' Case where the implications rejected by the Court were those which were "not the result of interpreting any specific language to be quoted, nor referable to any recognized principle of the common law of the Constitution" ((68) (1920) 28 CLR , at p 145). The notion that some powers are reserved to the States and the theory that there is a static balance between the powers of the Commonwealth and the powers of the States find no textual foothold in the Constitution.

12. Nor is it permissible to read down an express grant of legislative power in order to prevent the possibility of its abuse. The position under our Constitution was thus stated by the majority in the Engineers' Case ((69) ibid., at pp 151-152):
"If it be conceivable that the representatives of the people
of Australia as a whole would ever proceed to use their national powers to injure the people of Australia considered sectionally, it is certainly within the power of the people themselves to resent and reverse what may be done. No protection of this Court in such a case is necessary or proper. Therefore, the doctrine of political necessity, as means of interpretation, is indefensible on any ground. The one clear line of judicial inquiry as to the meaning of the Constitution must be to read it naturally in the light of the circumstances in which it was made, with knowledge of the combined fabric of the common law, and the statute law which preceded it, and then lucet ipsa per se." A court will interpret laws of the Parliament in the light of a presumption that the Parliament does not intend to abrogate human rights and fundamental freedoms ((70) Re Bolton; Ex parte Beane (1987) 162 CLR 514, at p 523; Potter v. Minahan (1908) 7 CLR 277, at p 304. See also per Browne-Wilkinson LJ. in Wheeler v. Leicester City Council (1985) AC 1054, at p 1065) but the court cannot deny the validity of an exercise of a legislative power expressly granted merely on the ground that the law abrogates human rights and fundamental freedoms or trenches upon political rights which, in the court's opinion, should be preserved. A function of that kind may be conferred on a court exercising a jurisdiction to review judicially laws enacted under a Constitution containing a Bill of Rights, but our Constitution does not contain a Bill of Rights. Indeed, the 1898 Constitutional Convention rejected a proposal to include an express guarantee of individual rights based substantially on the 14th Amendment to the Constitution of the United States and including a right to due process of law and the equal protection of laws ((71) See the Official Record of the Debates of the Australasian Federal Convention, (Melbourne, 8 February 1898), pp 664-691, particularly p 673). As Sir Owen Dixon observed ((72) "Two Constitutions Compared", reprinted in Jesting Pilate (1965), p 102; see also W. Harrison Moore, The Constitution of the Commonwealth of Australia, (1902), pp 328-329):

"The framers of the Australian Constitution were not prepared to place fetters upon legislative action, except and in so far as it might be necessary for the purpose of distributing between the States and the central government the full content of legislative power. The history of their country had not taught them the need of provisions directed to the control of the legislature itself."

13. The courts cannot assume a jurisdiction which the Constitution does not confer. A court cannot hold a law invalid merely on the ground that the law is not for the peace, order and good government of the Commonwealth as the court sees it. The only foundation for judicial review of legislation is the subjection of both the Parliament and the courts to the supreme law of the Constitution ((73) See Federal Commissioner of Taxation v. Munro (1926) 38 CLR 153, at p 180; Australian Communist Party v. The Commonwealth (1951) 83 CLR 1, at pp 262-263) and the Constitution reposes the function of determining whether a proposed law is for the peace, order and good government of the Commonwealth in the Parliament exclusively. The courts are concerned with the extent of legislative power but not with the wisdom or expedience of its exercise. If the courts asserted a jurisdiction to review the manner of a legislative power, there would be no logical limit to the grounds on which legislation might be brought down ((74) As Kirby P pointed out in BLF v. Minister for Industrial Relations (1986) 7 NSWLR 372, at p 405. See also Zines, Constitutional Change in the Commonwealth, (1991), pp 46-52).

14. However, it is entirely consistent with the Engineers' Case ((75) See also The Tasmanian Dam Case (1983) 158 CLR , at pp 129, 254) to hold that limitations on the powers expressly granted by s.51 of the Constitution may be implied in and from the text of the Constitution. I would repeat what I said in Queensland Electricity Commission v. The Commonwealth ((76) (1985) 159 CLR , at p 231):
"The Constitution summoned the Federation into existence
and maintains it in being. Any implication affecting the specific powers granted by the Constitution must be drawn from the Constitution itself. It is impermissible to construe the terms of the Constitution by importing an implication from extrinsic sources when there is no federation save that created by the express terms of the Constitution itself."

15. In considering whether a particular limitation on a grant of power is implied in the Constitution, the text of the Constitution must be read in the light of the general law, as the majority judgment in the Engineers' Case declared. To adopt the words of Sir Owen Dixon, "constitutional questions should be considered and resolved in the context of the whole law, of which the common law, including in that expression the doctrines of equity, forms not the least essential part" ((77) "The Common Law as an Ultimate Constitutional Foundation" (1957) 31 Australian Law Journal 240, at p 245; reprinted in Jesting Pilate (1965) 203, at pp 212-213). Reading the Constitution in the context of the whole law, is there any relevant implication of a prohibition or restriction on the power to enact s.299(1)(d)(ii)?
The relevant implication and its source

