Nationwide News Pty Ltd v Wills

[1991] HCATrans 347

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S91 of 1990

B e t w e e n -

NATIONWIDE NEWS PTY LTD

Plaintiff

and

ANDREW GARRY WILLS

Respondent

Removal pursuant to

section 40 of the Judiciary Act

1903

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 5 DECEMBER 1991, AT 10.18 AM

(Continued from 4/12/91)

Copyright in the High Court of Australia

Nationwide(2) 224 5/12/91

MASON CJ:	Mr Solicitor for New South Wales.
MR MASON:	If the Court pleases. Your Honours, our learned friend the Solicitor for South Australia relied
upon section 112 as a basis for discriminating
between an absolute freedom in relation to things
other than goods to cross the border, but as the basis upon which there was some constitutional
recognition of a right of at least some form of
regulation with respect to goods.

We would submit that that is putting too much

weight upon the shoulders of section 112.	One can
envisage inspection laws that would offend

section 92, for example, "Look for the label 'Made

in New South Wales'" and the like, and it would

also appear to confine section 92's protection with
respect to intercourse, which is clearly, whatever
it means, to be seen as some generality, and to

confine it in such a way as to preclude the benefit

extending to goods and to treat goods and persons,

particularly goods in the company of persons,

differently.

We would submit that while section 112 is part

of the total material which shows that the absolute

freedom of intercourse which section 92 grants is

not inconsistent with some reasonable regulation,

it does not take the matter much further.

Your Honours, I was taking the Court

yesterday, briefly, through the Canadian decision

of Kopyto, in the bundle of papers which we handed

up, for the review of the law in Canada and

elsewhere relating to scandalizing the court and

the application of what is referred to as the

proportionality test in the question justifying it

under the Canadian charter.	I think I had got to
about page 14 of the bundle.
Court of Human Rights and a reference to the case	the position taken on the issue by the European At 236 of the report there is a reference to
of Sunday Times v United Kingdom, which was on our
list of authorities. That was a case involving subjudice contempt. But at the top of page 237
there is the holding of the European Court:

that the interference with the applicants'

freedom of expression -

that flowed from the decision of the House of

Lords -

was not justified under art 10(2) which

permits such restrictions on freedom of

expression "as are prescribed by law and are

Nationwide(2) 225 5/12/91

necessary in a democratic society ... for

maintaining the authority ... of the

judiciary". The court decided that, although

the injunction was prescribed by law and was for the purpose of maintaining the authority of the judiciary, the restriction was not

justified by a "pressing social need" and

could not therefore be regarded as

"necessary".

Just before I leave the European position, at

the end of the bundle of papers is an extract from

portion of the article by Clive Walker relating to
"Scandalising in the Eighties", and that author
discusses the Sunday Times decision at page 26 of
the bundle, and expresses the opinion for the
reasons set out, that the common law offence of
scandalising would perhaps not pass muster under

article 10(2) of the European convention.

Returning then to Kopyto if I may, at page 238

of the report there is a summary in the top

left-hand part of the page:

The United Kingdom, although recognizing the existence of the offence, has not

registered a conviction for over 60 years.

Australia and New Zealand which recognize the offence do not have a constitution which

guarantees the right of freedom of expression.

The European Court of Human Rights has

stressed the importance of freedom of

expression and limited the scope of the

restrictions on that freedom. The United

States Supreme Court does not recognize the

offence and has found some most intemperate

criticisms of the courts and judges to be

protected by the constitutional right to free

speech. Comments on trials which have been

completed have been found almost invariably to

come within the protection of the First

Amendment.

And then I refer the Court to the next paragraph.

Having discussed the overseas material, the

court then proceeds to inquire whether section 1 of

the Canadian Charter is complied with and at the

top of page 239, and they are quoting from a

Supreme Court decision of Oakes, there is a

reference to the test to show whether the means are

reasonable and demonstrably justified, and there is

a form of proportionality test, which is discussed

in the second paragraph that is quoted, not, it

would appear, greatly different from some of the

principles enunciated by this Court in relation to

reasonable regulation under section 92.

Nationwide(2) 226 5/12/91

On page 240 of the judgment, His Lordship then

applies that test, and in the middle paragraph,
after referring to the need to find a real and

substantial danger of prejudice, said that:

This was essentially the test laid down by the

European court ..... That requirement should

also be an essential condition of the offence

of scandalizing the court, as it would go some

distance towards ensuring that the offence:

"impairs 'as little as possible' the right or

freedom in question". In the absence of such
a requirement the limitation imposed by the

offence cannot meet the proportionality test

as it is both arbitrary and irr 0 :.onal, based

as it is on the unproved assump~ Jn that the

comment will lower the authority of the court.

I am confident that the public, if not the

media, will take into account the source of

the comment before deciding that the court

should be regarded with contempt or its

authority lowered.

And then there is a reference to mens rea.

Your Honours, I will not take you through the other judgments, if I may. They also contain some

discussion of the overseas position. There is some

disagreement among Their Lordships as to whether,

if the offence were narrowed in some way, it would

pass through the gateway of section 1 of the

charter, but all three of the judges in the

majority were of the view that the present law could not be justified in that it went too far.

Your Honours, whilst we had referred the Court

to these principles and the other cases and

writings at the bottom of page 3 of our outline, in

the context of hopefully providing some assistance

to the application of a reasonable regulation

approach to this section, the principles there

discussed may also be relevant to the initial

question of validity which we address in

paragraph 1 of our submissions, because if a law,

even with justification and fair comment

qualifications, may be seen as excessive, where

there is a constitutional protection in play, then

a fortiori, this law may be beyond power,

particularly if it does not have the protections of

defence of justification and fair comment.

