Nationwide News Pty Ltd v Wills

[1991] HCATrans 344

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• "I

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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 WEDNESDAY, 4 DECEMBER 1991, AT 10.17 AM

(Continued from 3/12/91)

Copyright in the High Court of Australia

Nationwide(2) 139 4/12/91

MASON CJ: Yes, Mr Jackson?

MR JACKSON:  If the Court pleases, there are two matters

arising from the argument yesterday afternoon, with which I would like to deal briefly before moving on

with section 92. Your Honours, the first concerns

section 299(l)(d)(ii) itself; the second concerns

the ambit of legislative power.	May I deal with
them in that order.

In relation to section 299(l)(d)(ii),

Your Honours, in the course of the argument

yesterday, I adopted what had been said earlier by

Mr Weinberg in relation to the availability of

defences in connection with that provision. May I

indicate where that is to be found. Could I take

Your Honours to Mr Weinberg's outline of

submissions on the last occasion, and in particular

to paragraph 7.

If I might refer particularly, Your Honours,

first to the top of page 4 to paragraph 7(c).

Your Honours will there see references to the fact

that it is a common thing in Commonwealth statutes

for the statement of the offence not to be fleshed
out by a statement of the defences and principles
of criminal responsibility. Instead, the laws of

the States and Territories are applied in cases

where the offence is not one created by the Crimes

Act because of the operation of sections 79 and 80 of the Judiciary Act.

Your Honours, that aspect was discussed by the

committee reviewing Commonwealth criminal law in

the report which is referred to in paragraph (d) on

the same page. May I hand Your Honours copies of

the relevant part of it.

Your Honours will see that chapter 3 is

dealing with the need for codification of the

criminal responsibility principles but it refers in

paragraph 3.2 to an aspect which I just mentioned,

then in paragraph 3.3 to section 4 of the

Crimes Act and, as Your Honours will then see, in

paragraph 3.4 to the fact that:

Section 4 of the Crimes Act applies only to offences against that Act.

And that in respect of other offences one needs to

go to section 79 and 80 of the Judiciary Act and

they are, of course, there set out. The view is

expressed at the bottom of page 10 that the result

is that:

a court exercising federal jurisdiction in a

criminal case arising under a Commonwealth

Nationwide(2) 140 4/12/91

statute other than the Crimes Act must

determine any question of criminal

responsibility in accordance with the law of

the State or Territory in which jurisdiction

is exercised -

and, Your Honours, the undesirability of that is discussed in further paragraphs and the proposal for codification of it.

So that, if I could speak generally for the

moment, it is not surprising, in our submission -

or perhaps I should say, the two cases Your Honours

will see referred to at page 4 of the outline of

submissions in paragraph (d) reflect what is set

out in the committee's report - that in a case of a

particular offence, which is not one provided for

by the Crimes Act, that one has to look to the

general law to see the principles which are

applicable to it.

Your Honours, in doing that, there are two

features which should be mentioned. The first is

that some offences are of relatively frequent

occurrence, others occur relatively rarely. But

the fact that an offence is of relatively rare

occurrence may make the task of identifying the

common law principles applicable to it more

difficult, because the materials will probably be

fewer in number, but it does not mean that the task

is not to be performed.

The second feature, Your Honours, is that the statutory offence which is created may not exactly

replicate a common law offence. Accordingly, it is

necessary to identify the principles applicable by

analogy, as it were, to other offences. When one

comes to do that, in relation to a case such as the

present, one is assisted by two things: the first

is that the nature of the offence is very similar

indeed to the established species of contempt of

scandalizing a court and, Your Honours, the

similarity is obvious when one looks at the

decisions and considerations to which reference is

made in that outline of submissions. May I give

Your Honours simply the references to particular

paragraphs of it without going to them in details:

they are paragraphs 4, 5, 7(a), 7(e), 8, 9 and 12.

Your Honours, in relation to the similarity

between the common law concept of scandalizing a

court and the offence in question here, could I

take Your Honours to one reference, Reg v Gray,

(1900) 2 QB 36. In the decision of the Divisional

Court of the Queens Bench Division, it was composed

of Lord Russell of Killowen and Justices Grantham

Nationwide(2) 141 4/12/91

and Phillimore, the Lord Chief Justice, at page 40,

said, about a third of the way down the page:

Any act done or writing published calculated

to bring a Court or a judge of the Court into

contempt, or to lower his authority, is a

contempt of Court.

If I could pass over the next two sentences and

then to the sentence at the middle of the page - The former class -

that is the one to which I just referred -

belongs to the category which

Lord Hardwicke LC characterised as

"scandalising a Court or a judge."

Now, Your Honours, that is the first feature.

The second feature is this, that if one looks at

the particular, that is, section 299, one is led

historically in the particular case to

considerations akin to those of scandalizing the

Court.

McHUGH J: But what about the contrast between paragraph (c)

and paragraph (d)? Paragraph (c) makes it plain

that it must be an offence while he is "exercising

powers, or performing functions, as a member".

Paragraph (d) leaves it at large.

MR JACKSON:  Your Honour, it is true to say that

paragraph (d) does not use a similar expression,

but it is a question of construction of the meaning

of it. Your Honour, what we would submit in that

regard is that if one takes the two aspects of

(d)(ii), first of all "a member of the Commission",

and secondly "the Commission into disrepute", it

would, in so far as the commission as an entity, if

I could use that expression, is concerned, almost

inevitably, one would think, contemplate the

commission as commission. And one would think also

that the expression "bring a member of the

Commission", speaking in a similar context, that

is, a member of the commission, as a member of the

commission, into disrepute.

Your Honour, I do not know if I can advance it

beyond that, but the whole of the earlier parts of

section 299 contemplates -

a member of the Commission in the exercise of

powers, or the performance of functions, as a

member -

Nationwide(2) 142 4/12/91

and that is no doubt expressed that way because if

one looks, for example, at section 299(l)(c) it is

intended to draw a distinction between insulting a

member of the commission in its capacity as such on

the one hand, and insulting a member of the

commission in relation to a neighbour's dispute

over a fence on the other.

Now, Your Honours, when one comes to

paragraph (d) a similar approach should be adopted,

we would submit, because one would not think that

Parliament would be likely to be dealing with the

situation of simply saying something about a member

of the commission which had no bearing upon the

member's office as such.

TOOHEY J:  Mr Jackson, I am just having some difficulty with the present argument. I am not clear as to whether

you are using the provisions of the Judiciary Act

which, in turn, pick up State law, whether it is

codified or common law, as throwing light upon the

proper construction of the section or as

independently offering some sort of defence to a

prosecution under the section.

MR JACKSON:  Your Honour, I am doing both, in a sense, but

may I seek to indicate that a bit more precisely.

Section 299(l)(d)(ii) is a provision which, in our

submission, cannot be looked at in isolation. When

I say "in isolation", Your Honour, what I mean is

this: in proceedings in which

section 299(l)(d)(ii) is relied upon one has to

bear in mind that sections 79 and 80 of the

Judiciary Act have an effect, so if one is looking

to see what is the operation of the provision in a

particular case and what activities are proscribed
by it, then one is entitled to say, "Well, it is

not a provision that prevents there being any

defence to it because the application of defences

is picked out by the operation of, for example,

section 80".

So it does have two effects: one is it is, I

suppose, an independent argument in the sense of

saying that there are defences available to it;

precisely what they are may depend on the place

where the charge is brought.

The second thing is, though, that it affects

the operation overall of the provision because, as a matter of federal law picked up by the operation

of, say, section 80, one has other provisions in

relation to which it is to be found.

TOOHEY J: But if the meaning of the section were clear,

what scope would there be for drawing in the

provisions of State laws?

Nationwide(2) 143 4/12/91

MR JACKSON:  Your Honour, that depends a little on the terms

of sections 79 and 80. What I mean by that is that no doubt particular provisions of Commonwealth laws

can exclude the operation of provisions which

otherwise might be picked up, and the terms of the

two provisions contemplate that that would be so.

So, no doubt the specific is given preference but,

Your Honour, in deciding whether the specific

excludes the non-specific, if I can put it that

way, one has to bear in mind the context in which

the specific provision occurrs, that is, in a
context of federal law which, by the operation of

these provisions, picks up State laws.

BRENNAN J:	Mr Jackson, after that sentence which contains the words that you have quoted on page 40 of Reg v
Gray, there comes the words, half-way down the
page:

That description ..... is to be taken subject to

one and an important qualification.

And then it goes on to deal with reasonable

criticism and the like. Where does one find the

qualification in the statute?

MR JACKSON:  Your Honour, one is looking to see what is

meant, for example, by the term "calculated to

bring a court into disrepute".	Now, Your Honour,
if I could deal with that first.	The word

"calculated", we would accept, and indeed suggest,

refers to "likely". Likelihood of there being a
result of disrepute comes about from two things:

one, the subject-matter of the inference, if I can

put it that way, or the statement; and two, the

degree and extent of publication, the manner and

extent of publication.

As to the former of those things, one has to

look at the content; as to the latter, one has to
look at the circumstances.	By that I mean that if

one were to make a statement at the door of the

Court expressing dissatisfaction with a decision of

the Court and the only person there was one's own

solicitor, it perhaps would not matter very much.

It may not amount to a statement falling within a

provision. On the other hand, if one did it in circumstances where one was a public figure and

there was likely to be a significant publication,

it may have a different effect.

Your Honour, that is the first thing. It

comes into what is meant by "calculated to bring a

court into disrepute".

Nationwide(2) 144 4/12/91

TOOHEY J:  Does that mean that if Queensland took a

particular view of what "disrepute" meant, and

Western Australia took a different view, on your

argument the operation of the statute might vary

from State to State? I am trying to isolate

defences for a moment, but just to look at the

substance of the section.

MR JACKSON:	No, it does not, Your Honour.
TOOHEY J:	Why not?

MR JACKSON: Well, it does not because the first thing one

would look at would be to see what the content of

the Commonwealth law was. Now, that is something that one can sufficiently - there may be a matter

of interpretation involved, but can sufficiently

identify from the statute. Beyond that, if one is

looking at other matters one has to, to some extent

at least, use sections 79 and 80.

DEANE J: But it would mean that you could have different

substantive defences, which is fraught with

constitutional difficulties.

MR JACKSON:  Your Honour, not really, with respect. I

suspect I might have argued a bit of the other side

of this in Leeth's case, but what is contemplated,

no doubt, is that some Commonwealth laws may have a

differential application. It is a question of the

nature of them.

BRENNAN J: This is a great novelty, is it not, this notion

that somehow one takes out of a code in one State

and out of the Crimes Act in another and out of the

common law in a third "defences" to Commonwealth

crimes.

MR JACKSON:. Not really, Your Honour.

BRENNAN J:  Does that mean, for example, that the mens rea

that is attached to a Commonwealth offence changes

from State to State?