16. The Commission is established and its existence is maintained by Div.1 of the Act. The objects of the Act, set out in s.3, reveal the political and economic purposes which the Parliament intends the provisions of the Act in general and its central institution (the Commission) in particular to fulfil. Those objects include -
"...
(b) to provide a framework for the prevention and settlement of industrial disputes by conciliation and arbitration in a manner that minimises the disruptive effects of industrial disputes on the community; and (c) to ensure that, in the prevention and settlement of industrial disputes, proper regard is had to the interests of the parties immediately concerned and to the interests (including the economic interests) of the Australian community as a whole; and ... (e) to provide for the observance and enforcement of agreements and awards made for the prevention or settlement of industrial disputes; and ... (g) to encourage the democratic control of organisations, and the participation by their members in the affairs of organisations; and ..." The Commission is an important institution of government. Its awards and other decisions set the terms and conditions of employment of a large part of the workforce and influence the terms and conditions of employment of a further part. Its awards and decisions affect the general economy of the nation. In exercising its powers, the Commission is required to take into account "the state of the national economy and the likely effects on the national economy of any award or order that the Commission is considering, or is proposing to make, with special reference to likely effects on the level of employment and on inflation" ((78) s.90(b)). Its control over aspects of the constitution and activities of registered organizations regulate to an extent the functioning of these centres of industrial power. Whether the Commission's powers be classified as legislative ((79) Colvin v. Bradley Brothers Pty. Ltd. (1943) 68 CLR 151, at pp 160, 161; Ansett Transport Industries (Operations) Pty. Ltd. v. Wardley (1980) 142 CLR 237, at p 277; Collins v. Charles Marshall Pty. Ltd. (1955) 92 CLR 529, at pp 548-549) or as executive ((80) But none as judicial: see Reg. v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254), the most important of those powers are exercised "according to equity, good conscience and the substantial merits of the case" ((81) s.110(2)(c)), a formula which leaves the Commission free to decide according to its own views of what is reasonable, desirable or industrially expedient ((82) Reg. v. Spicer; Ex parte Waterside Workers' Federation of Australia (1957) 100 CLR 312, at p 317; Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. (1970) 123 CLR 361, at pp 376-377). The Commission's powers are political in the sense that the Commission exercises large powers over the relationship of labour and capital, the economy and industrial organizations according to its view of the national economy, the national interest and what is reasonable, desirable or industrially expedient. The decisions of the Commission, especially its economic decisions, both affect and are affected by the policies of government. The performance by the Commission of its functions is a matter in which the Parliament, whose legislation maintains the Commission in its prescribed form and with its prescribed powers, has a continuing interest. To prohibit all speech and writing which would be likely to bring the Commission or a member into disrepute, even though the speech or writing reveals true facts to the public benefit or contains fair and reasonable criticism, would be to stifle discussion of matters significant to political and economic life in Australia. A consequence of such a law, pointed out by Gray J. in Howard v. Gallagher ((83) (1988) 79 ALR, at p 131), is that it "would constitute an effective bar to the unearthing of vices in the system of conciliation and arbitration". But does the Constitution imply a limitation of the power conferred by s.51(xxxv) which leaves such speech and writing immune from legislative suppression?

17. The Constitution brought into existence repositories of legislative, executive and judicial power (ss.1, 61 and 71 of the Constitution); it also created a federal system of government in which the Houses of the Parliament are chosen by the people: ss.7 and 24. Stephen J. said in Attorney-General (Cth); Ex rel. McKinlay v. The Commonwealth ((84) (1975) 135 CLR 1, at p 56.):
"Three great principles, representative democracy (by which
I mean that the legislators are chosen by the people), direct popular election, and the national character of the lower House, may each be discerned in the opening words of s. 24 (of the Constitution)." Moreover, a Minister of State cannot hold office for more than three months unless he or she is a member of one of the Houses of the Parliament: s.64. The Constitution, either expressly or in conjunction with the common law of the Constitution, prescribes a further principle of responsible government ((85) The Engineers' Case (1920) 28 CLR , at p 147; The Commonwealth v. Kreglinger and Fernau Ltd. and Bardsley (1926) 37 CLR 393, at p 413; The Commonwealth v. Colonial Combing, Spinning and Weaving Co. Ltd. (1922) 31 CLR 421, at p 446). The principles referred to by Stephen J. and the principle of responsible government are constitutional imperatives which are intended - albeit the intention is imperfectly effected - to make both the legislative and executive branches of the government of the Commonwealth ultimately answerable to the Australian people ((86) See Sir Samuel Griffith's "Notes on Australian Federation", (Brisbane Government Printer 1896), pp 17-18, cited by Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901), pp 703-704). Under the Westminster model, these principles might be trespassed upon by legislation emanating from an omnicompetent Parliament but the Parliament of the Commonwealth is incompetent to alter the principles prescribed by the Constitution to which it owes its existence. It is a Constitution the text of which the people alone can change: s.128.

18. To sustain a representative democracy embodying the principles prescribed by the Constitution, freedom of public discussion of political and economic matters is essential ((87) As the European Court of Human Rights recognized in The Observer and the Guardian v. United Kingdom (1991) 14 EHRR 153 at p 178): it would be a parody of democracy to confer on the people a power to choose their Parliament but to deny the freedom of public discussion from which the people derive their political judgments. I respectfully agree with Lord Simon of Glaisdale when he said in Attorney-General v. Times Newspapers ((88) (1974) AC 273, at p 315; see also per Mason J. in The Commonwealth of Australia v. John Fairfax and Sons Ltd. (1980) 147 CLR 39, at p 52; Hector v. Attorney-General of Antigua (1990) 2 AC 312, at p 318):
"The first public interest involvedis that of freedon of
discussion in democratic society. People cannot adequately influence the decisions which affect their lives unless they can be adequately informed on facts and arguments relevant to the decisions. Much of such fact-finding and argumentation necessarily has to be conducted vicariously, the public press being a principal instrument." Freedom of public discussion of government (including the institutions and agencies of government) is not merely a desirable political privilege; it is inherent in the idea of a representative democracy. As McIntyre J. observed in Retail, Wholesale and Department Store Union v. Dolphin Delivery Ltd. ((89) (1986) 33 DLR (4th) 174, at p 183):

"Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection."