Your Honours, in support of the submission of

our learned friend, Mr Jackson, about
discrimination being part of the test, the

preferred test, for dealing with legislation that

is supposedly or argued to be in breach of

section 92's protection of freedom of intercourse,

Nationwide(2) 227 5/12/91

may we just look for a moment to the facts of this

case.

Here the idea, the communication, comes from

the United States to Sydney, and is, so far as the

particular offence in question, converted into

newsprint which is sold in Sydney. The section, on

its proper construction, would appear to make as

the basis of the offence the distribution of the

newspaper, the putting out of the words rather than

their internal composition.

At that stage it is, in our submission, very

difficult to see how section 92 could have any

application with respect to this law as regards not

only this particular applicant but persons

generally. What then happens is that the facsimile

of the newsprint is sent to Brisbane and then, in

Brisbane, let is be assumed, the paper is then put

on sale at that stage.

The applicant prays in aid section 92 to say

that at least its Brisbane publishing enterprise is

affected detrimentally by its inability to

communicate freely between States the information

that has initially been put into hard copy in

Sydney.

In our submission, to recognize that somehow

or other the publication in Brisbane is to be

regarded any differently than the publication in

Sydney, and differently in the sense that it

attracts section 92's protection, would be to

contravene one of the key principles that was discussed in Cole's case - and I am referring

particularly to the passage at page 402 in

165 CLR - where one of the main reasons that led

the Court to abandon the earlier doctrine was

that - and I am reading from near the bottom of the

page -

in some respects the protection which it

offers to interstate trade is too wide.
Instead of placing interstate trade on an equal footing with intrastate trade, the

doctrine keeps interstate trade on a
privileged or preferred footing, immune from
burdens to which other trade is subject.

There was also reference in the case to the difficulties that the Court had found itself in

with contrived border crossings and the like.

Now if, on the facts that I have referred to,

the publisher has some protection from section 92

with reference to its Brisbane communication, when

it is clear on the interpretation of the Act that

Nationwide(2) 228 5/12/91

the mere faxing of the material across the border

was not a breach of section 299, we have brought

about the situation that, simply by reason of some

antecedent interstate event which precedes the

relevant act - in this case being the publication

in Brisbane - the benefit of section 92 has fallen

upon the particular publisher. That not only

creates a special category of privileged persons,

but it would also lead persons to structure their

affairs so that one could envisage the information

being zigzagged across the country simply to draw
down the benefit of section 92 with reference to
the subsequent publication, the uttering of the

offensive words.

To develop it in a slightly different context,

if one considers defamation law - truth and public

benefit being a defence in New South Wales, truth

and public interest alone in Victoria - how does

the section 92 analysis that is offered by my

learned friend, Mr Hughes, accommodate the

differential in the State law of defamation if it

is generally accepted and understood that where you

sell a newspaper in a different State you have to

comply with the law of defamation as it is in that
State?

Now, is it to be said that section 92 somehow or other frees the publisher in a truth and public benefit State from the burden of a truth and public

interest law and allows the publisher to say,

"Well, this idea originated and was first published

in a truth State and I am impeded in communicating

it to another State and, therefore, I claim the

benefit of section 92". We submit that could not

be the proper operation of section 92 and that

something has gone wrong in the analysis at an

earlier stage.

So far as the implied guarantee is concerned,

Your Honours, the only things we would wish to say

in addition to what is in paragraph 4 of our

submission are two matters: firstly, the guarantee

would not, in our submission, be confined to

striking down State laws as my learned friend,

Mr Jackson, put it. Presumably, a Commonwealth law

that said, "No person is allowed to enter a Federal

Court or to petition for redress in the Federal

Parliament", might fall foul of the implied

constitutional guarantee just in the same way as a

State law would.

Secondly, the implied guarantee is of a

narrower status than a general guarantee of freedom

of speech based upon the democratic nature of our

government. In our submission, the implied

guarantee that one can draw out from the

Nationwide(2) 229 5/12/91

Constitution is, at its highest - and this is not really the case to explore it - a right of access to the organs of government, whether those organs

happen to be in the Antarctica or the Australian

Capital Territory and whether that access is across

State borders or within a Territory or within a

State.

One can envisage situations where a law fell

foul of that implied guarantee, but clearly this is

not such a one, because the implied guarantee does

not go so far as to say that you can communicate

with the government by publishing a critical

newspaper article about the government or about an

organ of the government.

As to severability, Your Honours, we give reference to some pre-Cole v Whitfield decisions,

in particular Mansell v Beck, 95 CLR 550. One of

the sections there involved was section 20 of the

Lotteries and Art Unions Act which made it an

offence to print and publish an advertisement

relating to a foreign lottery. A conviction under

that section was said to be bad because of the

protection of section 92.

Your Honours, the discussion of the Court in

relation to that aspect of the matter is to be

found partly in the report of Mansell v Beck and

partly in the association report of Consolidated

Press v Lewis. The relevant pages, Your Honours,

are in the judgment of Mr Justice Williams at 573,

575 and 576 - that is in Mansell v Beck itself - in

the joint judgment of Chief Justice Dixon and

Justices Webb, Kitto and Taylor, particularly at

601, which is a separate judgment in the

Consolidated Press matter, and

Mr Justice Fullagar's separate judgment is at 603.