MR JACKSON:  Your Honour, it is possible in some cases but,

if I could put it this way, generally speaking the

common law would apply. Your Honour may recall the

case involving section 229 of the Customs Act in

which there was a question of the degree of

knowledge required of the contents of the bag in

effect was decided

I have just forgotten the name of it,

Your Honour, but that was a case where the Court

imported the common law requirement. Your Honour,

one asks: where did that come from? What the

Court did not need to deal with in that case was

Nationwide(2) 145 4/12/91

the question whether there might have been any

difference which applied if one were talking about

a situation where the common law differed from

State to State. Your Honour, of course there is no

common law in some States in relation to this.

BRENNAN J: But there is. There is always a common law of

the Commonwealth crime, and that was extensively

dealt with in He Kaw Teh, to which Mr Weinberg

referred.	I just do not understand the concept,
Mr Jackson.

MR JACKSON:  Your Honour, could I just say this. If one is

looking to see where the defences come from, of

course they have to come from somewhere. They can

possibly come from two sources. One is that they

can come by the application of sections 79 and 80;

the other is that they can come from what

Your Honour described as the common law of the

Commonwealth.

If one is looking to the common law of the

Commonwealth, it could as equally, in a case such

as the present, come as it could in a case such as

the one under the Customs Act. So it becomes then

a question of seeking to identify what it is.

Your Honour, what I was saying was that one way of

going about it was to look to sections 79 and 80.

Your Honours, be that wrong, one still can

look to see what the common law is, the common law of the Commonwealth, as Your Honour has described,

and in doing that, one sees that notions of this

kind certainly, in our submission, are not

excluded. Your Honours, what I was dealing - - -

BRENNAN J: What notions of what kind are not excluded?

MR JACKSON:	Notions of the kind that there may be defences such as fair comment.
McHUGH J: But why? Fair comment may be a defence, but it

does not mean that the court or the commission is

not brought into disrepute, so how do you bring in

a defence of fair comment, for example?

MR JACKSON: Well, Your Honour, because one implies that the

law is one which is implemented in the context of

there being a general law which provides for

offences of this - I am sorry, I will start again.

Because one takes the fact that one has an offence,

the nature of which is similar to offences which,

of the general nature of scandalizing the court, it

is one that has been taken over, in effect, from

the time when the conciliation and arbitration

court was a court - - -

Nationwide(2) 146 4/12/91

McHUGH J:  I have real difficulty with this, Mr Jackson, for

this reason. It is one thing to say that

principles of criminal responsibility apply such as

mens rea, duress, necessity, honest and reasonable
mistake, compulsion and so on, but there is no
general principle of responsibility for fair

comment, or for that matter, truth.

MR JACKSON:  No. Your Honour, I accept that.

McHUGH J:  It may apply to some particular offence, but here

you have a statutory provision where you just

cannot see any sign of a defence of fair comment,

unless it is there in the words.

MR JACKSON: Well, Your Honour, the distinction that

Your Honour draws between a general principle of

criminal responsibility and a more limited

principle of defences to offences of a particular

kind is not, with respect, a distinction, we would

submit, that is appropriate.	May I seek to say
why.

Your Honour, if one derives from a common law

so too, we submit, does the other. It is a

question of - and the point I was seeking to make before, it does not really matter, from that point

of view, that it is not applied very often. If it

is, it may be more difficult to find.

McHUGH J: Supposing the statute, instead of using the words

it did, said, "You shall not defame a member of the

commission". You would be forced to say that that

would bring in defences of fair comment,

justification, qualified privilege and so on,

whereas it is the word "defame" itself which

creates the offence.

MR JACKSON:  Your Honour, could I say two things: the first

is that I suppose it would be possible to say that

the use of the term "defame" brought with it the

defences, brought with it the possibility of

defences; but the second thing would be that if

one looked at it from the point of view of saying,

"Well, if there is a statute that says a particular

thing is an offence but that kind of offence, for

example, criminal libel, has always been one which

would attract particular defences under the common

law, the legislature should not be taken to be

excluding the defences when all it says is that

there an offence."

McHUGH J:  The illustration I gave is not merely

hypothetical. The old Posts and Telegraphs Act

used to have a provision that you should not send

Nationwide(2) 147 4/12/91

anything through the mail that defamed somebody.

The question arose whether the defences were open.

MR JACKSON:  Your Honour, it may, in a sense, involve a

question of drafting. If one were to say, under a

Commonwealth law, that a particular event was an

offence as being a criminal libel then that by

itself, in our submission, would attract the

defences that would ordinarily be available under

the general law. But it would be equally possible for the Parliament to take it a stage further and, for example, to exclude or qualify one of those

defences. If it did that, it would be obvious, one

would think, that the intention was not to exclude
the others. But where an offence is created one

should not rush, in our submission, to think that

the mere existence of the offence is intended to

exclude the possible defences, uncommon though they

may be.

Your Honours, could I just say one other thing

in relation to this topic and it is this, that if

one is looking for what are the possible approaches

to be taken, then one should look to see what is

the position under analogous things such as

scandalizing the court because, as I submitted a

moment ago, rightly or wrongly constitutionally,

the commission was a court at the time when the

predecessor to section 299(1)(d)(ii) came into

being and, Your Honour, that may be seen in Bell v

Stewart, (1920) 28 CLR 419, at page 424.

Your Honours, true it is that the commission

is not now a court but as the discussion in the

Ranger Uranium case, to which I referred yesterday shows, the approach to be taken by the commission

has considerable similarities. And if one looks to

divine the legislative intent, we would submit that

one would think that the legislature intended to continue to apply a notion like scandalizing the court to the commission after the reorganizations

which were effected in consequence of the

Boilermakers case.

Your Honours, may I refer also, without going

to them now, to what is set out in paragraphs 8 and

9 of those submissions which give the various

passages which discuss the principles in that class

of case.

Could I turn then to the second preliminary,

as it were, matter, with which I wish to deal, and

it is this: Your Honours, in answer to a question

concerning legislative power, yesterday, I said -

it is at page 124 and 125 of the transcript of the

hearing yesterday - there was power to prohibit the

disclosure of, for example, the fact that a member

Nationwide(2) 148 4/12/91

of the commission had taken a bribe and,

Your Honours, I may have created the impression

that I was saying that the Parliament could

legislate to prevent a disclosure at all, to anyone

and forever.

Your Honours, could I say that our submission

is this, that we would accept there are some limits to the power under section Sl(xxxv) to legislate to protect the commission from criticism. It is not

sufficient that the law merely protects the

commission but the protection must be incidental to

the exercise of the power. It must be reasonably

necessary to enable the commission to discharge its

functions effectively and whilst

section 299(l)(d)(ii), on the construction for

which we would contend at least, meets that

description, an absolute ban on criticism of the

commission would not and an absolute and perpetual

ban on criticism would not.

Your Honours, that does not mean that a

limited ban on true and fair criticism of the

commission would be, necessarily invalid and,

Your Honours, one would need to examine a

particular statutory regime. Now, Your Honours, if

one talks, for example, about whistle blowers,

sometimes all that emerges is hot air and it may be

appropriate, in some cases, for example, to have a

prohibition upon the public airing of criticism

unless it has first been channelled in a particular

way. And, Your Honours, for example, a ban on

criticism during consideration of a complaint by a

minister, or until after examination by an

independent commission on corruption or something

along those lines, might well be within power.

Now, Your Honours, that analysis, we would submit,

is consistent with O'Toole v Charles David, 171 CLR

in the passage at page 290 to which I referred

yesterday.

Now, Your Honour, it may also be, although it

is unnecessary in this case to decide, that there

are some other limitations on the power under

section Sl(xxxv) that derive from the structure of

the Constitution. Your Honours, what I mean by

that is the existence of Chapter III, and in

particular section 7S(v), might prevent the

Parliament legislating to prohibit a person

approaching the court for relief from an ultra

vires act of the commission which may be in some
way related to the present topic. But even in

relation to approaching the court, it is open, we

would submit, to the Parliament to impose

limitation periods and prescribe matters of

procedure.

Nationwide(2) 149 4/12/91

Your Honours, another limitation might derive

from Chapter I because section 7 provides for the

democratic election of senators; similarly

section 24 provides for the election of members of

the house. Section 41 gives persons who have a

right to vote in State elections a right to vote in

Commonwealth elections, and section 125 provides

for the establishment of a seat of government.

Now, Your Honours, it may be that one can imply

into that structure or from that structure an

entitlement for electors freely to approach their

representatives. Your Honours, if I could say two

more things about it: one is that even that

ability could be circumscribed by the power of the

Parliament to define its privileges under

section 49.

Your Honours, I should also perhaps mention in

relation to that, that there is of course a

principle under the general law relating to the
privileges of Parliament and, Your Honours, there

is a summary of it in an argument - if I could put it that way for the moment - of Lord Gardner, when

counsel, in Rivlin v Bilainkin, (1953) 1 QB 485,

at 487. It was not necessary for the court to deal

with the question and, Your Honour, I have only
just seen it, but may I give Your Honours the base
materials in a rather better form at a later point

in relation to that question?

Your Honours, could I go back then to the

submissions I was making yesterday about

section 92. Your Honours, if I could return to the

intercourse which occurs as part of trade and

commerce, our submission is that the Cole

v Whitfield test should be applied to that

intercourse. Your Honours, that is a recent

decision of the Court in which all the then members
of the Court agreed and have subsequently been
applied. But it represented a resolution of

earlier strands regarded as being unsatisfactory,

and there is no doubt, of course, that in the

course of that case the Court recognized that trade

and commerce in section 92 might relevantly

comprehend intercourse.

Could I refer Your Honours to 165 CLR at

page 393 and Your Honours will see in the paragraph

commencing about the middle of the page the

discussion of the use in section 92 of the terms

"intercourse" and "absolutely free", and then about

eight lines down that paragraph:

Ifs 92 were to be viewed in isolation from

its history, the attachment of the guarantee

to trade and commerce along with intercourse

might suggest that interstate trade and

Nationwide(2) 150 4/12/91

commerce must also be left without any

restriction or even regulatory burden or

hindrance. That is not to suggest that every

form of intercourse must be left without any

restriction or regulation in order to satisfy

the guarantee of freedom.

Then may I refer Your Honours to the remainder of

that paragraph, and in particular, for example, to

the reference to the inability to restrict personal

movement; but on the other hand the ability to

restrict a pedestrian's use of the highway.

So, Your Honours, our first submission is that

in so far as one is dealing with intercourse which

occurs as part of trade and commerce, the test to

be applied to that is the Cole v Whitfield test.

Your Honours, that means, of course, that the area

not covered by the Cole v Whitfield test will be

relatively limited. That is inevitable, however,

because most intercourse takes place in commercial

circumstances or by the use of commercial means.

Your Honours, could I give an instance in that

regard. If one takes really the simplest case,

that of the aircraft or ship or bus travelling

interstate, and if one simplifies it by making it a

case of passengers only, the passengers will

ordinarily go for a variety of purposes, some for

reasons not involving interstate trade or commerce;

some for purposes which involve both interstate

trade and commerce and other reasons, and some for

purposes which do not involve interstate trade or

commerce at all. But the person transporting them,

except in the unusual case of a private vehicle or

vessel taking them gratuitously, will ordinarily be

involved in trade or commerce.