19. However, at common law there is no right to free discussion of government ((90) Attorney-General v. Guardian Newspapers (No.2) (1990) 1 AC 109 at p 283). Freedoms or immunities recognized by the common law are, generally speaking, liable to impairment or abrogation by legislation. Hence, to quote A.V. Dicey ((91) An Introduction to the Study of the Law of the Constitution, 10th ed. (1959), p 239), it is "essentially false" to say that "the right to the free expression of opinion, and especially that form of it which is known as the 'liberty of the press', are fundamental doctrines of the law of England ... and ... that our courts recognize the right of every man to say and write what he pleases, especially on social, political, or religious topics without fear of legal penalties". But the fragility of the common law "right" to the free expression of opinion is in part due to the absence of a constitutional entrenchment of the form of government which the public discussion of political and economic matters is required to sustain. In legal theory, it may be possible ((92) See per Browne-Wilkinson LJ. in Wheeler v. Leicester City Council (1985) AC, at p 1065) - it is not for this Court to say - for the Parliament at Westminster to abolish freedom of speech in the United Kingdom and thereby destroy the representative democracy which has been so entrenched in practice. But where a representative democracy is constitutionally entrenched, it carries with it those legal incidents which are essential to the effective maintenance of that form of government. Once it is recognized that a representative democracy is constitutionally prescribed, the freedom of discussion which is essential to sustain it is as firmly entrenched in the Constitution as the system of government which the Constitution expressly ordains ((93) See per Abbott J. in Switzman v. Elbling and AG. of Quebec (1957) SCR 285, at pp 326-327; (1957) 7 DLR (2d) 337, at pp 369-370, and the review of the Canadian pre-Charter cases by McIntyre J. in Retail, Wholesale and Department Store Union v. Dolphin Delivery Ltd. (1986) 33 DLR (4th), at pp 184-185). Thus, when the validity of a Provincial Bill was challenged before the Supreme Court of Canada on the ground that it purported to authorize an excessive suppression of public political and economic discussion, Duff C.J. (with the concurrence of Davis J.) ((94) Reference re Alberta Statutes (1938) SCR 100, at pp 132-133; (1938) 2 DLR 81, at p 107, followed in Saumur v. City of Quebec (1953) 2 SCR 299; (1953) 4 DLR 641, and by Abbott J. in Switzman v. Elbling and AG. of Quebec (1957) SCR, at pp 326-327; (1957) 7 DLR (2d), at pp 369-370) said in reference to the system of government prescribed by The British North America Act 1867 (Imp) ((95) 30 and 31 Vict. c.3.): "Without entering in detail upon an examination of the
enactments of the Act relating to the House of Commons, it can be said that these provisions manifestly contemplate a House of Commons which is to be, as the name itself implies, a representative body; constituted, that is to say, by members elected by such of the population of the united provinces as may be qualified to vote. The preamble of the statute, moreover, shows plainly enough that the constitution of the Dominion is to be similar in principle to that of the United Kingdom. The Statute contemplates a parliament working under the influence of public opinion and public discussion. There can be no controversy that such institutions derive their efficacy from the free public discussion of affairs, from criticism and answer and counter-criticism, from attack upon policy and administration and defence and counter-attack; from the freest and fullest analysis and examination from every point of view of political proposals. This is signally true in respect of the discharge by Ministers of the Crown of their responsibility to Parliament, by members of Parliament of their duty to the electors, and by the electors themselves of their responsibilities in the election of their representatives. The right of public discussion is, of course, subject to legal restrictions; those based upon considerations of decency and public order, and others conceived for the protection of various private and public interests with which, for example, the laws of defamation and sedition are concerned. In a word, freedom of discussion means, to quote the words of Lord Wright in James v. Commonwealth ((96) (1936) AC 578, at p 627), 'freedom governed by law.' Even within its legal limits, it is liable to abuse and grave abuse, and such abuse is constantly exemplified before our eyes; but it is axiomatic that the practice of this right of free public discussion of public affairs, notwithstanding its incidental mischiefs, is the breath of life for parliamentary institutions." (Emphasis added.) In the same case, Cannon J. said ((97) (1938) SCR, at pp 145-146; (1938) 2 DLR, at p 119):

"Under the British system, which is ours, no political party can erect a prohibitory barrier to prevent the electors from getting information concerning the policy of the government. Freedom of discussion is essential to enlighten public opinion in a democratic State; it cannot be curtailed without affecting the right of the people to be informed through sources independent of the government concerning matters of public interest. There must be an untrammelled publication of the news and political opinions of the political parties contending for ascendancy. As stated in the preamble of The British North America Act, our constitution is and will remain, unless radically changed, 'similar in principle to that of the United Kingdom.' At the time of Confederation, the United Kingdom was a democracy. Democracy cannot be maintained without its foundation: free public opinion and free discussion throughout the nation of all matters affecting the State within the limits set by the criminal code and the common law."

20. By parity of reasoning, the representative democracy ordained by our Constitution carries with it a comparable freedom for the Australian people and that freedom circumscribes the legislative powers conferred on the Parliament by the Constitution. No law of the Commonwealth can restrict the freedom of the Australian people to discuss governments and political matters unless the law is enacted to fulfil a legitimate purpose and the restriction is appropriate and adapted to the fulfilment of that purpose ((98) cf. Zines, op cit, p 43).

21. That being so, are "the limits set by the criminal code and the common law" applicable under our Constitution? To say that freedom to discuss governments and political matters is essential to the existence of a representative democracy is not to define with any precision the limitation on legislative power implied in the Constitution. A freedom of the kind postulated leaves open to debate the extent to which that freedom can be trenched upon in order to protect other interests which are protected in a legal system modelled on Westminster, for example, the interests of justice, personal reputation or the community's sense of decency. The balancing of the protection of other interests against the freedom to discuss governments and political matters is, under our Constitution, a matter for the Parliament to determine and for the Courts to supervise. I would state the governing implication in these terms: the Constitution prohibits any legislative or executive infringement of the freedom to discuss governments and governmental institutions and political matters except to the extent necessary to protect other legitimate interests and, in any event, not to an extent which substantially impairs the capacity of, or opportunity for, the Australian people to form the political judgments required for the exercise of their constitutional functions. Although s.51(xxxv) empowers the Parliament to enact a law protecting the Commission's capacity to perform its functions, that power does not extend so far as to authorize a law prohibiting justifiable and fair and reasonable criticism of the Commission as an important instrument of government. As Dixon J. said in Australian Communist Party v. The Commonwealth ((99) (1951) 83 CLR , at pp 187-188):
"In point of constitutional theory the power to legislate
for the protection of an existing form of government ought not to be based on a conception, if otherwise adequate, adequate only to assist those holding power to resist or suppress obstruction or opposition or attempts to displace them or the form of government they defend."

22. The implied limitation on legislative power to protect an institution of government or some other legitimate interest is a matter of degree((100) As Walsh J. said in the Payroll Tax Case (1971) 122 CLR , at p 410, the phrase "'undue interference' provides no satisfactory means for determining what is 'undue'") and its effect depends on the particular circumstances. In considering the extent to which the freedom of discussion can be curtailed in protection of another interest, the material factors include the practicability of protection by a less severe curtailment of the freedom and the extent to which the protection of the other interest itself enhances the ability of the Australian people to enjoy their democratic rights and privileges. The circumstances which may affect the extent to which the freedom can be curtailed include the exigencies of defence or national security and the contemporary risk to other interests which are in need of protection. A recognition of the distinction between a legitimate curtailing of the freedom of discussion in order to protect the interests of a free and stable society and an impermissible curtailing of the freedom that substantially impairs the capacity of the Australian people to exercise their constitutional functions appears in the judgment of Latham C.J. in Burns v. Ransley((101) (1949) 79 CLR , at p 110. See also per Rich J. at p 111):
"The prevention and punishment of intentional excitement
of disaffection against the Sovereign and the Government is a form of protective law for this purpose which is to be found as a normal element in most, if not all, organized societies. I agree that the Commonwealth Parliament has no power to pass a law to suppress or punish political criticism, but excitement to disaffection against a Government goes beyond political criticism."