It has to be conceded immediately that a great part of the reasoning of Their Honours turns upon

the criterion of operation test which has, of

course, been set apart. Perhaps in the judgment of

Mr Justice Fullagar, at page 603, there is a

departure from that because His Honour there said

that the mere fact that:

The act which constitutes the

offence ..... involves no element of inter-State

trade or commerce or intercourse, but it does

not necessarily -

take the matter outside of section 92. But he

held, as did the rest of the court, that in the

making of the advertisement, even though the

advertisement published an idea that came from

interstate, in the publishing of the advertisement

Nationwide(2) 230 5/12/91

there was no contravention of section 92.

Your Honours, those are the additional matters we

would wish to put.

We do address a possible distinction between

the print media and the electronic media in

relation to section 92. Where a signal is sent

from a transmitting station close to a border it

would be impossible to say perhaps that the law is
good with respect to so many of the people that

received the message before the border and bad to

so many as receive it across the border. And if

section 92 were involved because of whatever test

the Court applied to that interstate communication,

then the transmitter of that signal may have the

entire protection.

That would not necessarily follow with respect to a networking arrangement where it was simply

the commercial benefit of linking up a whole

series of signals and sending them interstate.

That would not necessarily confer upon the entire

network the benefits of section 92 if it were

otherwise appropriate. But, certainly, that

situation can, in our submission, be distinguished

from the position of the print media where in an

event such as the present one the act which gives

effect to the penalty is the publishing of a

particular newspaper and where that act falls

generally without discrimination and can arguably

be justified as a reasonable regulation, in any

event, then section 92 has nothing to say, in our

submission.

BRENNAN J: 

How do you then deal with the electronic media,

one transmission, two lots of receptions, in the
light of your submissions with respect to newspaper

publications answering the requirement of varying

laws of defamation?

MR MASON:	If a law of defamation were discriminatory and/or did not constitute a reasonable regulation by a
State government then,in its application to an interstate transmitter, section 92 would present an
immunity. Where that interstate transmitter was
transmitting a single signal it would not be possible to sever the operation of the invalid
law - and I am assuming it is an invalid law - and
say, "Well, you are guilty with respect to so much of the signal that is short of the border, but 92
protects you beyond", because that is a single act of transmitting that signal and, on the assumption
I am making, section 92 would immunize that whole
transmission from the defamation law of whichever
State, then in that event the whole signal would be protected, but if the signal were relayed to a
sister station in another capital city and then

Nationwide(2) 231 5/12/91

transmitted afresh there, the fresh transmission

which would be within a signal area that would be

confined presumably to one State, then that fresh transmission just could not invoke section 92 and

the law, even if invalid in its interstate

operation, would not be invalid in its intrastate

operation qua that signal.

BRENNAN J:  Why do you not treat the reception of a signal

as akin to the acquisition of a newspaper in the

place where the signal is received?

MR MASON:  The reception by the television viewer?

BRENNAN J: Yes, that the publication is at the TV set, not

at the transmission station.

MR MASON:  In an offence such as this one, the offence seems

to be the uttering of the words. With a newspaper
the words are uttered when the copy is sold; in the
television situation certainly they have to be

received, but in the practical application of that

to a television signal, the offence, as long as

there was not a blackout, would probably occur when
the signal was sent and would occur with respect to

everybody who would be within the ordinary signal

area of that signal. That would be the answer I

give. If the Court pleases.

MASON CJ:	Thank you, Mr Solicitor.	Mr Dunphy.
MR DUNPHY:	Your Honours, may I hand up an outline of our submissions.	The test we submit should be adopted

in relation to the freedom of interstate

intercourse under section 92 is similar to that put

by the Commonwealth. Your Honours, while

section 92 encompasses distinct freedoms, we are

dealing with a single section of the Constitution,
and in our respectful submission it is important

that there be an overall consistency in approach to

the extent that that is possible.

In paragraph 5 of our outline, we submit that

as regards a law which imposes a burden on
interstate intercourse where the affected activity

occurs in or in connection with trade or commerce,

that the test established in Cole v Whitfield

should apply. In all other cases, we submit that

the test is one of reasonable regulation.

Taking up a point made by Your Honour

Justice McHugh yesterday, perhaps the test should

be called something else. It perhaps could be

called "necessary regulation" or even be described

as a "permissible burden exception". It is

unfortunate but true that "reasonable regulation"

has a certain stigma attached to it, and no doubt

Nationwide(2) 232 5/12/91

one thinks of the difficulties that occurred in

cases such as Clark King & Co v The Australian

Wheat Board and Uebergang v The Australian Wheat

Board. I will deal subsequently with the issue of

the appropriateness of that test.

In paragraph 6 of our outline we suggest two

reasons for this approach:  The first relates to

the historical context, and in that regard,

Your Honours, could I refer you to a statement in

Bank of New South Wales v The Commonwealth,

76 CLR 1, and in particular page 381. At about

point 5 in the judgment of Sir Owen Dixon the

following statement is made:

"Intercourse" was doubtless added because of

the view, now no longer open in the United

States, that commerce might not extend to

intercourse that was not concerned with

business profit or pecuniary gain and because

of the degree to which the right of the
citizen to access to every constituent part of

the Union had been rested on implication.

Whilst it is true that Sir Owen Dixon earlier in

that part of his judgment perhaps got the

historical context wrong, we think that he has

drawn the correct conclusion about the

interrelationship between the insertion of the word

"commerce" and "intercourse".

The second reason we put for our approach in

terms of the preferred test is that we see it as a

desirable thing to avoid any overlapping between

the test in Cole v Whitfield and the test to be

applied in respect of interstate intercourse.