DEANE J: But do you not really have to start with the

distinction between two kinds of law that infringe

against section 92?	I mean, if you have a law such
as the Cole v Whitfield type of law, you then have

to see how it applies to the particular

circumstances of an interstate trader, and you

would normally end up saying whether it does or does not apply to him in relation to his trade.

But if you have a law which says no one will engage

in interstate trade you do not go through that

procedure. You simply look at the position of the

plaintiff to see if he has standing to challenge

the law. Now, here, suppose that instead of

section 299 you had a law which said no one will

criticize any member of the industrial court or

commission, there your first question would be, "Do

we have to go into the second stage or, looking at

this as a law and operating as a law, does it of

Nationwide(2) 151 4/12/91

its very nature infringe against the guarantee of

freedom of intercourse in section 92?"

Having said all that, it seems to me that that

is a relevant opening question in this case, that

is, if section 299(l)(d) goes as far as on one

construction of it it is argued to go, is that

simply inconsistent as a law with the guarantee of

freedom of intercourse in section 92?

MR JACKSON: Well, Your Honour, if one took a law that said

just that, "no one may criticize", then one does

need to examine it in a little more - - -

DEANE J: Let me give you an easier example, "No one will

converse with anyone else".

MR JACKSON:  Your Honour, perhaps I could just ask,

simpliciter or - - -

DEANE J: Simpliciter, and presume there is a head of power

that it can be related to, say defence power.

MR JACKSON:  Your Honour, in a case like that the first

question to ask would be, was there some

relationship between that and the power, and I

assume that what Your Honour puts to me involves

some relationship.

DEANE J:	I am asking you to assume legislative power.
MR JACKSON:	Having done that, one comes then to the

application of section 92 to it. Now, Your Honour,

section 92, of course, speaks only of interstate

transactions, to put it loosely, and in relation to

those interstate transactions it undoubtedly

permits there to be interstate communication.	Now,
it may well be that the Act would be pro tanto

invalid to the extent to which it did not permit

interstate communication but, Your Honour, that is

the point at which I suspect Your Honour and I

might part company, and that is that it would

depend on the nature of the communication. If one

is talking about communications which do not occur

in trade and commerce, then the result would seem

to be, on that assumption, that the Act would be

one which is invalid, subject to a question of

discriminatory things to which I will come in a

moment.

Subject to that, however, if the communication were one which occurred in trade or commerce, then

the Cole v Whitfield test is one which would apply

to it, in our submission.

DEANE J: But, you see, that is why I raised it. I can

fully understand your argument if the law was a law

Nationwide(2) 152 4/12/91

relating to trade and commerce which, by its

operation, affected conversing in trade and

commerce, but the example I gave you has nothing to

do with trade and commerce. It is a law dealing

with intercourse. Now, in relation to such a law

the query arises, "Can you really try and save the

validity of such a law by saying that it will apply
to trade and commerce and therefore, even though

the law was not concerned with trade and commerce,

we will save it insofar as something that was not

aimed at is concerned?"

MR JACKSON: First of all, Your Honour, it is a general law.

Secondly, questions about it do not, with respect,

arise in the abstract, and one is talking about a

situation where the law has a particular operation.

Now, presumably one looks to the effect of the

operation of the law, and the effect of the
operation of the law will be that it has

application over a variety of situations. Some of

the situations will be situations which occur in

what is first, trade; secondly, perhaps commerce;

thirdly, intercourse. Each of those

characterizations may have a second aspect to it,

the second aspect being that it is interstate.

Your Honour, there may be other ones of

course, State, territorial and international, but
if one takes the ones that occur either within the

States or as interstate transactions, the

protection that is given by section 92 is one that

first, we would submit, is to be looked at as a

matter of substance rather than as a matter of

looking at - Your Honour, I hope I may be forgiven

for using the term - the criterion of operation of

the statute.	One looks at the way the statute
operates.

Looking at the way the statute operates, it

will affect some or all of those aspects.

Your Honour, at best, one gets out of that that

something is protected by section 92. What is the

something? The something is trade, commerce and

intercourse. So at the widest view, the

communication that occurs is a communication which

occurs, let us say, as part of intercourse.

The communication, Your Honour, may also be one that occurs as part of trade and commerce. It

is possible of course to say each of the words in

section 92 is to be given equal weight. There is

no particular reason, one might say, why there

should be a dominance of the trade and commerce

part of it over the intercourse part. Equally, one

might say there is no particular reason why there

is to be a dominance of the intercourse part over

the trade and commerce.

Nationwide(2) 153 4/12/91

It becomes a question of seeking to resolve the difficulties that occur. In doing that, one

needs to find a method of resolution. It is

possible, Your Honours, to have a number of ways of

resolving it but, in the end, if one gets to a

situation where the communication is one that is in

interstate trade or commerce, then our first

submission is that that is the test which should be

applied. I do not know that I can take it beyond

that, with respect.

BRENNAN J:  Mr Jackson, I am not sure whether that argument

either affirms or denies the proposition that

section 92, in respect of intercourse, confers a

personal right.

MR JACKSON:  Your Honour, I do not think it does either,

with respect. What I mean to convey by that is

that whether one looks at it from the point of the legislatures imposing restrictions on the ability,

if I could use a neutral term, to engage in

interstate intercourse, or whether one looks at it
from the point of view of the persons who might

utilize the ability or have the ability if they

chose to utilize it, perhaps does not matter very

much because if it is a restriction on legislative

and perhaps executive power, then to call it a

right is simply to say that a person has an

entitlement to have the immunity enforced, and

perhaps vice versa. To say it is an individual

right perhaps is merely a matter of classification

and brevity of description rather than to identify

the substance of it, with respect.

Your Honours, I think I was about to board an

aircraft or something of that nature, but could I

just say this. The passengers on such a vehicle or

vessel go for a variety of purposes of course,

which may be mixed or may not.

Your Honours, the transporter is engaged in trade or commerce and it would seem odd,

Your Honours, if the laws operating on the

transporter's operations had an ambulatory validity

depending on the purposes, sometimes mixed, of

course, that were germane to the passengers or to

the majority of them. And it would seem odd if,

for example, the laws that were applicable to a bus operator depended upon whether the bus operator was taking a football team and its supporters across

the border or taking a group of business people.

So that, Your Honours, we would submit - as I

said, this is our first submission - that unless

Cole v Whitfield is to be overruled, it should

apply to the cases where the intercourse occurs in

trade or commerce. If that is not correct, it then

Nationwide(2) 154 4/12/91

becomes necessary to work out the further approach

to be taken in such cases. And by that, I mean

cases where the intercourse occurs in trade or

commerce.

Your Honours, in that regard, our submission

would be that a cumulative test would then be the
one which is appropriate, meaning by that that a

measure would be invalid if it did not satisfy two

tests: the first test would be the Cole v

Whitfield test; the second would be the test,

whatever it may be - and I will come to that in a

moment - adopted in relation to non-commercial

intercourse.

Could I come then to what we would submit should be the test in respect of non-commercial

intercourse. The possibilities seem, broadly

speaking, to be two: one possibility - and it is

the one with which I shall deal first - involves

two elements. If I could describe them shortly as

discrimination, on the one hand, and reasonable

regulation, on the other. The second test involves

reasonable regulation simpliciter.

Your Honours, may I go to the first of those

tests, the combination of discrimination and
reasonable regulation. In that regard, may I deal

first with the concept of discrimination. Could I

say what, no doubt, is obvious, that by

discrimination - if I could use the term in a

shorthand way - we are seeking to indicate, meaning

to treat a person differently and adversely.

The discrimination may be evident or indicated

on the face of the law or by reference to its

effect. I want to add a qualification to that in

just a moment, if I may, but, for the moment, may I

put it in this way, that the discrimination may be

evident on the face of the law or by reference to

its effect.

What I will be seeking to say, by way of a

qualification to that, is that there may be cases

where a law on the face of it does discriminate but

there is not, in truth, discrimination, in effect,

and that may be particularly so in the case of

Commonwealth laws.

Your Honours, the Court referred in broad terms to that double operation of section 92 in

Cole v Whitfield, 165 CLR, at page 399, about

point 9, going to the top of the next page, and

also at page 407, about point 7. I shall not go

over those passages but may I just say that the

Court also adopted that approach again in

Nationwide(2) 155 4/12/91

Castlemaine Tooheys Limited v South Australia,

169 CLR 466.

Now, Your Honours, some views of Cole v

Whitfield, including the headnoter of the case

itself in 165 CLR 360, appear to have taken the

view - I am looking at paragraph 2 of the

headnote that a law will discriminate against

interstate trade or commerce if it satisfies one of

two criteria, the first criterion being if:

on its face it subjects that trade or commerce

to a disability or advantage -

and the second is if, though it does not do so on

its face -

the factual operation of the law produces such

a result.

Your Honours, that leaves open the

possibility, if the tests be alternatives, that a

law which is not discriminatory in effect will yet

be invalid if it is discriminatory on its face.	we
would submit that is not what the Court intended
but, in any event, we would submit, it should not
be applied to laws of the Commonwealth because a
Commonwealth law may in terms be directed only to
interstate events or occurrences but its purpose
might simply be to equalize the terms on which
States were otherwise conducting their affairs. If one saw that a Commonwealth law was

introduced in such a way that the result was there

was a uniform tobacco tax rather than one which

varied from State to State, then although the

Commonwealth law might be a law which in terms was

discriminatory against interstate trade, the result

might be simply to equalize trade throughout
Australia.

But, Your Honours, could I come to the factors

which are material on the question whether the

discrimination, the requirement for discrimination,

should form part of the test. The summary of the

aspects on which we would rely, which I will now

seek to develop, Your Honours will find in our

outline of submissions at paragraph 7, page 5.

The first, Your Honours, concerns the textual

difficulty - not insuperable, of course - of giving

a different operation to different parts of the one

section. The terms "trade", "commerce" and

"intercourse" do all appear in the same context.

They are all prefaced by the same words, that is,

"on the imposition of uniform duties of customs".

They are all qualified by the same phrase, "among

Nationwide(2) 156 4/12/91

the States", and they are also qualified by the two

other major parts of the paragraph, namely, first,

"whether by means of internal carriage or ocean

navigation" and, secondly, "shall be absolutely

free".

we recognize, of course, that in theory, at least, the words "other than trade, commerce and

intercourse" in section 92 have their meaning

governed by the content of the three concepts,
"trade", "commerce" and "intercourse", and so it is

possible that the three concepts might be entirely

different. But it is, I say with respect, a little

less likely.

What is also the less likely view, we would

submit, is that when one looks at section 92 in the

context in which it appears - I am sorry,

Your Honours, I will start that again. What is

also less likely, we would submit, is that when one

looks at section 92 in the context in which it

appears, it is less likely that it is dealing with

a topic unrelated to discrimination.