23. The role of the court in judicially reviewing a law that is said to curtail the freedom unduly and thereby to exceed legislative power is essentially supervisory. It declares whether a balance struck by the Parliament is within or without the range of legitimate legislative choice. In a society vigilant of its democratic rights and privileges, it might be expected that the occasions when the Parliament deliberately steps outside the range of legitimate choice would be few. In the present case where, in my opinion, s.299(1)(d)(ii) does step outside the range of legitimate choice, it is tempting to speculate that the excessive curtailing of the freedom to discuss an institution of government is the consequence of a drafting error rather than the result of deliberate legislative choice.

24. The limitation on legislative power implied in the Constitution does not bring into question the validity of those laws which Cannon J. described as "the criminal code and the common law"((102) (1938) SCR, at p 146; (1938) 2 DLR, at p 119). Those laws strike an appropriate balance between the postulated freedom of discussion and the private or public interest which is protected by the curtailing of the freedom (e.g., the plaintiff's reputation under the law of defamation or the preservation of the institutions of government under the law of sedition). Of course, in Australia "the criminal code and the common law" are, for the most part, subject to the legislative power of the States whereas the implication with which we are here concerned is a limitation on the legislative power of the Commonwealth. True it is that the limitation, being implied in the Constitution, may be capable of affecting the laws of a State, at least if those laws purport to impair the exercise by the people of their democratic rights and privileges in federal matters. However, it is unnecessary now to consider that question or to consider the effect of the implied limitation on ss.106 and 107 of the Constitution.

25. Finding in the Constitution an implication which limits legislative power to the extent stated, I would hold that s.299(1)(d)(ii) exceeds the legislative power of the Commonwealth. The preservation of public confidence in the Commission and acceptance of the authority of the Commission and its members in the exercise of their respective powers is an interest which the Parliament is empowered to protect, and the Parliament clearly has power to enact a law protecting the repute of the Commission and its members against unwarranted attack. But s.299(1)(d)(ii) goes much further than is needed to achieve a proper protection of repute. By prohibiting justifiable revelations of any corruption or other vice affecting the workings of the Commission and by prohibiting criticisms made fairly and reasonably, par.(d)(ii) purports impermissibly to prevent public discussion about an important agency of social regulation. It purports to stifle that free discussion which is essential to expose defects in, and to maintain the integrity of, any institution vested with power to affect the lives of the people living in a representative democracy. Had the Act prohibited speech and writing that is calculated to bring the Commission or its members into disrepute only when the speech or writing fails to state the critical facts truly or when the criticism is unreasonable or unfair, the provision would have been clearly valid, even though the freedom of discussion was curtailed to some extent. The balance between curtailment of the freedom and the protection of the Commission and its members against unwarranted attacks would have been appropriately struck. But s.299(1)(d)(ii) does not attempt to strike a balance. Unless it be possible, by operation of s.15A of the Acts Interpretation Act 1901 (Cth), to sever the invalid application of s.299(1)(d)(ii) from the area in which such a provision could legitimately operate, s.299(1)(d)(ii) must be held invalid in its present form. Before turning to the question of severance, however, it is desirable to examine the alternative basis on which the validity of that provision was challenged, namely, that s.92 of the Constitution guarantees a freedom to communicate ideas and that that freedom is infringed by application of s.299(1)(d)(ii) to the publication of the article mentioned in the information. If s.92 contains such a guarantee within the concept of "intercourse among the States", the Constitution could not be construed to imply a broader guarantee of the same kind. The implication could not override any limits imposed by s.92.
Freedom of intercourse: s.92

26. The article was disseminated either in printed form or by a form of facsimile transmission which permitted the article to appear in newspapers printed in the place where the facsimile was received. The geographical source of the article disseminated in these ways was Sydney and the dissemination was throughout New South Wales and to the other States and Territories of the Commonwealth. These facts, stated in more detail in paragraphs 1 to 12 of the case stated by the Chief Justice, were said to attract the operation of s.92 of the Constitution. Then, so the argument goes, s.299(1)(d)(ii) of the Act impaired the freedom of interstate intercourse required by s.92. To avoid the test propounded in Cole v. Whitfield for determining the validity of a law affecting interstate trade and commerce, the defendant relied on some passages from the judgment in that case to distinguish the present case from cases where the freedom of trade and commerce is impaired:
"The notions of absolutely free trade and commerce and
absolutely free intercourse are quite distinct and neither the history of the clause nor the ordinary meaning of its words require that the content of the guarantee of freedom of trade and commerce be seen as governing or governed by the content of the guarantee of freedom of intercourse."((103) (1988) 165 CLR 360, at p 388) And again:

"(I)t is clear that some forms of intercourse are so immune from legislative or executive interference that, if a like immunity were accorded to trade and commerce, anarchy would result. ... Once this is accepted, as it must be, there is no reason in logic or commonsense for insisting on a strict correspondence between the freedom guaranteed to interstate trade and commerce and that guaranteed to interstate intercourse."((104) ibid., at pp 393-394)

Submitting that the communication of any form of information or any expression of ideas across a State border is a species of "intercourse among the States", the defendant contended that s.92 precluded any restrictions on the content of the communication "save those which are necessary for the reasonable regulation and adjustment of the competing interests of people in the community at large".

27. Section 92 has been said((105) by Isaacs J. in R. v. Smithers; Ex parte Benson (1912) 16 CLR 99, at p 117) to be "an absolute prohibition on the Commonwealth and States alike to regard State borders as in themselves possible barriers to intercourse between Australians". The proposition that s.92 is an "absolute prohibition" is itself stated too absolutely, but the notion that intercourse among Australians in different States can be carried on without regard to State borders is substantially correct.

28. Although the conception of "intercourse" is distinct from the conception of "trade" or of "commerce", instances of intercourse may be, and frequently are, instances of trade and commerce. The composite phrase "trade, commerce and intercourse among the States", as Dixon J. said in Bank of N.S.W. v. The Commonwealth((106) (1948) 76 CLR 1, at p 380), attracts the guarantee of freedom from restriction "to a broad category of interchange, converse and dealings between States in the affairs of life". His Honour expanded on the generality of the phrase((107) ibid., at pp 381-382):

7. The purpose of s.299(1)(d)(ii) of the Act is one that is apparent without resort to questions of the kind to which I have referred. Its purpose is revealed by its terms and its context: it is to protect the standing and authority of the tribunal established to conciliate and arbitrate interstate industrial disputes and its proceedings. That purpose is one that connects the provision with the main purpose of the power conferred by s.51(xxxv) of the Constitution, namely, conciliation and arbitration for the prevention and settlement of interstate industrial disputes, in a way that enables it to be said that it is incidental to that power.