McHUGH J:  I know that the Court said in Cole v Whitfield

that intercourse was different, but it is in

Chapter IV headed "Finance and Trade". When you

therefore freedom of movement throughout Australia	read the debates, why should one not read intercourse as meaning commercial intercourse, and
depends upon implied guarantees in the Constitution in the same way as the United States do.

MR DUNPHY:  Your Honour, in terms of the convention debates,

it is true that there was not a lot of direct

discussion on the meaning of intercourse, apart

from its meaning in connection with trade. But in

the context of the actual Federation process there

are some discussions about the issue of the rights
of citizenship in terms of movement, limited though

they may be, and we think that that provides some

support for this approach, that is to say that

intercourse means something more than just

commercial intercourse.

Nationwide(2) 233 5/12/91

McHUGH J: Before the imposition of uniform duties, what

right did Australians have to go from one State to

another? Where did they get their right?

MR DUNPHY:  Your Honour, that is a very good point. I

suppose, to a certain extent in this regard,

freedoms exist until they are burdened otherwise,
but I do not think I can really answer that, to be

honest.

MCHUGH J: Yes.

MR DUNPHY:	Our main point of departure with the approach of the Commonwealth is that we submit that the
so-called reasonable regulation test would be
sufficient. However, we do see the issue of
discrimination being a component of that test. In
our submission, when one looks at the test in Cole,
discrimination in a protectionist sense actually
requires an evaluation of the comparative effect of
the law on interstate and intrastate competitors.
When one looks at intercourse, discrimination in
that sense does not appear to be quite as fundamental a consideration, though we say it is
still relevant, and factors such as whether the law targets only interstate intercourse or is of
general application are certainly relevant.

In paragraph 9 of our outline we set out our

test of reasonable regulation. Could I briefly

refer to the submissions of my learned friend, the

Solicitor-General for South Australia, when he

suggested yesterday that the reasonable regulation

test may be leading the Court down the wrong road.

Your Honours, in our submission, we do not believe

that is the case. First of all, if one looks at

the elements of the test that we have posed in

paragraphs 9(b)(c) and (d) of our outline, in our

respectful submission, there are considerations

contained therein which are very similar to the

components of the present test settled in Cole v

Whitfield. In this regard, Your Honours, could I

refer you to the decision of Castlemaine Tooheys

Ltd v South Australia, 169 CLR 437, in particular

to the passage at 471 in the joint judgment of

Your Honours the Chief Justice, Justices Brennan,

Deane, Dawson and Toohey. At the foot of the page:

On the other hand, where a law on its face is

apt to secure a legitimate object but its

effect is to impose a discriminatory burden upon interstate trade as against intrastate

trade, the existence of reasonable
non-discriminatory alternative means of
securing that legitimate object suggests that

the purpose of the law is not to achieve that

legitimate object but rather to effect a form

Nationwide(2) 234 5/12/91

of prohibited discrimination. There is also

some room for a comparison, if not a

balancing, of means and objects in the context

of s.92. The fact that a law imposes burden

upon interstate trade and commerce that is not

incidental or that is disproportionate to the

attainment of the legitimate object of the law
may show that the true purpose of the law is
not to attain that object but to impose the

impermissible burden.

And, Your Honours, I would also give

Your Honours a reference to a statement in the

joint judgment of Your Honour Justice Gaudron and

Your Honour Justice McHugh, at page 480 at about

point 5, starting with the words "however" down to

the end of that paragraph.

In our respectful submission, it is also true

that the concepts of reasonable proportionality and

laws which are appropriate and adapted are

important components of the test that this Court

has established in relation to the external affairs

power in the Tasmanian Dams case and subsequent

cases. In that instance the concepts apply in

connection with an examination of whether a

particular Commonwealth law can be justified as a
proper exercise of Commonwealth power. The point

we make is that the approach that we have suggested

in paragraph 9 is consistent in its elements with
other approaches the Court has taken, in

particular, in Cole v Whitfield and in interpreting

other sections of the Constitution. We concede

that on individual cases on the facts there may be

difficult issues but that is another issue, we say.

Your Honours, our alternative test is set out in

paragraph 10 and it is a cumulative test, that is

the test in Cole v Whitfield plus the reasonable

regulation test.

In terms of this case we say that, applying

our first preferred test, the interstate
intercourse occurred in or in connection with
interstate trade, accordingly the test in Cole

v Whitfield should be applied. The section in

question is not protectionist in form or effect.

If the alternative test is adopted by this Court,

then the section may be a reasonable regulation

depending on how the construction point is
determined. In relation to the issue of implied

guarantees, we would respectfully adopt - - -

McHUGH J: But why should you get a different test simply

because there is a commercial aspect of this.

Supposing Newton was prosecuted in this case.

Because his article is published in a newspaper you

Nationwide(2) 235 5/12/91

apply one test, if he had sent the article to his

mother in another State you would apply a different

test. Why should that be the case?

MR DUNPHY:  Your Honour, the rationale, I agree, is not easy

to understand, and this approach leads to some

difficult results in particular factual areas. I

think the best we can put it is that in fact when

you look at what the freedom was in relation to

intercourse in relation to section 92, that

intercourse there extends freedom something else

than trade, so it is the non-commercial

intercourse. In our submission, that is as far as

we can put that, Your Honour. Those are my

submissions, if it please the Court.

MASON CJ: Thank you, Mr Dunphy. Mr Hughes?