Your Honours, may I move then to the second

aspect, the pre-federation history. May I simply

say that in that regard I propose to adopt what is

to be said on behalf of South Australia.

Your Honours, the third aspect, the lack of

any evident federal purpose to be served by placing

interstate intercourse in a special category, is this: one feature which is clear in relation to

section 92 is that it does not in terms apply to all trade, commerce and intercourse, but only to

those conceptions among the States. Your Honours,

that distinction is one which the Court has from

time to time insisted be recognized. Could I give

Your Honours some references in that regard:

first, to Wragg v New South Wales,

(1953) 88 CLR 353. The need to maintain the

distinction is referred to in the judgment of

Chief Justice Dixon, with whose reasons for

judgment Justices McTiernan and Williams, Fullagar

and Kitto agreed, at the bottom of page 385 where

His Honour said:

The distinction which is drawn between

upon the Parliament bys 51(i) •.... may well be considered artificial and unsuitable to modern

inter-State trade and the domestic trade of a

times. But it is a distinction adopted by the

Constitution and it must be observed however

much inter-dependence may now exist between

the two divisions of trade and commerce which

the Constitution thus distinguishes.

Nationwide(2) 157 4/12/91

And Your Honours will see the remainder of the paragraph and the particular reference to

section 92 in it.

Your Honours, the same notion was referred to

by Justice Kitto in Airlines of New South Wales Pty

Ltd v The State of New South Wales (No 2),

(1965) 113 CLR 54, at page 115, and in the first

new paragraph on the page Your Honours will see

particularly the second sentence:

This Court is entrusted with the preservation

of constitutional distinctions -

and an observation to the same effect may be seen

in the reasons for judgment of Justice Gibbs in

Attorney-General (WA) v Australian National

Airlines Commission, (1976) 138 CLR 492, at

page 502 about point 7 going through to the top of

the next page. It is the last paragraph on

page 502, and at the top of the next page there is

the quotation from Justice Kitto.

Your Honours, of course sections 5l(i) and 92

contain within themselves the distinction between

interstate and intrastate matters, but that is also

to be seen, for example, in section 5l(xxxv)

itself, and if I could also refer Your Honours to

the fact that in a rather similar connection the

need to maintain the distinction between interstate

and intrastate matters may be seen by the fact that

an interstate industrial dispute is not created

merely by a series of local disputes, each confined

to a single State. Could I in that regard give

Your Honours a reference to Reg v Turbet; Ex parte

Australian Building Construction Employees and

Building Labourers' Federation, (1980) 144 CLR 335,

and at page 348 in the paragraph commencing towards

the bottom of the page Your Honour the

Chief Justice said:

It is of course essential to distinguish

between a single dispute extending beyond the

limits of a single State and a series of local

disputes each confined to a single State -

and Your Honour elaborated upon that proposition in

the remainder of that paragraph.

Your Honours, I am conscious, of course, that section Sl(xxxv) does not use exactly the same

terms as section 92 or section Sl(i), but the point

which I am seeking to make is simply perhaps the

obvious one, that section 92 involves a distinction

being drawn by the Constitution, and it is one, of

course, which has to be followed.

Nationwide(2) 158 4/12/91

Now, Your Honours, the adoption of a test

which treats section 92 as applying to laws which

are discriminatory in the sense to which I referred

earlier reflects, in our submission, the

distinction drawn by section 92. One also has the

analogy of the observations made in the reasons for judgment of the Court in Cole v Whitfield, 165 CLR,

at page 402, that the effect of the earlier

decisions on the trade and commerce parts of

section 92 had been to elevate interstate trade and

commerce to too high a level. Could I take

Your Honours to page 402 of 165 CLR, about point 8,

where, speaking of reasons for rejecting the
criterion of operation approach, the Court said:

First, 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 -

et cetera. As Your Honour Justice Deane had said

in Miller v TCN, (1986) 161 CLR 556, at page 618,

about half-way down the page:

The importance of the notion of "freedom as at

of s.92 has been progressively discounted and disregarded. In the result, interstate trade,

the frontier" which was recognized even in

commerce and intercourse has been placed in a

position of significant and preferential

immunity from non-discriminatory laws which

the courts have, for reasons which still await

currently authoritative identification, judged
to be inconsistent with s.92.

Your Honours, could I also, in relation to the

question of the adoption of a test which involves a
requirement for the law to have a discriminatory

effect, refer Your Honours to some other provisions	of the Constitution which seem to embody notions of
preference and discrimination. What I mean to
convey by that is that if one looks at some other
provisions of the Constitution one can see that the matters dealt with by it are ones where it is
sought to prevent there being discrimination
against matters, if I can put it loosely, because of the fact that they come from another State.

Your Honours, could I refer in that regard to

the several references in chapter IV to there being

uniform duties of customs. Could I refer also to

section 99, the prohibition on giving preference by

laws under section 51(i) or 51(ii) to a State or

part of it; to section 104 where there is a

Nationwide(2) 159 4/12/91

reference to there being equal rates so far as

seems to allow inspection laws of a State to be the subject of charges made by the State, but it requires that any profit, as it were, be for the

goods within the State and goods passing into the impliedly

use of the Commonwealth and inspection laws may be

annulled by the Parliament of the Commonwealth. Your Honours, by removing the right to retain

the surplus, as it were, it removes from the States
the incentive to inflate inspection charges and

discriminate against goods from interstate.

Your Honours, section 113 also provides that liquor

coming into a State is to be treated as if it had
been produced in the State, that is, it is to be
treated in a non-discriminatory fashion.

Your Honours, importantly, section 117 is the provision which says that one must be treated

without discrimination once one is in a State. All

those features, in our submission, militate in

favour of section 92, being concerned with

invalidating, to put it shortly, discrimination.

Your Honours, could I go on to the next aspect

which we would urge in support of that proposition,

and that is that there are some difficulties in

endeavouring to fashion an acceptable alternative.	$
It is possible of course to say the test is simply
reasonable regulation, but that, in our submission, does not get to the substance of the matter.

The difficulties appear perhaps particularly

with Commonwealth laws, because many of the

legislative powers in section 51 are intended to be

used, one would think, in circumstances where they

are to have an operation which is entirely

independent of any notion of interstate movement or

communications, and indeed one would think the

purpose of some of the powers is to achieve

nationwide universal laws.

Your Honours, in that regard could I, without

seeking to deal exhaustively with section 51,

refer, for example, to section 5l(v), Postal,

Telegraphic, Telephonic and Other Like Services,

section 5l(vi), Defence, 5l(ix), Quarantine,

51(xii), Currency, Coinage and Legal Tender,

51(xv), Weights and Measures, 51(xviii),

Copyrights, Patents and Trademarks, 5l(xxiii),

Invalid and Old Age Pensions, and 51(xxxv).

Your Honours, that is not an exhaustive list.

Your Honours, so far as section 51 is

concerned, as I was submitting a moment ago, one

would think that one of the purposes of section 51

Nationwide(2) 160 4/12/91

is to have laws which operate uniformly and to

operate nationally. They do not have to in every

case, no doubt, but to have laws that are not,
except in cases where the particular provision says
so, dependent for their operation on whether the

events to which they apply occur in relation to

intrastate or interstate transactions.

Your Honours, of course section 51 is prefaced

by the requirement that it be read subject to the

Constitution. Now one does have to read the

Constitution as a whole. That fact, we would

submit, suggests that section 92 is a provision

which is related to the invalidation of

discrimination as distinct from the invalidation of

laws which have a universal operation.

Now, Your Honours, could I also say that one

of the purposes which underlay, for example, the
establishment of the Federal Council of Australia

was for there to be laws which operated,

universally, in respect of transactions that might

or might not occur within or without the various

colonies. Could I give Your Honours a reference to

Quick and Garran, in that regard, at pages 111 and

112, and perhaps I could simply give Your Honours

the pages. I did not intend to refer,

particularly, to it but it is the passage in Quick

and Garran which deals with the establishment of

the Federal Council of Australia, the subjects with

which it was empowered to deal.

Now, Your Honours, the next thing I wanted to

say in this regard was that I have so far referred

to laws which have a uniform nationwide operation,

but it is not essential and it was not essential,

in our submission, that Parliament should legislate

immediately for the nation on every topic and, for

example, the Parliament may have been content,

initially, to legislate in relation to, say, bills

of exchange only for the interstate aspects of the

topic leaving State laws in force. Now, such a law

would be a law which, whilst it would deal only
with interstate trade, would be one which, subject

to the State laws, in one sense, would not be

discriminatory, one would expect. So that so far

as the Commonwealth is concerned, Your Honours, one

does have an operation or likely operation of

legislative power which may turn upon or may result

in uniform laws or laws which apply only, for

example, to interstate aspects of it. Now,

Your Honours, the discrimination, we would submit,

is the test but in the end that means whether the

Commonwealth law is, in effect, discriminatory.

Now, Your Honours, I should also perhaps add

that the only two cases which deal, specifically,

Nationwide(2) 161 4/12/91

with intercourse are cases which involve laws which
were discriminatory. That appears from R
v Smithers; Ex parte Benson, (1912) 16 CLR 99, and

also, Your Honours, Gratwick v Johnson, (1945)

70 CLR 1, and may I take Your Honours to that case.

Your Honours will see in the judgment of

Chief Justice Latham at page 12, the passage

commencing about point 8 going through to the top

of page 13, where the order is referred to and

about the last six or seven lines on page 12:

The Order explicitly makes transit and access

for persons between the States dependent upon

obtaining official permission, and therefore

imposes a barrier to such transit and access,

as distinguished from other travelling,

because, and only because, it is inter-State.

Now, Your Honours, to the same effect, at page 14

at the bottom of the page going to the top of

page 15, he referred to the fact that it was:

"directed against" -

interstate "intercourse" and at page 17 point 1 to

17 point 8 per Justice Starke.

Your Honours, at page 19, about point 8,

Justice Dixon, in a passage which starts there and

goes to page 20, about point 4, refers

specifically, at the bottom of page 19, to the fact

that the prohibition was:

simply based on the "inter-Stateness" of the

journeys -

and then, on page 20, at the middle of the page,

going over to the top of the next page. And,
finally, at page 21, about point 8, going to the

bottom of the page.

If I could move on then to the second aspect of the test which we would submit is appropriate, that is that the measure to be invalid should not be a reasonable regulation of the interstate

intercourse. And as the facts of Miller v TCN

Channel 9 illustrate, there are many circumstances

in which the exercise of the freedom of

communication or movement must be regulated in

order to permit exercise of the freedom by those

who are entitled to it.

Your Honours, the nature of the regulation

which is permissible, must depend, in the case of

Commonwealth legislation, at least, on a number of

factors including the nature of the legislative

Nationwide(2) 162 4/12/91

power, the public interest sought to be achieved by

the measure, the extent of the burden imposed on

the interstate intercourse and the means which are

chosen.