8. The second question that arises is whether s.299(1)(d)(ii) infringes a constitutional prohibition with respect to the communication of information and ideas, being either a prohibition implicit in the Constitution or that contained in s.92. A related but somewhat broader issue is involved in Australian Capital Television Pty. Limited and Ors v. The Commonwealth of Australia (No.2), a case in which reasons for judgment are to be delivered immediately following the reasons in this case. In that case I state my reasons for concluding that the powers conferred by s.51 of the Constitution, because they are conferred "subject to (the) Constitution", do not authorize laws which are inconsistent with a Commonwealth which is a free society governed in accordance with the principles of representative parliamentary democracy and, thus, do not authorize laws which impair or curtail freedom of political discourse, albeit that that freedom is not absolute. Because that freedom is not absolute and for the reasons which I state in Australian Capital Television Pty. Limited and Ors v. The Commonwealth (No.2), freedom to discuss matters pertaining to government institutions and agencies may be curtailed by a law under s.51, but only if its purpose is not to impair freedom, but to secure some end within power in a manner which, having regard to the general law as it has developed in relation to the written and spoken word, is reasonably and appropriately adapted to that end.

9. The protection of the standing and authority of the Commission and its proceedings is an end authorized by s.51(xxxv) and, accordingly, the question which falls for determination in this case is whether, having regard to the general law pertaining to the spoken and written word, s.299(1)(d)(ii) of the Act is reasonably and appropriately adapted to that end. As it happens, that question is, for all practical purpose, the same question asked by McHugh J. to determine whether s.299(1)(d)(ii) is a law with respect to a matter incidental to the subject-matter of s.51(xxxv). And, the question posed by Mason C.J. with respect to proportionality (also in relation to s.51(xxxv)) is to the same effect.

10. Although I would ask the question for a different purpose, I agree with Mason C.J. and with McHugh J., for the reasons that each gives, that the question whether s.299(1)(d)(ii) is appropriate and adapted to the protection of the Commission or its proceedings must be answered against the Commonwealth. And I agree with their Honours, again for the reasons that each gives, that s.299(1)(d)(ii) cannot be severed or read down so as to have a valid operation in that area in which the Parliament has power to proscribe conduct calculated to bring the Commission or its members into disrepute.

11. The questions in the case stated by the Chief Justice should be answered as follows:
1.(a) Yes.
(b) Unnecessary to answer. (c) Unnecessary to answer. 2.(a) No. (b) Unnecessary to answer. (c) Unnecessary to answer. It follows that the question in the stated case removed into this Court from the Federal Court pursuant to s.40 of the Judiciary Act should be answered "No".

McHUGH J. In the Federal Court of Australia, Nationwide News Pty. Ltd. ("Nationwide News"), the publisher of The Australian newspaper, is defending a charge that it published words calculated to bring the Industrial Relations Commission into disrepute. Part of the proceedings have been removed into this Court to determine the constitutional validity of s.299(1)(d)(ii) of the Industrial Relations Act 1988 (Cth), which is the source of the charge against Nationwide News. After the cause was removed, the Chief Justice stated a case for the determination of the Court pursuant to the provisions of s.18 of the Judiciary Act 1903 (Cth). The questions for determination are: 1. In all the circumstances, but not including the prosecutor's
intention to rely upon the printing, publication and distribution for sale of the relevant article in Sydney: (a) Is s.299(1)(d)(ii) of the Industrial Relations Act invalid?
(b) Does s.92 of the Constitution prevent the application of s.299(1)(d)(ii) of the Industrial Relations Act to the printing,

publication and distribution for sale of the relevant article?

(c) Does any guarantee implied by the Constitution prevent the application of s.299(1)(d)(ii) of the Industrial Relations Act to th printing, publication and distribution for sale of the relevant article?

2. In all the circumstances: (a) Is s.299(1)(d)(ii) of the Industrial Relations Act valid in its application to the printing, publishing and distribution for sal of the relevant article at Sydney?

(b) Does s.92 of the Constitution prevent the application of s.299(1)(d)(ii) of the Industrial Relations Act to the printing and publication of the relevant article at Sydney?

(c) Does any guarantee implied by the Constitution prevent the application of s.299(1)(d)(ii) of the Industrial Relations Act to th printing and publication of the relevant article at Sydney?

2. The material parts of the article which is the subject of the charge are as follows: "May I briefly outline some of the aspects of fascism in Australia?
... The right to work has been taken away from ordinary Australian workers. Their work is regulated by a mass of official controls, imposed by a vast bureaucracy in the ministry of labour and enforced by a corrupt and compliant 'judiciary' in the official Soviet-style Arbitration Commission. Local trade union soviets, with the benefit of monopoly powers conferred on them by the State and enforced by the corrupt labour 'judges' in many industries regulate the employment of each individual, who may not work unless he first obtains the union card from the local union soviet. Through the resulting complex and corrupt system of wages and work regulation, ordinary Australian workers have in recent years been subject to a persistent and now accelerating process of declining real wages. The Reserve Bank Bulletin for October 1989 reveals that between 1984-85 and the June quarter of 1989 award wages for adults in Australia rose 23 per cent. Over the same period, average earnings rose 33 per cent, as the workers attempted to flesh out their award wages by overtime and other privately negotiated 'deals' beyond the control of the labour ministry soviet and the corrupt labour 'judges'. ... So, in Australia, as in Eastern Europe or in the Soviet Union itself, the ministry of labour controls on workers' right to work, enforced by pliant 'judges', have produced declining real wages." (emphasis added)

3. The edition of The Australian bearing the relevant article was distributed to all States of Australia, the Australian Capital Territory and the Northern Territory. A total of 160,725 newspapers were distributed, 127,602 of them being sold on 14 November 1989. On that date several thousand copies were physically transported across State and Territory borders.

4. In support of the charge against Nationwide News, the prosecutor intends to rely on the printing, publication and distribution for sale of the relevant edition of The Australian in Sydney and not upon its transmission to, printing, publication, or distribution for sale in other places.

5. Section 299 provides:
"(1) A person shall not:

... (d) by writing or speech use words calculated: ... (ii) to bring a member of the Commission or the Commission into disrepute."