MR HUGHES:  May it please Your Honours, I shall endeavour,

if I may, to be in a sense discriminatory in my

reply, because a number of points have been argued

over a wide spectrum of discussion. In the case of

some of the points, for example, interpretation,

that is interpretation of the section, and

severability, the arguments, if I may respectfully

suggest, are fairly ranged on both sides and a

reply would do very little to elucidate those

questions.

The first point I would like to take up, if I

may, relates to a question asked by Your Honour

Justice McHugh a few minutes ago of my learned

friend, Mr Dunphy. Your Honour of course was not

party to the decision in Cole v Whitfield, so that

Your Honour in a sense, if I may say so without

disrespect, has possibly a degree of freedom that

is not necessarily available to other members of

the Court.

McHUGH J:	I have applied it and my view is that cases should be applied unless you are convinced that
they are wrong. It does not matter - - -

MR HUGHES:  Yes. Can I take up what Your Honour suggested.

If upon full consideration the view were ultimately

open and adopted by this Court that the intercourse

referred to in section 92 takes colour from its

surrounding words and is commercial intercourse
only, then the way is opened up for the view that
freedom of movement within the Commonwealth

available to the people of the Commonwealth comes

from some source. If it does not come from

section 92, it must come from somewhere else.	The
only other source of that freedom would be implication arising from the nature of the
Constitution.

Nationwide(2) 236 5/12/91

McHUGH J: That was the American view. It had to be.

MR HUGHES:  It had to be, and it was a view that did not

depend, ultimately or fundamentally, on the

fourteenth amendment, because Crandall v Nevada,

followed by the Slaughter-House Cases, reached the

conclusion that the implication was there quite

separately and independently of the fourteenth

amendment and, in my submissions to the Court on Tuesday, I drew attention, without going through

the tedium of reading all the material, to the

passages in the 1898 convention debates where they

were discussing a proposed fourteenth amendment and

Mr Isaacs said, "You don't need it. We don't need

it", because the fourteenth amendment was a

political gesture directed at the former

slave-owning States and - - -

McHUGH J:  That was the other point. The fourteenth

amendment was not introduced until when, 1870, or

somewhere like that?

MR HUGHES: Crandall v Nevada was 1867 and the fourteenth

amendment was 1870, and the Slaughter-House Cases -

and they are on the A list; I did not read them, I

referred to them - make the point, amongst others,

that the sort of freedom that is the immunity or

privilege of the United States' citizen resides in

implication from the nature of the Constitution,

quite apart from the fourteenth amendment.	And, of
course, one of the attacks of - I do not use "attack" in a pejorative sense - one of the

criticisms made about our argument, in relation to

Crandall v Nevada and the Slaughter-House Cases is

that those cases really relate only to restraint -
treat the fourteenth amendment as a restraint on

State power. That is not the correct view of the

situation, in our submission, particularly when one

bears in mind the effect of the decision in Hague,

from which I read on Tuesday.

In terms of rational analysis, I would venture

to suggest, if there are privileges and immunities deriving from the nature of the Constitution, from the very fact of one's position as one of the

people of the Commonwealth or of the United

States - - -

McHUGH J: Well, the Constitution recites that the people

have agreed to unite into one indissoluble - - -

MR HUGHES:	I was going to refer to that covering clause.
McHUGH J:	in the covering clause.
MR HUGHES:	Yes, and it is in that clause that you can

derive an implication of freedom of movement and it

Nationwide(2) 237 5/12/91

is incorrect, in my submission, to treat Crandall v

Nevada as relating only to a right of access to a

federal territory such as the seat of government.

The principle that resides in Crandall v Nevada,

and the other following cases, shows that the

privilege or immunity is much wider and, in the

instance of the United States, is a series of
implications deriving from the nature of the system

of government.

Also on our A list - and I did not take time

to refer to it and I will not read from it, because

it would trespass over the limits of reply - there

is Katzenbach, which is on our list, which makes it

plain that under the United States' Constitution

the privileges and immunities referred to in the
fourteenth amendment, which are there anyway by

implication, apply inviolate in the face of federal

legislation as well as State legislation.

So that, the criticism that was made of the

use to which we sought to put Crandall v Nevada, on

reflection of the whole case law scene, would be

seen, we respectfully submit, to be unfounded. The relevant page in Katzenback - and I am not going to

read it - is 384 US at page 651.

The next small point I would wish to make

about the criticism made by my learned friend,

Mr Jackson, of our argument on implied immunity is

that he tended, we would submit with respect,

incorrectly to discount what Quick and Garran said

at pages 958 and 959, because it is quite plain

that the authors had in mind privileges and

immunities against the operation of federal law as

well as privileges and immunities against the

operations of the law of a State. That point is

made perfectly plain at page 959, which I did not

read, but did refer to. The learned authors said:

As there is no necessity for specially

declaring that the privileges and immunities

of the people of the Commonwealth may not be a

breach by the States, so there is no necessity

for specifying any procedure by which they may

be enforced. They may be described as

self-executing. Every privilege or immunity

conferred by the Constitution implies a

prohibition against anything inconsistent with

the free exercise or enjoyment thereof.

Any privilege or immunity of a person of the

Commonwealth, of a Commonwealth person, would be

largely illusory if it were not a privilege

protected against intrusion by Commonwealth law, as

well as by State law.

Nationwide(2) 238 5/12/91

I want, if I may, now, to go to another aspect of the implied guarantee argument. My learned

friend, Mr Jackson, for the purpose of bringing our
argument on implied guarantee down, really
attributed to us a statement as to the scope, the

ambit of the implied guarantee which, with respect

to him, was incorrect.