Your Honours, may I go to a number of cases in

which the nature of reasonable regulation has been

discussed in order to seek to make out those

propositions. One feature which has been manifest

in relation to section 92 from early times is that

"absolute" cannot mean that all laws impinging in

any way on interstate trade, commerce and

intercourse are invalidated.

Could I refer Your Honours to Duncan v

Queensland, (1916) 22 CLR 556, and at page 573,

about point 2 - - -

MASON CJ: Is it necessary to read all these fairly

fundamental statements?

MR JACKSON:  No, Your Honour, I was going to refer

Your Honours to the start of it and to the end, I

hoped. Your Honours will see, at page 573, about

point 2, the initial statement and that is a
proposition which has been dealt with in a number
of cases, including Freightliners and Construction

Holding Pty Limited v New South Wales, 116 CLR 1, at pages 4 to 5; by North Eastern Dairy Company

Limited v Dairy Industry Authority of New South

Wales, 134 CLR 559, by Your Honour the

Chief Justice at pages 614 and 615 and by

Justice Jacobs at pages 620 to 621; and in

Permewan Wright Consolidated Pty Limited v

Trewhitt, 145 CLR 1, at page 27 by Justice Stephen,

and pages 34 to 38 by Your Honour the

Chief Justice. And, finally, in Cole v Whitfield,

itself, 165 CLR, at the bottom of page 393 to about

half-way down page 394.

Your Honours, what the cases demonstrate is that the concept has an ambulatory nature and there	is a need to take the public interest into account.
Could I refer in that regard to what was said by
Your Honour Justice Brennan in Mill~r v TCN Channel 9 Pty Limited, 161 CLR, at page 599 and
following.

Now, Your Honours, could I seek then to apply

those tests to section 299. We would submit that,

on any of the tests, that provision is valid

because the applicant's interstate activity - first

of all I should say the applicant's interstate

activity was interstate trade, which would make the

Cole v Whitfield test applicable and, Your Honours,

section 299(1)(d)(ii) would not be protectionist in

terms or in effect.

Nationwide(2) 163 4/12/91

If, on the other hand, the interstate activity

is treated as being intercourse, then
section 299(l)(d)(ii) is not in any way

discriminatory and, again, we would submit

section 92 does not apply, and we would also

submit, for the reasons I have given earlier, that

the provision is a reasonable regulation of the

interstate communications. So, Your Honours, if

the test be, simply, reasonable regulation, again,

we would submit the test is satisfied.

Your Honours, could I come to a further

question which arises in the light of the terms of

the stated case and, in particular, in relation to

paragraph 13 of it. Your Honours have seen from

that that the events which are to be relied on in

support of the charge relate to the events which

occurred in Sydney - that is at page 6 - and that
gives rise, Your Honours, to the second series of

questions, that is, the questions set out in

paragraph 2 on page 7, that is:

In the circumstances referred to in paragraphs

1 to 13 -

whereas the first group apply to paragraphs 1 to
12.

Now, Your Honours, The Australian was printed in Sydney; it was sold in Sydney; copies of it were

sent to other places, there to be reprinted; and a

facsimile was made, as Your Honours will see from

the case, of the paper printed in Sydney which was

sent off. Some printed copies went physically

across State borders.

Your Honours, if the applicant's contention is

correct, a transaction which took place entirely in

New South Wales and was always intended to take

place entirely in New South Wales gives the

protection of section 92 because other like

transactions were to take place in other States and

because the steps necessary to set those

transactions in train had been taken in part.

We would submit that the indications are that

the result sought to be achieved by the applicant

should not follow. The Constitution, as I have

submitted earlier, provides for a distinction

between intrastate and interstate trade, commerce

and intercourse and, Your Honours, if that

distinction is to be taken away, then it is, in a

sense, for the people to do it. Your Honours, I

have referred to the cases on that issue already.

Of course, one recognizes that a given

transaction which, taken by itself, would be

Nationwide(2) 164 4/12/91

domestic may, in a particular instance, be part of

an interstate transaction by reason of its

association as part of the larger transaction.

Your Honours, that aspect is referred to in

w & A McArthur Ltd v State of Queensland, (1920)

28 CLR 530 at 549, but the applications of that

dictum appear to be contained in two categories of

case. One is in the first sale after importation

group of cases; the other is in the continuous

journey cases that are referred to in Pilkington v

Frank Hammond Pty Limited, 131 CLR 129; and,

Your Honours, we would submit that, ordinarily

speaking, the conduct of the same business in

several States is not itself interstate trade or

commerce, even though, of course, particular

interstate transactions or communications may be.

Your Honours, could I refer in that regard to

what was said by Your Honour Justice Dawson in

Street v Queensland Bar Association, (1989)

168 CLR 461, in particular at page 539, in a

passage in the last paragraph on the page and going

over to the end of the second paragraph on

page 540. So what we would submit, Your Honours,

is that one does not have a situation where, in

relation to the printing, publication and sale of a

newspaper in New South Wales, one has any aspect of

interstate trade or commerce or intercourse
constituted by those events, nor is it constituted

by the fact that copies of the paper are facsimiled for the purpose of being reproduced in other States

and other Territories.

Could I come then, Your Honours, to the

question of severability that was raised by my

learned friends. In relation to that, the terms of

section 15A provide a statutory indication of the

course to be followed if it is possible to do so.

The view, in our submission, should be adopted that

the provisions are capable of being read down to bring them within the constitutionally supported

field of operation.

Your Honours, speaking generally, could I

refer Your Honours to the passage that Your Honours

have had reference to already in Bourke v State

Bank of New South Wales, 170 CLR 276, at pages 291

to 292, but there has not been found, if one speaks

more specifically in relation to section 92, great

difficulty in the past in the application of

provisions like section 15A to section 92 cases.

Your Honours, I have given a reference in our

outline of submissions to Matthews v Chicory

Marketing Board, 60 CLR 263, at pages 273 to 274 and 283, but may I give Your Honours some other

instances of it:  Graham v Paterson, (1950)

Nationwide(2) 165 4/12/91

81 CLR 1, Carter v Potato Marketing Board, (1951) 84 CLR 460, Wilcox Mofflin Ltd v New South Wales, (1952) 85 CLR 488 at 523, Hospital Provident Fund Pty Ltd v Victoria, 87 CLR 1 at pages 32 to 33, and

finally H.C. Sleigh Ltd v South Australia, (1977)

136 CLR 475 at pages 489, 495 to 496 and 510

to 511.

Your Honours, H.C. Sleigh Ltd is one of a

number of those cases which deal with a generally

expressed Acts Interpretation Act provision.

Perhaps I should adopt what was said by Your Honour

Justice Deane I think yesterday, that if one has to

look for the discrimen, it is provided in

section 92 itself.

Could I move then, Your Honours, to the question of an implied guarantee of freedom of

speech and deal with the topic generally first and

then to the more specific alternative relied on.

Your Honours, we would submit that the Court should not adopt the approach that there is a

constitutional guarantee of freedom of speech other

than such as may be found in section 92, and perhaps occasionally derived from some other

aspects of the Constitution.

Your Honours, in the first place, one asks,

"Where does one find the guarantee of freedom of

speech?" and one can shake out the Constitution and

there is no specific reference to it. The first

amendment to the United States Constitution had in

been in force in that country since 1791 and the
framers of the Australian Constitution were aware
of its presence, and the choice not to select it is

eloquent. It is eloquent, Your Honours, because

what was selected was part of it, but not the

whole, the part of it being the part which is

contained in section 116 in relation to the freedom

of religion.	May I perhaps hand Your Honours
copies of the first amendment and Your Honours will

see from that that the first amendment is the
provision which contains an express reference to

the inability of congress to "abridge the freedom

of speech" or specifically "of the press". It also

speaks of the fact that congress -

shall make no law respecting an establishment of religion, or prohibiting the free exercise

thereof.

Your Honours, section 116, of course, reflects that

part of the first amendment which relates to the

freedom of religion, but the remainder of it was
not picked up, if I can use that inelegant

expression, in relation to the Australian

Nationwide(2) 166 4/12/91

Constitution. Your Honours, in those circumstances

we would submit that the suggestion one would infer

is that the right was not intended to be given as a

constitutionally guaranteed right of that kind.

Now, in that regard may I refer also to some

observations of Sir Owen Dixon under the heading,
"Two Constitutions Compared", which appears in the

book "Jesting Pilate" at pages 100 to 105, but

particularly at page 102, and Your Honours will see

commencing about six lines from the top of the page

The framers of the Australian Constitution -

and it is the passage that goes to the end of the

next paragraph.

Your Honours, so far as the Court was

concerned, in Miller v TCN Channel 9 Pty Ltd,

(1986) 161 CLR 556, the Court did not accept the

view which had been advanced by Justice Murphy that

the Constitution contained an implied guarantee of

free speech.

Could I refer Your Honours to the relevant

passages, at page 569, per Justice Gibbs, about
point 6 on the page; at page 579 as per

Your Honour the Chief Justice, about point 2; at page 592, Justice Wilson, about half-way down the page; at page 615, Justice Brennan, in the first new paragraph on the page; and then, at page 636

to page 637, per Your Honour Justice Dawson, at the

first new paragraph on the page going to the end of

Your Honour's reasons for judgment.

Your Honours, it is undoubtedly true to say

that the notion that speech should be free, so that

everyone has a right to comment, at least in good

faith, on matters of public importance, including

the administration of justice, is a principle that

has been recognized as a principle in Australian

jurisprudence. One may see it referred to in

Gallagher v Durack, (1983) 152 CLR 238, at
page 243, where, in the joint judgment of

Chief Justice Gibbs and Your Honours

Justices Mason, Wilson and Brennan - it is the

paragraph commencing on the sixth line of the page

and going through to the end of that paragraph, and

the particular passage is about point 4 on the page

but it is quite apparent in the context that the

Court is speaking about the situation which would

obtain in the absence of it being affected by

legislation as distinct from referring to it as a

right that is constitutionally entrenched.

Nationwide(2) 167 4/12/91

But, Your Honours, accepting that there is a

view that speech should be free in that way, the

principle of freedom of speech is not

constitutionally conferred. There is nothing in

the Constitution conferring the right in express
terms and there is not, we would submit, a warrant

for such an implication. Rather, freedom of speech

is a product of the democracy and the extent to

which it exists depends on the extent to which what

a person says or writes is consistent with the

common law, for example in relation to contempt of

court, or with legislation, for example defamation

Acts, and the extent to which that law or

legislation is not affected by the elected
representatives of the people, in the case of the

Commonwealth Parliament being those referred to in sections 7, 24 and 41.

BRENNAN J: But the question is whether or not the

legislative power which is vested in the Parliament

or perhaps in the parliaments can be exercised so

as to destroy or substantially to impair the

character of the government which the Constitution

contemplates.

MR JACKSON: Well, Your Honour, that is true in broad terms,

with respect, but one might look at that from two

points of view. One point of view is if one looks

at it as a matter of political philosophy; the

other is if one looks at it as a matter of

constitutional law. Your Honour, there is no

doubt, of course, that as a matter of political
philosophy there are a variety of courses that can

be taken to secure the free speech, if I can put it

that way. One course is for there to be no

inhibition upon the power of the Parliament.