6. The effect of s.299(1)(d)(ii) is to make it an offence to publish material which is "calculated to lessen or discredit the authority or prestige of the (Commission or any of its members) in the minds of reasonable people"((227) Bell v. Stewart (1920) 28 CLR 419, at p 425). A publication will lessen or discredit their authority if it makes imputations about the conduct, character or work of the Commission or its members and those imputations, "if true, would forfeit the respect of the community"((228) ibid., at p 426).

7. The informant contended that s.299(1)(d)(ii) had to be read against the background of the principles of criminal responsibility and the general common law defences which apply to Commonwealth prosecutions by reason of ss.79 and 80 of the Judiciary Act. Consequently, the informant contended that "defences" such as duress, honest and reasonable mistake and necessity could be raised as defences to a prosecution brought under s.299(1)(d)(ii). So much may be accepted. But the informant, supported by the Attorney-General for the Commonwealth, contended that the paragraph also impliedly recognised such defences as justification and fair comment. This contention cannot be accepted. The offence is proved if the publication brings the Commission or one of its members into disrepute. A publication may bring the Commission or one of its members into disrepute even though the publication consists of imputations or statements which are true or which constitute fair comment. Indeed, the greater the truth, the greater may be the disrepute. Since s.299(1)(d)(ii) contains no reference to any "defence" of fair comment or justification, the only conclusion that can be drawn is that neither of those "defences" is an answer to a charge laid under that paragraph.

8. It follows that I am unable to accept the statement made by Gray J. in Howard v. Gallagher((229) (1988) 79 ALR 111, at p 131) in respect of the predecessor of s.299(1)(d)(ii) that it could "hardly be suggested that the making of allegations of impropriety against the Commission or one of its members could constitute an offence if those allegations were true". For the same reasons, I am unable to agree with his Honour that it was a reasonable assumption that Parliament, in enacting the predecessor of s.299(1)(d)(ii), "did not intend that the Commission and its members should have greater protection from criticism than would a court and its judges"((230) ibid., at p 130). While many statements about the Commission or its members which fall within s.299(1)(d)(ii) would constitute contempt of court if made about a court or judge, it does not follow that what is calculated to bring the Commission or one of its members into disrepute is limited to what would be a contempt of court at common law or what would constitute the offence of scandalising the court. Neither the words of s.299(1)(d)(ii) nor its context gives any ground for concluding that the very general words of the paragraph should be read down by reference to the common law concepts of contempt of court or scandalising a court.

9. Counsel for the informant was on firmer ground in contending that s.299(1)(d)(ii) only applied to publications which brought a member of the Commission into disrepute in his or her capacity as a member of the Commission. Although the words of the paragraph are not expressly limited to publications concerning the conduct of a member of the Commission in that person's capacity as a member of the Commission, the paragraph must be read in that sense. In the context of a statute dealing with industrial disputes, a provision, such as s.299(1)(d)(ii), is more naturally read as concerned with publications about the members of the Commission as members of the Commission than with the general conduct of persons who are members of the Commission.

10. However, I am unable to accept the further contention of the informant that the words should also be confined to publications concerned with the exercise or performance of official powers and functions. In some cases, a publication which reflects on some aspect of a member's general conduct will also bring him or her into disrepute as a member of the Commission. In marked contrast to the other paragraphs in s.299, par.(1)(d)(ii) contains no reference to "the exercise ... or the performance" of, or "exercising ... or performing", powers or functions as a member of the Commission. That being so, the omission of similar qualifying phrases in s.299(1)(d)(ii) should be seen as a deliberate decision on the part of the Parliament to protect the members of the Commission against any attack which is calculated to bring any of them into disrepute in his or her capacity as a member of the Commission.

11. The effect of s.299(1)(d)(ii), therefore, is to make it an offence to publish matter which brings into disrepute the Commission or any of its members in his or her capacity as a member of the Commission, irrespective of whether the publication is true or false or whether the offending material constitutes a fair comment on facts truly stated. Is s.299(1)(d)(ii) authorised by s.51(xxxv) of the Constitution?

12. The Industrial Relations Commission was created pursuant to the power conferred on the Parliament by s.51(xxxv) of the Constitution((231) Jumbunna Coal Mine N.L v. Victorian Coal Miners' Association (1908) 6 CLR 309, at pp 333, 342-343; O'Toole v. Charles David Pty. Ltd. (1991) 171 CLR 232, at pp 289-290). That paragraph provides: "The Parliament shall, subject to this Constitution, have power to
make laws for the peace, order, and good government of the Commonwealth with respect to:- ... (xxxv) Conciliation and arbitration for the prevention and

settlement of industrial disputes extending beyond the limits of any one State".

Section 51(xxxv) is a plenary power((232) Reg. v. Burah (1878) 3 App Cas 889, at pp 904-905; Hodge v. The Queen (1883) 9 App Cas 117, at p 132; R. v. Barger (1908) 6 CLR 41, at pp 66, 84-85; Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920) 28 CLR 129, at pp 153-154, 162; Nelungaloo Pty. Ltd. v. The Commonwealth (1947) 75 CLR 495, at pp 503-504). Whenever any question arises as to whether a power conferred by s.51 of the Constitution should be given a wide or narrow meaning, the settled doctrine of this Court is that it should be given the wider meaning unless something in the rest of the Constitution indicates, expressly or by implication, that the narrow meaning best carries out the overall purposes of the Constitution((233) Jumbunna (1908) 6 CLR , at pp 367-368; Australian Boot Trade Employes' Federation v. Whybrow and Co. (1910) 11 CLR 311, at p 338; Engineers' Case (1920) 28 CLR 129; Bank of New South Wales v. The Commonwealth (1948) 76 CLR 1, at pp 332-334; Worthing v. Rowell and Muston Pty. Ltd. (1970) 123 CLR 89, at p 96; Koowarta v. Bjelke-Peterson (1982) 153 CLR 169, at pp 227-228; Reg. v. Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR 297, at p 314; The Commonwealth v. Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1, at pp 127-128, 220-221, 302).