We have not contended, as my learned friend

suggested, for an implied guarantee of freedom of

speech residing in the Constitution because of the

nature of the system of government.	We do not need
to go that far.	We do not intend to go that far.

I endeavoured to restrict the scope of the implied

immunity, for which we would contend, to an
immunity subject to reasonable regulation as under

the law of sedition to criticize, maybe
trenchantly, but to criticize the emanations, the

organs of the government - using government in a

very wide sense - set up by laws of the

Commonwealth made under the Constitution. That is

not a wide freedom. A claim to an implied immunity

for freedom of speech would be a very wide claim

and it is not necessary for us to make such a wide

ambit claim in this case, Your Honours.

When I said a moment ago that, "One uses the

word 'government' in the wide sense", I mean

"government" to include not only the Parliament,

but judicial organs, or arbitral organs, set up

under laws made by the Parliament under the

Constitution, and that is the way we seek to put

the case on implied guarantee. Of course, the

other face of the mountain, as it were - well, we

would say it is only a little hill - the other face

of the little hill is to view the matter through

different spectacles, namely power.

Now, on the question of power - I hope the

Court will acquit me of dealing with the matter in

detail in reply because there has been a full

discussion on that question - all I would say is

that if the construction of the section is as we

assert, there is, to take the alternative view, an

excessive power for such a drastic prohibition on

speech. It does not pass the test of

proportionality.

TOOHEY J:	Mr Hughes, is that submission based on the proposition that the section as construed admits of
no defence other than what might be spelt out of
the language of the section?
MR HUGHES:	It certainly is based in part on that, yes,

Your Honour, principally on that.

Nationwide(2) 239 5/12/91

TOOHEY J:  Then what if it is possible to construe - well,

perhaps not to construe the section - but to import

defences such as justification, what happens then

to you argument about constitutionality?

MR HUGHES:  We would still maintain that the section goes

too far because it goes to the extent of

protecting, for example, a commissioner against

defamation of him, not in his character as a
commissioner but in his character as a private

person, and that would go too far.

But on the question of importing by some sort

of ambulatory process, depending on which State you

find yourself in, a network of defences based on

State law, we would say that that is not a

permissible approach to the construction of this statute. Certain principles of the criminal law

may be thought to apply to any prosecution; mens

rea, duress and so forth, but in construing a

statute creating a criminal offence such as this

one, one simply looks at the conditions of

liability prescribed, one finds whether or not there are any conditions of defeasance of that liability, here there are none, and of course on

this aspect of the case we would briefly refer to

the fact that if you look at the neighbouring

sections you find provisions and, indeed, within

this section itself you find provisions importing

an element of willfulness into an offence and in at

least two instances - I will not go to the

sections, they have already been referred to - you

find references to lack of reasonable cause as

excuse, as elements in the offence, and it is not

difficult, we suggest, to apply the noscitur a

sociis principle to say, "Well, if you look at

those other provisions and you find no similar

provisions in section 299, the conclusion is pretty

clear that there is not some sort of exotic

importation of common law defences".

TOOHEY J: But that is to put the matter, as I understand

you to be putting it, as one of construction only.

MR HUGHES:	Yes.
TOOHEY J:	The argument against you goes a bit further, does

it not, that independently of construction of the

section there may be defences, or are or may be

defences available to a person who is charged with

an offence under section 299?

MR HUGHES:  The way in which the argument is put, if I may

say this, Your Honour, is by resort to the analogy

of the law of contempt. My learned friend,

Mr Jackson, cited Gray's case. Justice Brennan

yesterday read out the qualification put upon the

Nationwide(2) 240 5/12/91

definition of the offence of scandalizing the court

in the judgment of Lord Russell of Killowen. What the argument put against me on the aspect to which

Your Honour Justice Toohey has just referred fails

to attend to is the very difficult question perhaps

of whether, in defending oneself against a charge of contempt in the way of scandalizing the court, one has defences of truth or defences perhaps of

fair comment, or whether rather those factors -

truth, for example - are elements which must be

negated by the prosecution.

That view is probably better, although the

authorities are pretty confused, than the view that

truth is a defence to a charge of contempt or truth

and public interest. Your Honours will recall that

my learned friend the Solicitor-General for New

South Wales yesterday read from the Canadian case

the various definitions or descriptions of the

common law offence of scandalizing the court. He

referred to the New Zealand formulation of that
offence which is also, as I recall, the formulation

that applies in New South Wales, and probably in a

lot of other jurisdictions, that the matter

complained of must be such as to carry with it a

real and distinct probability, as opposed to a

remote possibility, that the course of justice will

be polluted.

That approach really implies that truth, for

instance, is not a matter of defence; it is a
matter to be negated by the prosecution. In other

words, the common law offence is one, the proof of
which requires the prosecution to tilt the balance down in favour of protecting the court, as against protecting the public interest in discussion of

important topics. That is a rather long-winded

attempt to answer Your Honour Justice Toohey, and I

hope I have not gone too far.

TOOHEY J: Well, certainly there are conceptual and

practical difficulties in seeking for defences from

State to State that stand truly as defences, not

bearing upon the content of the offence created by

section 299.

MR HUGHES:  Yes, Your Honour, and that brings me to make a

passing referen.ce, if I may, to a point that was

argued by my learned friend, the Solicitor-General

for New South Wales, this morning, when he adverted

to the possible difficulty in terms of judging a

law under section 92, from the perspective of applying section 92, where you have different

defences to defamation in different states.	The
answer we would seek to	to that difficulty is
s	this, that laws having a different content -

for example, truth as against truth and public

Nationwide(2) 241 5/12/91

interest - may both be, in the context of the

jurisdictions in which they apply, perfectly

reasonable species of regulation.