Your Honours, one sees that, for example, in the

United Kingdom, where there is no constitutional

inhibition on the power of the Parliament. One

sees, on the other hand, in the United States,

there being inhibitions on the power of

legislatures in the United States by virtue of the

first amendment.

Covering the spectrum between the two, one has

many possible different approaches. One sees, in

the statements in, for example, the International

Covenant on Civil and Political Rights - I will

give Your Honours a copy of that in just a moment -
that the need is recognized for there to be
provisions which secure the situation of the
institutions of government - not necessarily the

core ones, Your Honours, not necessarily only the

core ones. But, Your Honours, if one has a system

that does not involve a constitutional express

guarantee, then the content of any implied

guarantee is one that has to be identified.

Nationwide(2) 168 4/12/91

One way of dealing with it is to place

confidence - as, in our submission, the Australian

Constitution does - in the legislators who, after

all, are elected in two ways in Australia: one, by

reference to the geography from which they come -

by that I mean the Senate; and the other by

reference to the population - by that I mean the

House.

Now, Your Honour, if one had a situation where

a legislature of that kind is prepared to abolish

freedom of speech, the answer is probably

revolution. I do not mean that in the slightest

degree facetiously, Your Honour, because - - -

McHUGH J:	Or unconstitutional, is the other alternative.
MR JACKSON:	It would be a possibility, Your Honour.

McHUGH J: Supposing Parliament passed a law which said that

those standing for election could not make speeches
in support of their candidacy. Surely the

Constitution would impliedly strike down such a

law?

MR JACKSON: Well, Your Honour, it is possible that there

may be an implication to be drawn from that, but it
does not follow, Your Honour, from the fact that

one might draw a particular implication from a

particular provision that there is an overall

implication to be drawn. And, Your Honour, that is

the point I am seeking to make, in one sense, that

it may be possible if one looked at particular

provisions of the Constitution to say that - and

particularly those relating to the elected
representatives - in relation to the elected

representatives and in relation to perhaps the

steps that get them to that point, that some

implications are to be drawn about free speech.

But, at the same time, it does not follow from that

that there is to be a liberty to say whatever one

likes on any topic.

And in respect of the suggestion of a general

freedom of speech, Your Honour, one can adequately

secure it by recognizing that one has, in

Australia, a democratic form of legislature and

given, are the rights to elect the members of the

leaving the matter to the legislature.

houses to themselves to protect the rights.

Now, Your Honours, there are obvious and

necessary limitations on any notion of freedom of

speech, and the fact that there are such

limitations and the need for them, in our

submission, and the fact that they may be

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ambulatory in their need at particular times,

militates, we would submit, against the view that

there should be implied some defined constitutional

guarantee.

Now, Your Honours, limitations of course include sedition but they include also, one would

think, matters such as defamation or the

communication of defence secrets and also contempt

of court and perhaps contempt of tribunals

established by the Parliament. Your Honours, the

ambit of the freedom, we would submit, is for

legislatures to determine.

Your Honours, could I say a couple of things

in that regard. One is that if one looks at the

passage in Quick and Garran to which reference was

made by our learned friends yesterday at page 958,

there is there to be found no hint of a restraint

on federal power by any implication in the Constitution, what is being discussed is a

restraint upon State power. The second thing is

that if one goes to the passage in Burns v Ransley,

79 CLR, referred to by my learned friend yesterday

at page 110, Your Honours, one sees that the

passage referred to is towards the bottom of the

page, if one goes to the top of the page what one

sees is His Honour saying that:

The Commonwealth Parliament ..•.. has power to

make laws to protect them and itself, not only

against physical attack and interference, but
also against utterance of words intended to

excite disaffection against the Government (in

the sense stated) and to prevent or impede the
operation of governmental agencies which
prepare for defence and conduct warlike

operations -

et cetera.	Now, Your Honours, one would think it
was not seeking to set a limit on the exercise of	really quite clear, with respect, that His Honour
the legislative powers in relation to the extent to
which there could be a limitation upon speech.

Your Honours, could I go then to the

international position in two respects. May I

refer Your Honours to the provisions of the

International Covenant on Civil and Political

Rights, the relevant part of which is article 19

and also, Your Honours, to the European Convention

on Human Rights article 10 and - Your Honours, they

should be in sets of two. The relevant article in

the International Covenant on Civil and Political

Rights is article 19 which appears in the second

page of the extract, and it refers in article 19 2.

to every person having a right of:

Nationwide(2) 170 4/12/91

freedom of expression; this right shall

include freedom to seek, receive and impart

information and ideas of all kinds, regardless

of frontiers, either orally -

et cetera, but then it goes on to provide in

paragraph 3 that:

The exercise of the rights ..... carries with it

special duties and responsibilities. It may

therefore be subject to certain restriction -

and it goes on to say they have to be:

provided by law and are necessary -

and then -

(a) For respect of the rights or reputations

of others;

(b) For the protection of -

amongst other things "public order".

And, Your Honours, that recognizes that, apart from

the requirement for there to be a restriction being

provided for by law, there may be some restrictions

provided for by public order. Now, the precise

meaning of that of course is something to be

decided, in effect, from time to time and must

involve some legislative judgment about the

circumstances in which it is necessary.

The European Convention on Human Rights, in

article 10, again speaks of freedom of expression

and a right to hold opinions and receive and impart

information - although I think, Your Honours, it

excludes seeking information - and ideas about

interference by public authority. But it goes on

to say, in paragraph 2, that:

The exercise of these freedoms •••.. may be

subject to such formalities, conditions,

restrictions or penalties as are prescribed by

law and are necessary in a democratic

society -

amongst other things

for maintaining the authority and impartiality

of the judiciary.

Your Honours, one would think that it must be

the - ambit of what is the judiciary in any society

is one to be determined to some extent by itself.

Nationwide(2) 171 4/12/91

DEANE J:  Mr Jackson, is this really ever going to be a live

question in the sense that if your construction be

correct, and 299(1)(d)(ii) is qualified in the way

you would qualify it, it is hard to see that it

would not come within reasonable regulation or

whatever is relevant. If your construction be
wrong, and it simply applies without any

qualification being implied, it is hard to see it

would not fall well outside these international

conventions that you have pointed us to.

MR JACKSON:  Your Honour, if one were to take the widest

application of it which one could possibly take,

what Your Honour says is right, I think. It is

possible, however, for there to be - one perhaps is

not speaking just about alternatives in the sense

that there may be some half-way reading of the

provision, and that is the point I am concerned
with.

Your Honours, could I proceed then to deal with one other aspect of it, and that is the

narrower freedom relied upon by my learned friends.

In that regard, could I ask Your Honours to look at our learned friend's written submissions, or the

outline of argument, and in particular I wanted to

refer to the argument which appears at pages 8 to

11, dealing with the situation of the Australian

Capital Territory. Your Honours, reliance is

placed at the bottom of page 9, paragraph 5, upon

what was said in Smithers case but, Your Honours,

it is apparent, if one goes to that case, and it is

16 CLR, at pages 108 and 109 - I will not actually

go to them - that what is being spoken about in the

passage adopted from the United States case is the

position of State laws and not laws of the

Commonwealth.

Your Honours, similarly in Pioneer Express Pty Ltd v Hotchkiss, on which reliance is also placed

passage in question, is speaking about immunity in paragraph 6 at page 10, Sir Owen Dixon, in the	from State interference. So, too, is the
discussion in Lamshed v Lake, 99 CLR, at page 147,
the passage referred to in paragraph 8. It may be
that there is to be found in the Constitution an
implication of a right to communicate with members of Parliament and an implication of a right for
them to raise matters in Parliament, but one should
not, in our submission, rush to imply guarantees in circumstances where, as I have submitted earlier,
our system is based upon reliance on the members of
Parliament.
Your Honours, so far as a Territory other than the Australian Capital Territory is concerned,
there may be every reason for a restriction on

Nationwide(2) 172 4/12/91

access to the Territory. It depends on the

particular Territory as a matter of legislative

determination but, Your Honours, the power in

relation to Territories is one that is in every

respect relevantly plenary. Your Honours, could I

deal with a couple of other matters that have

arisen.

BRENNAN J: Could I just take you back one stage earlier in

your argument in an answer that you gave some time

ago about the prospect of the solution being

revolution.

MR JACKSON:  Your Honour, perhaps I should not have said

that.

BRENNAN J:  It just occurs to me that that perhaps is the

one area where there is work to be done for the

words, "peace, order and good government", so that

the powers which are conferred pursuant to that
formula are such as must be exercised to preclude
the prospect of overturning by violence the

government which the Constitution creates. If that

be so, then there is ample basis statutorily for

the implication.

MR JACKSON:  Your Honour, may I say with respect that

Your Honour is creating work for generations ahead

of us, but having said that, Your Honour, one must approach the Constitution of course with a view to looking to it as an instrument for government for

an undefined time. But it is an instrument for

government by particular institutions.

If I could deal first with the point I was

seeking to make, Your Honour, which I put too

shortly I think: what I was seeking to convey was

that if one got to a point where parliaments were

seeking to enact legislation which was of a kind

which involved gross interferences with what one

would regard as the ordinary freedoms of mankind,

then one probably has reached a situation where the

existence of a constitutionally guaranteed express
freedom is not going to matter, nor is the

existence of a court which declares that freedom if

the members of it are allowed to be here to do it.

One has reached a situation where the government has become a government in name but not a

government which is following out the Constitution.

Your Honour, that is the point I was seeking to

make.

Turning then to what Your Honour has said - I

will not go over the cases dealing with the meaning of peace, order and good government of course - but

what I would seek to say about it is this, that no

doubt the concept of peace, o.rder and good

Nationwide(2) 173 4/12/91

government involves within itself some conception

that the object of legislation will be to achieve

that aim: peace, order and good government. But
the selection of the means by which that is to be

done is fundamentally, in our submission, one for

Parliament. That is really where one gets a

division of power.

Your Honour, it becomes very difficult if the

Court were to say that peace, order and good

government is, in the end, not to be decided by

Parliament but to be decided by us, because, for

example, one thing that might be thought by

Parliament to produce peace, order and good

government would be to have war. Is the Court to

decide that that is wrong because it will involve

the deaths of many persons.

Your Honour, the notion that is involved in

what Your Honour put to me is one that, with

respect, crosses the boundary of the division of

power and we would submit it is possible to explain

it in a way that does not. But we would submit in

the end, Your Honour, it brings the Court and

Parliament into potential conflict, a conflict that

the Constitution does not contemplate.