13. A law purporting to be passed under one of the paragraphs of s.51 is valid if it is a law "with respect to" one of the subjects enumerated in those paragraphs. Whether or not it is such a law is to be determined "by reference to the nature of the rights, duties, powers and privileges which it changes, regulates or abolishes"((234) Fairfax v. Federal Commissioner of Taxation (1965) 114 CLR 1, at p 7; Actors and Announcers Equity Association v. Fontana Films Pty. Ltd. (1982) 150 CLR 169, at pp 201-202). Furthermore, whatever is incidental or ancillary to the subject matter of a power conferred by s.51 is a law with respect to that power if it is "necessary for the reasonable fulfilment of the legislative power"((235) Burton v. Honan (1952) 86 CLR 169, at p 177) because every grant of power conferred by s.51 extends to the making of laws in relation to matters necessary to achieve the main purpose or purposes of that power((236) Huddart Parker Ltd. v. The Commonwealth (1931) 44 CLR 492, at pp 515-516; Burton (1952) 86 CLR , at p 177; Wragg v. State of New South Wales (1953) 88 CLR 353, at p 386; Grannall v. Marrickville Margarine Pty. Ltd. (1955) 93 CLR 55, at p 77; Reg. v. Wright; Ex parte Waterside Workers' Federation of Australia (1955) 93 CLR 528, at p 544).

14. In accordance with these principles, this Court has declared that the power conferred by s.51(xxxv) to legislate with respect to conciliation and arbitration necessarily extends to the creation of tribunals to conciliate and arbitrate disputes falling within the terms of that paragraph because the creation of such tribunals is reasonably necessary to carry out the grant of power((237) Jumbunna (1908) 6 CLR , at pp 333, 342-343; O'Toole (1991) 171 CLR , at p 289). Furthermore, the application of those principles establishes that the incidental power conferred by s.51(xxxv) extends to the making of laws for the protection of such tribunals because the power to create necessarily implies the power to preserve((238) See Australian Coastal Shipping Commission v. O'Reilly (1962) 107 CLR 46, at p 59).

15. Whether a matter is incidental to effectuating the purpose of a grant of a power is frequently a matter of degree((239) Burton (1952) 86 CLR , at p 179). But once a reasonable connection between an ancillary or incidental subject-matter and the subject of a s.51 power becomes evident, the validity of a law regulating, prohibiting or promoting that ancillary or incidental subject-matter is not open to challenge((240) ibid.; Gazzo v. Comptroller of Stamps (Vict.) (1981) 149 CLR 227, at pp 244, 269). Throughout this Court's history, it has acted on the basis "that once the subject matter is fairly within the province of the Federal legislature the justice and wisdom of the provisions which it makes in the exercise of its powers over the subject matter are matters entirely for the Legislature and not for the Judiciary"((241) Burton (1952) 86 CLR , at p 179). However, a law, purporting to be passed under the incidental power for the protection of a body created by Parliament, is not fairly within the province of an express grant of power if the law "provides for a regime of protection which is grossly disproportionate to the need to protect" that body((242) Davis v. The Commonwealth (1988) 166 CLR 79, at p 100. See The Tasmanian Dam Case (1983) 158 CLR , at pp 172, 232, 259-261, 278; Richardson v. Forestry Commission (1988) 164 CLR 261, at pp 289, 295-296, 300, 311-312, 336, 345-346; Re Nolan; Ex parte Young (1991) 172 CLR 460, at pp 476-477, 484). A law will be grossly disproportionate to achieving the objects of a power conferred by the Constitution if, for example, the law constitutes an "extraordinary intrusion" into freedom of speech that "is not reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power"((243) Davis (1988) 166 CLR , at p 100).

16. Accordingly, the decisive question in this case is whether par.299(1)(d)(ii), construed as I have construed it, goes beyond what is reasonably and appropriately adapted to the protection of the Commission, its members and their functions.

17. That the Commission is in need of protection from scurrilous abuse and unwarranted attacks on its integrity, fairness and competence is not open to doubt. The Industrial Relations Commission is, and has been for many years, a central figure in the business of government in this country. It is a quasi-legislative, as well as a quasi-judicial, body which settles industrial disputes by promulgating rules which bind the disputants. Its rulings in National Wage Cases directly or indirectly affect the greater part of the Australian workforce; the effect of its decisions in those and other cases affect the whole of the Australian economy. It is not in the public interest, therefore, to permit public confidence in the Commission and its members to be undermined by unwarranted attacks on its integrity, fairness or competence. The efficacy of the actions and decisions of the Commission is largely dependent on the degree of acceptance which its decisions receive from the parties and the general community. Moreover, as counsel for the informant pointed out, the Commission is often involved in resolving or attempting to resolve heated disputes, and, as a practical matter, cannot rely entirely upon sanctions to enforce its determinations.

18. However, s.299(1)(d)(ii) goes well beyond protecting the Commission and its members against unwarranted attacks. That paragraph protects the Commission from justifiable as well as unjustifiable criticism. It gives the Commission a protection from criticism greater than that enjoyed by the established courts of law. Since the decision of the Privy Council in Ambard v. Attorney-General for Trinidad and Tobago((244) (1936) AC 322), it has not been open to doubt that at common law no wrong is committed by persons who in good faith criticise courts or judges or the administration of justice "provided that (they) abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice"((245) ibid., at p 335). Indeed, the Australian authorities go further. In R. v. Nicholls((246) (1911) 12 CLR 280, at p 286), Griffith C.J. said that he was "not prepared to accede to the proposition that an imputation of want of impartiality to a Judge is necessarily a contempt of Court". His Honour thought that, if the conduct of a judge exposed him or her to such a charge, criticism of that conduct "would be entitled to similar protection to that which comment upon matters of public interest is entitled under the law of libel"((247) ibid). His Honour's remarks have been followed in other Australian cases((248) R. v. Fletcher; Ex parte Kisch (1935) 52 CLR 248, at pp 257-258; Attorney-General (N.S.W.) v. Mundey (1972) 2 NSWLR 887, at p 910). Further, while there are decisions((249) For example, Attorney-General v. Blomfield (1913) 33 NZLR 545; Viner v. B.L.F (1982) 2 IR 177, at p 183) to the effect that truth or falsity is irrelevant to a charge of scandalising the court, this Court has said that the summary remedy of fine or imprisonment is applied only "where the attacks are unwarrantable"((250) Gallagher v. Durack (1983) 152 CLR 238, at p 243 citing Evatt J. in Fletcher (1935) 52 CLR , at p 257).