McHUGH J: Well, it seems to me there may well be a

difference between communications, for example, and a commercial transaction, as such, because although

even in the commercial transaction the interstate

resident has got an interest, when you are viewing

a communication, both sides of the border, in

effect, have got an interest. So you have got to

look at it really as an interstate transaction, not

merely as an intrastate transaction.

MR HUGHES:	Yes.
McHUGH J:	I do not know where that leads.
MR HUGHES:	There has been some discussion, and perhaps I

can develop the thought that Your Honour has in

mind, or that I think Your Honour has in mind, by

reference to the discussion that has taken place

concerning the constituents of the offence under

section 299(l)(d)(ii). The prohibited activity is

the use of words and I have suggested that that

means communication and that communication and

expression are really, in the context of this

section, inseparable notions. But it is the use,

that is the communication, of words having the

requisite - the prohibited tendency, and we would

venture to suggest that, on the facts in this case,

there has been a variety of communications of an

interstate character, one of which, of course, is

the transmission of the facsimile from Sydney to
the various points in other States at which the

facsimile is made into newsprint.

Now, we would assert, on the question of

interstateness, that the transmission of the

facsimile is relevantly a communication because it

is something that takes place in circumstances in

which, even within the office of the newspaper

company in, say, Adelaide or Perth, somebody is

likely to read it. That is clearly an interstate

communication.

We, of course, go further, and I did this on

Monday, and say that there are other forms of

interstate communication here of the relevant

article because we invoke the analogy in relation

to the ultimate supply of a newspaper, say, to a

reader in Albury who goes to the newsagent and buys

it, we invoke the analogy of the first sale after

importation into a State from out of State of an

article for the purposes of that very sale. So

there is a network here of communications having,

we would respectfully submit, a clear interstate

Nationwide(2) 242 5/12/91

character. When one analyses the section, we would

say that at bottom what it prohibits is the act of causing someone to receive the communication which

has the requisite tendency.

Going on from there, we would invoke, for the

purposes of our argument, a passage in the judgment

of Your Honour the Chief Justice in MacGraw-Hinds,

144 CLR 633. That was a case in which the receipt

by a person in Queensland of a particular sort of

document, a document soliciting purchase, was

deemed to be the assertion of a right to payment.

It was a piece of legislation directed against

unsolicited sales. We would refer, with respect,

to the judgment of Your Honour the Chief Justice at

page 659. It was a case where the particular

activity sending the prohibited document was really activity in the nature of intercourse interstate on

the facts of the case, even though it was connected

with a commercial endeavour, but it wore the

character of intercourse.

In the passage at page 659, and I will not read it, Your Honour equated the prohibition of

receipt as equivalent to a prohibition of despatch in the course of post in that case, from New South

Wales to Queensland. We suggest, with respect,

that that strain of thought can be applied to the

consideration of the relevant paragraph in

section 299.

That brings me to the last major point with

which I need to deal in reply. The view for which

we have contended differs radically, of course,

from the views that have been propounded by my

learned friends on the question of what test or

tests one applies for distinguishing the respective

operations of the two independent guarantees in

section 92. In Cole v Whitfield this Court has

said that the guarantees are distinct. That is at

the top of page 388.	We say that the best approach
to that problem is to focus first and primarily, or

fundamentally, on the nature of the law that

characterized the law which is under consideration. Is it a law about trade and commerce or is it a law

about intercourse.

The task of characterization is seldom easy,

often acutely difficult, but it is a task with

which this Court, over the whole of its history,

has had to grapple. It is not an impossible task.

So one asks oneself, we say, looking at

section 299(l)(d)(ii), what is this law about? We

say it is a law about intercourse, not about trade

and commerce, because it imposes a blanket

prohibition on a particular species of

communication, and in that prohibition we would go

Nationwide(2) 243 5/12/91

on to say, the greater - that is, the blanket

prohibition - includes the lesser, which is the
implicit prohibition of interstate communication of

the particular message.

There may be difficulties in characterization

but at least the nature of the question is clear

and having characterized the law as a law about

trade and commerce, one would go on, we suggest, to

apply the Cole v Whitfield test. If one
characterizes the law as a law about intercourse,

even though it may incidentally affect trade and

commerce, one asks oneself, "Will the Cole v

Whitfield test work?", and of course, we submit

Cole v
that the answer to that must be no, because is a political theory that applies to imported

goods.

Now if it is a law about intercourse, there is

no difficulty, subject to the question of

severability, in saying that because it imposes a

blanket prohibition, it imposes a prohibition on

interstate intercourse, and we simply say, and have

said, that the test for that species of activity is

the test of reasonable regulation based on

proportionality and we invoke the sort of test that

was applied by this Court in Davis' case, albeit on

a question of power, and applied by this Court in

the Bottle case in Castlemaine Tooheys Ltd v South

Australia.

BRENNAN J: But, Mr Hughes, characterization is a procedure

which is used in reference to laws which are to be

brought within or without power. Section 92

extends to executive action, does it not?

MR HUGHES:	Yes.
BRENNAN J:	How then does your argument fit when it comes to

executive action?

MR HUGHES:  One can still characterize the nature of the executive action, I suggest, Your Honour.