Your Honours, I was going to move on to deal with a couple of other matters.	One relates to
something more about the first amendment.	I have

given Your Honours a copy of it. The first

amendment provides, as Your Honours have seen,

that:

Congress shall make no law -

which abridges -

the freedom of speech, or of the press -

Now, publications in newspapers sold to the public

of its protection. Your Honour Justice McHugh	fall, of course, squarely, within the central area
referred to cases dealing with commercial speech
and what is contemplated by that are cases not
concerned with the means of communication but with the content of it and they decide, to put it
broadly, that commercial speech, which is essentially advertising, is entitled to some
protection under the first amendment although to a lesser protection than, for example, political
speech.

Your Honours, could I give one reference to a

case where the earlier cases are discussed and that

is Board of Trustees of the State University of New

York v Fox, (1989) 492 US 496. Commercial speech

Nationwide(2) 174 4/12/91

enjoys the lower level of protection. Political

speech, which it is right to say includes criticism

of government institutions, enjoys the highest

level of protection under the first amendment.

The leading case in that regard is Bridges v

California, (1941) 314 US 252, and that was the case in which the Supreme Court adopted the test

that for a contempt law to be constitutionally

valid there was a need to show a clear and present

danger of interference with the administration of

justice. And Your Honours will see the topic

discussed in Tribe, American Constitutional Law,

(1988), at pages 856 to 857.

Your Honours, could I also say that in relation to that what was known in Australia and

the United Kingdom and in other jurisdictions
deriving from England originally as the offence of

scandalizing the court, does not appear to have

become known as an offence in the United States,

maybe because of the first amendment. But

Mr Justice Frankfurter in Bridges v The State of

California, in dissenting, referred to it as "some

English foolishness".

Your Honours, I mentioned yesterday the

possible existence of some restrictions even on the

freedom of communication of what took place in

Parliament during wartime and we had some material

prepared in relation to that. May I give

Your Honours copies of that. What it consists of

is a letter which summarizes the material that is

contained in it. I do not think I need to go to

it, but Your Honours will find what seems to be a
summary of the restrictions. What that indicates

is that circumstances do arise where it is

necessary for there to be restrictions placed on

communications even, one would think, at the heart

of democracy and one would think, we would submit

with respect, that the best persons to choose the

appropriateness of those restrictions are to be
found in Parliament.	Your Honours, those are our
submissions.

MASON CJ: Thank you, Mr Jackson. Mr Solicitor for

Victoria.

MR BERKELEY: 

I hand up copies of our outline, Your Honour.

MASON CJ: Yes. 

MR BERKELEY: 

Your Honours, can I add one reference under

paragraph 2 and that is to Strickland v Rocla
Concrete Pipes Ltd, 124 CLR 468 at 492. Counsel

for the Commonwealth has dealt with the question of

severability and I respectfully adopt what he said

Nationwide(2) 175 4/12/91

about that, but it was put against us by counsel

for the applicant that these were State

legislation - the two cases we refer to are cases

where the prohibition was against trade or commerce of a particular kind in general terms, that is, the

same words were used to cover both intrastate trade

and interstate trade and, in the State legislation

there was a specific section in terms not to be

distinguished from section 15A of the

Interpretation Act which required the State Act to

be read consistently with the constitutional powers

of the State.

It was put by counsel for the applicant that that was a point of distinction. That is, where

the interpretation section was in the Act under

consideration, that had to be given some greater

effect than if there was a general interpretation

provision.

Now, in Strickland v Rocla Pipes,

Chief Justice Barwick points out that the effect of

a general provision like section 15A of the

Interpretation Act is to require every Act of

Parliament to be read as if that interpretation

section were part of each Act, and we would say,

with respect, there is no distinction to be drawn,

for these purposes, between a general

interpretation provision and a specific provision

in the particular legislation.

Could we then go on to paragraph 7. The basis

for our argument is this, that the same tests

should be applied to interstate intercourse as is

applied to trade and commerce. We say that for a

number of reasons, because if the Court adopts some

other test, that is one test for intercourse and

one test for trade and commerce, we will undo

altogether what was achieved in Cole v Whitfield.

It just will not exist any longer, because virtually every aspect of interstate trade and

commerce involves interstate intercourse.

If there is some wider protection for

intercourse, it cannot be right that a businessman

who is engaged in interstate intercourse, he will
come to the Court and say, "I'm entitled to

protection that is afforded to intercourse." It

cannot be right that he should be deprived of

section 92 just because his intercourse happens to

be commercial.

So that if some other test is adopted, one

will get the sort of pettifogging distinctions that

this subject has been bedevilled with for the last

90 years. There will be people constructing their

transactions so they involve intercourse. There

Nationwide(2) 176 4/12/91

will be legislation drafted in a particular way. The distinction itself in those circumstances is

just arbitrary and capricious and not one, one

would think, that the Court would be anxious to

promote.

The alternative test is what has been put

forward by a number of counsel, that instead of
having the test of discrimination in relation to

intercourse there should be a test of reasonable

regulation. But that itself, as we pointed out in

Cole v Whitfield, was the task of stating what is reasonable and what is not reasonable in this area

is one for which the Court is not well suited.	One
just has to go to the applicant's outline of

argument to see that. If I could take Your Honours

to page 6 - it starts at the bottom of page 5:

In relation to inter-state intercourse, the

tests of validity should be flexible enough to

accommodate the legitimate view that some

forms of intercourse should be immune or

virtually immune from legislative or executive

interference.

That itself requires some decision to be made as to

what are the valuable forms of intercourse and what

are the non-valuable forms of intercourse. This is
not a judicial decision. It is a political

decision.

Now, it is undoubtedly the case that an

ultimate constitutional court has from time to time

had to make decisions that often have political
consequences, and often enough they have to be

based on policy decisions. But the occasions when

the courts have to make what are really decisions

that ought to be made by the legislature ought to

be reduced as far as possible so as to maintain the

respect which this Court has always had.

McHUGH J: It is a question of what the Constitution

requires, is it not? It is not a question of

whether the Court is going to make a political

decision or not. Sir Owen Dixon said, "All the

questions that arise under the Constitution can be

said to be political but the real question is

whether they are compelling."

MR BERKELEY:  Your Honour, what Your Honour said to me, with

respect, begs the questions. What I am attempting

to make clear is that where the Court, in this

area, which, really, is virgin ground now - since

Cole v Whitfield this question of interstate

intercourse, there are a number of ways in which

the Court can approach it, each of which may be

seen to be a legitimate view of the Constitution,

Nationwide(2) 177 4/12/91

and one view of it that has been put forward is

that the Court can say that absolute freedom of
intercourse is consistent with reasonable
regulation; or the Court can approach it from

another view and eschew this question of reasonable

regulation altogether and say, "Every law about

intercourse is valid unless it discriminates

against interstate intercourse."

In deciding which of those paths the Court

will take, the Court is bound to look at what will

be the consequences. And if one path leads the

Court into the necessity, time and again, to say whether the legislature has behaved reasonably or

not, which often will involve very political

decisions, that is decisions about which each Judge

may have an entirely different point of view - - -

McHUGH J: But why should you use "reasonable" as opposed to

"necessary"?

MR BERKELEY: These are all just fancy words for the same

thing, Your Honour.

McHUGH J: Except it emphasizes the freedom which section 92

guarantees.

MR BERKELEY: There is a law about making obscene telephone

calls, Your Honour. Is it necessary that they

should apply to interstate telephone calls? That

depends on what you think about obscenity. Some

judges, undoubtedly, think it is a grave social

evil; some judges might think it is just a matter

of a nuisance. Now what is necessary in those

circumstances? Those are not really juridical

questions. The Court may well be forced into them

but should the Court take a path which makes it
necessary, in, really, cases after case, to make
those sort of decisions - these are really

decisions for the legislature and that is seen,

clearly enough, in the whole history of section 92

and that is why this Court looked at it all again

and came up with the Cole v Whitfield decision

which by and large makes those sort of cases

unnecessary.

In Cole v Whitfield the Court said that in

relation to trade and commerce what was forbidden

was discriminatory legislation of a protectionist kind. Now, the qualification "protectionist" was

put in because, under section Sl(i) the Parliament

has power to legislate with respect to trade and

commerce among the States - that is its only direct

power - so virtually all Commonwealth legislation

about trade and intercourse will discriminate

against interstate trade and intercourse, but so

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long as it is not discriminatory it is not

forbidden by section 92.

Parliament has got no power to legislate with respect to interstate intercourse and it follows,

in our submission, that therefore the test, for the

purpose of section 92, which just prohibited

discrimination against interstate intercourse,

would be appropriate. As much as that was said by

Chief Justice Latham in Gratwick v Johnson, if I could take the Court to that, in 70 CLR 1 at

page 13, about seven lines from the bottom:

The solution was discovered in drawing a

distinction between laws of such a character

that they did not interfere with the freedom

which was guaranteed bys. 92 and other laws

which did interfere with such freedom. Thus a

distinction was drawn between a law directed

against inter-State transport, or merely

prohibiting inter-State transport on the one

hand, and, on the other hand, a law which,

though it incidentally affected inter-State

transport, was not directed against it, but

introduced a system of regulation which

included inter-State transport and which did

not amount to a mere prohibition thereof.

There were two tests set out there. The first was

that you could not have laws which discriminated

against interstate intercourse and you could not

have laws which prohibited interstate intercourse.

We would say, with respect, that there is nothing

in the nature of intercourse in the context in

which it appears in the Constitution which requires

any wider freedom or any greater curb on

legislative power.

In answer to something Your Honour

Mr Justice Brennan said this morning, this is not,

we would submit - it does not create any individual

rights. That is to say, if there is a question as

to whether there is a prohibition of interstate intercourse, the public character of section 92

requires the Court to look at the entire concept of

intercourse and not the intercourse of any

particular individual or party.

BRENNAN J: That seems to have a significant effect upon the

kind of protection that one might have expected it

to give, for example, the ordinary movement of

somebody walking across a State border is, one

would have thought, a paradigm example of an

individual right.

MR BERKELEY:  I understand that, Your Honour, but we have a

law which says a person suffering from a highly

Nationwide(2) 179 4/12/91

contagious disease - there is no place for a highly

contagious disease in Albury and there is a law
passed saying those people shall not travel into

Victoria for the time being. If one thinks of intercourse or section 92 as having a public

character, one can see that that law does not

prohibit the entire concept of intercourse between

Victoria and New South Wales, although it does

completely prohibit the interstate intercourse of

persons who for the time being are suffering from

the disease. They do not have any individual

right, although the right of everybody else is not

affected.

Now, lastly, could I come to say something about communication and it is stated rather

elliptically there, but it is based on two matters:

one is the idea that intercourse is concerned with

movement and it guarantees free movement, not free

speech and, secondly, that some effect ought to be

given to the words "whether by internal carriage or

ocean navigation". Now, one sees from the history

of section 92 set out in Cole v Whitfield at

page 387, that those words were there from the

beginning or similar words.

The section does not say whether or not by

internal carriage or ocean navigation. It could

have said - if the words were not there at all the

section would have an unlimited operation, and we

cannot pretend, with respect, that they just are

not there. In our submission, they must be, if not

exactly limiting words, in some way definitive of

the content of trade, commerce and intercourse.