19. In my opinion, s.299(1)(d)(ii) cannot be supported as a law which is reasonably incidental to the system of conciliation and arbitration set up pursuant to the power granted by s.51(xxxv) of the Constitution. Section 299(1)(d)(ii) goes beyond that which can reasonably be regarded as necessary to enable the Commission to perform its duties. First, the paragraph constitutes a far reaching interference with the common law right of members of the public to make fair comments on matters of public interest. But for the provisions of s.299(1)(d)(ii), members of the public would have the right at common law to comment on and fairly criticise the Commission, its members and their work, whether or not the criticism brought the Commission or its members into disrepute. As Lord Denning M.R. stated in Reg. v. Metropolitan Police Commissioner; Ex parte Blackburn (No.2)((251) (1968) 2 All ER 319, at p 320): "It is the right of every man, in Parliament or out of it, in the
press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest."((252) See ibid, at pp 320-321; Schering Chemicals Ltd. v. Falkman Ltd. (1981) 2 WLR 848, at p 865)

20. In Attorney-General v. Times Newspapers((253) (1974) AC 273, at p 315), Lord Simon of Glaisdale perceived freedom of speech as a necessary pre-requisite of informed decision-making in a democratic society. He said: "The first public interest involved is that of freedom of discussion
in democratic society. People cannot adequately influence the decisions which affect their lives unless they can be adequately informed on facts and arguments relevant to the decisions. Much of such fact-finding and argumentation necessarily has to be conducted vicariously, the public press being a principal instrument."((254) See also Reference re Alberta Statutes (1938) SCR 100, at p 133; Switzman v . Elbling and Attorney-General of Quebec (1957) SCR 285, at p 306; N ew York Times Co. v. Sullivan (1964) 376 US 254, at pp 269-270, 297; Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd. (1986) 33 DLR (4th) 174, at pp 183-184)

21. Secondly, apart from s.299(1)(d)(ii), members of the public could lawfully publish truthful statements about the Commission or its members even though those statements brought the Commission or its members into disrepute. Whatever the scope of the common law offence of scandalising the court may be, it is not applicable to the Commission or its members.

22. Thirdly, the paragraph gives the Commission a protection against criticism beyond that deemed necessary for the established courts of justice to perform their functions and retain the confidence of the community.

23. Fourthly, nothing was put to this Court that suggested that public confidence in the Commission would be likely to be undermined unless the Commission was given the extraordinary protection which s.299(1)(d)(ii) purports to give to the Commission. Nor was it suggested that the Commission or its members required greater protection from unwarranted attacks than that enjoyed by the judges of the established courts. Indeed, counsel for the informant and counsel for the Attorney-General of the Commonwealth argued for the validity of the paragraph on the basis that fair comment and justification were defences to any charge brought pursuant to it. Significantly, they put no argument to the Court to justify the validity of the paragraph if it was construed to exclude those "defences", although counsel for the Attorney-General of the Commonwealth asserted at one stage of his submissions that the paragraph was valid even if it excluded those defences.

24. Because the question of whether a subject matter is incidental to a constitutional power is frequently a matter of degree, this Court will hesitate to substitute its judgment for that of Parliament on the issue of whether an incidental matter has a reasonable connection with an acknowledged head of Commonwealth power. However, the ultimate responsibility under the Constitution for determining that question lies with this Court. As Sir Edmund Barton pointed out in Jumbunna((255) (1909) 6 CLR , at p 345): "Clearly the questions whether the end is legitimate and within the
scope of the Constitution, whether the means are appropriate and plainly adapted to the end, and consistent with the letter and spirit of the Constitution, are questions for the Court." Moreover, where the issue is whether a law for the protection of a quasi-judicial body is reasonably and appropriately adapted to achieving a purpose connected with a head of Commonwealth power, the judgment and experience of this Court as the ultimate appellate and constitutional court of the nation make it uniquely qualified to determine whether the law is so adapted.

25. When s.299(1)(d)(ii) is evaluated in the light of the history of the protection given to the established courts, the failure of the informant and the Attorney-General of the Commonwealth to suggest any reason why the Commission or its members should have greater protection than that given to those courts, and the far reaching interference with freedom of speech by s.299(1)(d)(ii), the proper conclusion is that that paragraph goes beyond what is reasonably and appropriately adapted to the ends which s.51(xxxv) of the Constitution seeks to achieve. In The Commonwealth of Australia v. John Fairfax and Sons Ltd.((256) (1980) 147 CLR 39, at p 52), Mason J. said: "It is unacceptable in our democratic society that there should be a
restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action."

26. It is not possible to hold the paragraph valid by any process of severance or through the application of s.15A of the Acts Interpretation Act 1901 (Cth). To do so would require this Court to engage in the legislative process which is the domain of Parliament.

27. The questions in the stated case should be answered:
1. (a) yes
(b) and (c) unnecessary to answer. 2. (a) no
(b) and (c) unnecessary to answer.

Orders

Answer the question in the case stated by the Federal Court of Australia and removed into this court pursuant to s.40(1) of the Judiciary Act 1903 (Cth) as follows: Question: Is s.299(1)(d)(ii) of the Industrial Relations Act 1988

(Cth) a valid law of the commonwealth within the provisions of the Constitution?

Answer: No.

Answer the question in the case stated by the Chief Justice as follows: Question: (1) In the circumstances referred to in pars 1 to 12 of the
case stated:

(a) Is s.299(1)(d)(ii) of the Industrial Relations Act invalid? (b) Does s.92 of the constitution prevent the application of s.299(1)(d)(ii) of the Industrial Relations Act to the printing, publication and distribution for sale by the applicant of the article by Mr Maxwell Newton in the Australian newspaper on 14 November 1989?

(c) Does any guarantee implied by the constitution prevent the application of s.299(1)(d)(ii) of the Industrial Relations Act to the printing, publication and distribution for sale of the article by Mr Maxwell Newton in The Australian on 14 November 1989?

Answer: (1) (a) Yes. (b) Unnecessary to answer. (c) Unnecessary to answer.

Question : (2) In the circumstances referred to in pars 1 to 13 of the case stated:

(a) Is S.299(1)(d)(ii) of the Industrial Relations Actvalid in its application to the events referred to in par.13?

(b) Does s.92 of the constitution prevent the application of S.299(1)(d)(ii) of the Industrial Relations Act to the printing and publication by the applicant of the article by Mr Maxwell Newton in The Australian newspaper at Sydney on 14 November 1989?

(c) Does any guarantee implied by the Constitution prevent the application of S.299(1)(d)(ii) of the Industrial Relations Act to the printing and publication by the applicant of the article by Mr Maxwell Newton in The Australian newspaper at Sydney on 14 November 1989?

Answer: (2) (a) No. (b) Unnecessary to answer. (c) Unnecessary to answer.

Order that the respondent pay the costs of the applicant in this Court, including reserved costs.