BRENNAN J: Even though it is a law which might apply

indifferently to commerce on the one hand and

intercourse on the other?

MR HUGHES:  Yes, because the executive action, although the

task may be difficult, can be characterized as

belonging rather more to one than to the other.

BRENNAN J: Depending upon the nature of the specific

transaction?

MR HUGHES:  Yes.

Nationwide(2) 244 5/12/91

BRENNAN J:  And so section 92 is converted into a protection

of an individual transaction?

MR HUGHES: Well, maybe, Your Honour.

BRENNAN J: It just seems to me that once you adopt the path

of characterization in reference to section 92, you

are in a different line of country from that which

you would be in if you were adopting

characterization under section 51.

MR HUGHES: All I would venture to say, in an attempt to

answer Your Honour's very penetrating question, if

I may say so, is that there is no difficulty other

than the difficulty inherent in the nature of the

task in characterizing a law.

McHUGH J: But how do you do it, as a matter of substance or

as a matter of form because, for example, if the

prohibition is against the invoice or opposed to

the goods, is it intercourse if you prohibit

the - - -?

MR HUGHES:  Yes, it would be. One does not desert

substance. In the case of a prohibition of a

particular sort of invoice which was really

McGraw-Hinds, that was a prohibition affecting so

much of the transaction as was intercourse.

McHUGH J: This seems to be a reintroduction of the

criterion of operation test, does it not?

MR HUGHES:	What the law does can be deduced from its face without embarking into the forbidden territory of
the criterion of operation, Your Honour.
Your Honours, there are difficulties every way one
turns in this case and my learned friend, the
Solicitor-General for South Australia, with his
usual candor admitted.  I admit that there are
difficulties in my argument, that there is no
golden thread, but let me say that there are major
difficulties in my learned friend, Mr Jackson's,
approach.  He says you focus on the activities of
the person challenging the validity of the law
characterizing them as being either purely social intercourse or trading and commercial activity
which includes, or may include, commercial
intercourse - two boxes - and his argument says that if the activity falls into the purely social intercourse faculty you apply a possibly less stringent test, you look at reasonable regulation in terms of - the proportionality of the legislation, in terms of achieving a desired object.
If the intercourse is not purely social but partakes of commerciality, he propounds the Cole v

Nationwide(2) 245 5/12/91

Whitfield test. The difficulty inherent in that

approach is that it discriminates against

commercial intercourse. Take the test-propounded

by my learned friend the Solicitor-General for

South Australia. He says you apply to commercial

intercourse the Cole v Whitfield test and another

test, namely reasonable regulation based on proportionality, but he says you apply them

cumulatively.

He very candidly conceded that the application

of the cumulative test will cause the Cole v

Whitfield test to be swallowed up. It must follow

that that is so, because a law may pass muster as
not being an exercise in discriminatory

protectionism, but then fail as not being a

reasonable regulation.	So that is the pit into
which one falls.	My learned friend was perfectly

open in conceding it.

There is one part of the South Australian

submission on which we stand pretty well on common

ground. That is proposition 16 on page 3 of my

learned friend's submission:

The prohibition in section 92 is not formal.

A law which in terms does not operate on

movement across a border, but which impedes

such movement -

and the word "such" was excised in the course of

discussion -

will be valid only if it has an object which

is not to impede such movement -

and that was excised, the word "such" -

and the impediment which it imposes is not

disproportionate to that object.

MASON CJ:  I think there may be room for debate as to

whether the word "such" was qualified.

DEANE J:  I think you were hearing what you wanted to hear.

MR HUGHES:  I beg pardon, in that case. But we are quite

prepared to take it with the word "such" in, so

long as the reference to the object of the law is a

reference to that which you deduce by looking at

the operation of the law. So that, in this case, the object of the law is to be deduced by what it

does, namely, prohibit the whole spectrum of

communications, including interstate

communications.

Nationwide(2) 246 5/12/91

does, namely, prohibit the whole spectrum of
communications, including interstate

communications.

DEANE J:  I do not think that is exactly the way that the

Solicitor for South Australia was putting it,

Mr Hughes.

MR HUGHES:  Perhaps I am, again

DEANE J: But, I mean, it does not really bear upon the

correctness or otherwise, the way you are putting

it.

MR HUGHES:  No, quite. Perhaps I am reading it too much by

way but I leave the matter there. That has been a

rather long reply, Your Honours, and I apologize

for the length but I think I have come to the end

of what I need to say. If the Court pleases.

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

MR JACKSON:	Your Honours, I promised yesterday I would give the Court some documents to back up some assertions
made by Lord Gardiner.  May I do so. The pages of
the case to which is first referred to, which are material, are marked on the document.

Your Honours, may I have leave to make one

observation in relation to something that was said

by Your Honour Justice McHugh?

MASON CJ: Yes.

MR JACKSON: That was a reference to the first paragraph of

the preamble to the Constitution referring to the

one indissoluble Commonwealth.	The paragraph goes
on, of course.	When it goes on, what it is says is
they:

have agreed to unite ..... under the

Constitution hereby established.

And, Your Honours, one sees that the Constitution

follows from section 9 of the Act itself and then

section 5 of the Act says that:

This Act, and all laws made by the Parliament

of the Commonwealth under the Constitution,

shall be binding on -

amongst other people -

the people of every State and of every part of

the Commonwealth.

Nationwide(2)	247	5/12/91
MASON CJ:	Yes.	The Court will consider its decision in

this matter.

AT 11.43 AM THE MATTER WAS ADJOURNED SINE DIE

Nationwide(2) 248 5/12/91