Now, it is true that in McArthur's case, the

majority said that those words did not have any

effect at all, but - - -

McHUGH J: Sir OWen Dixon said the same thing in the Banking

case, at about 382.

MR BERKELEY: Yes, Your Honour, but relying on McArthur's

case, expressly relying on it. Now, the majority

in McArthur's case said that section 92 did not

bind the Commonwealth, so it was very easy to say,

in that case, that there was absolute freedom from State laws of whatever description, and to give as

wide an ambit as possible to the words "trade,
commerce and intercourse", but clearly enough, in

giving that wide ambit and saying it did not apply to the Commonwealth, the majority were wrong. The

Privy Council said so and it has been so held ever

since. So, in our submission, the expression of

opinion in McArthur's case about that is of no

authority at all.

Nationwide(2) 180 4/12/91

I think perhaps it is also mentioned in

Smithers's case. In that case, two judges relied

upon some implied constitutional freedom and did

not refer to section 92 at all, and two relied on

section 92. So there was no majority view there

either, for anything, so that is not of authority
either and, in our submission, the question is

entirely open.

McHUGH J:  But what about the banking case itself? I mean,

the banking case got the protection of section 92

because you got the transmission of credit and

money.	Of course, it was notional for the most
part.	I mean, people did not carry gold sovereigns

across the border.

MR BERKELEY:  Yes, Your Honour.

McHUGH J: That was held to be protected by section 92.

MR BERKELEY:  I am not sure, Your Honour, but I think that

was on the basis of trade and commerce - that

constitutes a trade in commerce, but, Your Honour,

that may affect my argument.

Why we are raising this argument is,

Your Honour, that there is some indication that

those are the same provisions that themselves
thought that in some way these words were

definitive because as they were originally phrased,

the expression was, "whether by land carriage, or

ocean navigation", and obviously enough, land

carriage did not cover the paddle steamers that

still travelled down the Murray and the Darling,

and the words must have been changed because of

some fear, or some perception that, in fact, the

words were some indication of what was meant by

trade, commerce and intercourse, and they were,

therefore, changed to internal carriage or ocean

navigation. Would this be a convenient time,

Your Honour?

MASON CJ: Yes, Mr Solicitor, we will adjourn now

until 2.15 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

MASON CJ: Yes, Mr Solicitor.

MR BERKELEY:  I wonder if I might come back to the matter

Your Honour Mr Justice McHugh raised, and that is

Nationwide(2) 181 4/12/91

the Bank case. The words that we are considering

whether by way of internal carriage or ocean

navigation appear in a context and they get meaning

from their context. Now, if one greatly changes

what is perceived to be the meaning of the context,

then one cannot say that what was previously said about the meaning of the words we are considering

is of any authority. And that perhaps becomes

clear if one briefly goes, if I could briefly take

the Court to the Bank case in 76 CLR 1. At

page 380 Justice Dixon deals with this specific

matter, and about ten lines from the bottom of

page 380 His Honour says:

The first question for decision is

whether the trade, commerce and intercourse to

which s 92 gives freedom covers matters of the

foregoing description. It is said that the

protections 92 provides extends to the

transfer from one State to another of nothing

but commodities and persons. Intangibles are

said not to be covered. In my opinion this is

an unwarranted limitation upon a

constitutional provision that was intended to

guarantee freedom from restriction to a broad
category of interchange, converse and dealings

between the States in the affairs of life.

It was part of the purpose of section 92

to remove from the possibility of legislative

and governmental restriction activities

conducted across State boundaries and to do so

rather because of their interstate character

than of any special claim to immunity from

interference.

Now what His Honour bases himself on and what

the decision is based on is that it was the purpose
of section 92 to remove from the possibility of
restriction either by the Commonwealth or the State

of certain activities. They would were to be free

of all restriction of any kind. That view of
section 92 is gone.	In Cole v Whitfield they have

said that is not the purpose of section 92 and

His Honour used those words as a justification for

giving a particular ambit to trade, commerce and

intercourse. Once it is seen that His Honour's

reasons for giving that width to the expression are

wrong then one cannot accept as authority what His

Honour says about that expression, and it is for

that reason that we say, with respect, that the

question is still open.

The last matter we want to draw attention to

is the distinction between section 92 and

section - - -

Nationwide(2) 182 4/12/91

McHUGH J: Before you leave it, I notice it was at 383 that

His Honour said that the words "whether by means of

internal carriage" are words of extension, not of

restriction.

MR BERKELEY: Yes, I understand that. Is that the passage

where His Honour refers to McArthur's case?

McHUGH J: No, it is not. It is at 383, the second

paragraph.

MR BERKELEY:  I do not dispute that that was the traditional

view, Your Honour, but I do say it is based upon a

view of section 92 which no longer commands

acceptance in this Court.

The last matter I want to refer to is the

distinction between section 92 and section 5l(i).

One does not find in section 5l(i) trade and

commerce among the States, whether by way of

internal navigation or not, but it is true that the class of laws which may be made under section 5l(i)

is wider than the class of laws under section

92.That is because it is a power to make laws with

respect to, but we would submit, with respect, that

the expression "trade and commerce" in section 51

has exactly the same meaning as trade and commerce

in section 92.

McHUGH J: Section 98 of course extends section 51. It says

that it applies to railways, navigation and

shipping.

MR BERKELEY: Yes, Your Honour. I am indebted to

Your Honour because that probably emphasizes what I

am saying, that unless one is going to say that

those - one assumes those words were added for some

purpose in view of what is in section 51, and we

see from the history of it that they were rather

carefully drafted. They were not put in as a

political statement. They started off as "land

carriage or ocean navigation by means of", and they

were altered once or twice, and one can see why

they were altered.

We would submit that some effect ought to be given to them. That effect is to direct attention

to the passage of persons and goods across State

borders. If that is correct, then communication as

such is not intercourse. It may incidentally. The

expression is "intercourse shall be free", and we
suggest that means movement of the kind we have

said shall be free and it is not - that may

incidentally mean that there is some protection of

freedom of speech.

Nationwide(2) 183 4/12/91

What is protected is the movement of

newspapers across the State border. In some
respects that may operate as a protection of free

speech, but that freedom is consequential and

incidental to the freedom of intercourse; it is

not part of it. So that one asks not, "Does this

law impinge upon freedom of speech?", but, "Does it

impinge upon freedom of movement?", with respect.

McHUGH J: Supposing Victoria passed a law which said nobody

shall drive a car more than 100 miles per day,

would that infringe section 92, if somebody said I

want to drive from Melbourne to Sydney?

MR BERKELEY: It is a borderline case; probably not,

Your Honour, because you would have to ask

yourself, unless you could see from the context

that it was directed at interstate movement. If it

was not directed at interstate movement you would

have to say, is it a prohibition of interstate

movement, that is as a total concept. Now, it may

be that in this day and age, and in view of the

methods we adopt in getting to one place to another

hell for leather as far as we can, it may be that

it would. If the Court pleases.

MASON CJ:  Thank you. Mr Solicitor for South Australia?

MR DOYLE:  Does the Court have our outline of submissions?

MASON CJ: Yes.

MR DOYLE:  And there should also be a booklet with some

extracts from the convention debates, do

Your Honours have that?

MASON CJ: Yes.

MR DOYLE:  Your Honours, in a way the issue which faces the

Court here could be said to be rather similar to

the issue which faced it in Cole v Whitfield and it
could be put this way:	is the statement in

section 92 a complete statement that intercourse

among the States is absolutely free, and I suppose

if you say it is a complete statement then you

focus on, what does absolutely free mean or, on the

other hand, is it an incomplete statement which

requires one to complete it by identifying the

thing from which intercourse among the States is

free?

At the, probably, considerably risk of being

torpedoed right at the outset, Your Honours, I am

going to just try to put in very brief form the

essence of our submissions and then develop them.

Nationwide(2) 184 4/12/91

First of all, we would submit it is an

incomplete statement and that what it means is free

from laws, the object of which is to impede

movement and communication across borders. And I

suppose we would underline or italicize "across",

there.

We submit the debates are important in this

context because, although intercourse in the

debates was frequently used in connection with

trade, and to a considerable degree as a synonym

for it, one does see an underlying idea or notion

in the debates of protecting movement across the

borders but not protecting movement or

communication as such. In other words, not in any

Bill of Rights sense, if I can use that as a shorthand way of describing free speech. But when

intercourse is used in this context of talking

about movement across borders, that is the movement

it is protecting, not movement as such; and we

would say, by analogy, not communication, as such.

And so the submission which we put is that,

first of all, there is protection against laws

which prohibit or impede, in terms, movement or

communication across borders; the law which deals,

in terms, with those things.

Then, secondly, you have to face the problem

of general laws, or laws generally expressed and

the example Your Honour Justice McHugh gave a

moment ago is a very good example of that, a law

which says, "No one shall drive more than

100 kilometers a day.". Clearly, that could well

be an impediment to the crossing of the border.

That problem was seen in the debates in a general

way but no solution was indicated.

Our approach to that aspect of the problem is

to say that one has to characterize the law.	One
asks, first of all, is there an impediment to
movement across a border or communication across a

border, and a law that no one is to travel more

than 100 kilometres a day does pose such an

impediment. Then one asks, what is the purpose of

the law, and if one can discern a purpose which is

other than to impede the movement or the

communication, one says, is the impediment which

that law causes to movement or communication across

a border proportionate or reasonably incidental to

that object, being an object other than the

impeding of the movement or communication and, if

it is, then the law passes, and if it is not, then
the law would be struck down, because on that

process of reasoning - and Your Honours will see

the analogy to the test in Cole v Whitfield - we

would submit, if the impediment is not

Nationwide(2) 185 4/12/91

proportionate, one has identified a law the object

of which is to impede the movement or the

communication.

Your Honours, it is very difficult, in our submission, to know how to approach laws of that

sort, the generally expressed laws, and on our
approach to the one Justice McHugh gave, we would

say, yes, there is an impediment, so the law has to withstand scrutiny - what is the object of the law?

And let us assume - although it does not really fit the example, let us assume that it is a time of

acute energy shortage and it can be seen, plainly

enough, that the object is to conserve petrol, then

the law may well withstand the scrutiny and may be

valid.

So, we look for an impediment. It does not

have to be a discriminatory impediment because,

obviously, under that law an intrastate journey of

100 kilometres or greater than 100 kilometres is

equally impeded. So we submit that the approach is

to ask, is there an impediment to the interstate

movement, what is the object of the law, and then

to consider whether the impediment which the law

imposes on interstate movement is more than

proportionate or is disproportionate to what I will

call the legitimate object.

McHUGH J: If you have this division, it does create some

strange results. If the Commonwealth passed a law

that you could not telephone between Sydney and

Melbourne between 6pm and 6am and somebody wanted

to ring up a friend to borrow his car when he
arrived in Melbourne the next day, in that
situation the law would be struck down by

section 92, but if you wanted to ring up a hire car

agency, because it would be a commercial

transaction, it would not be struck down.

MR DOYLE: Well, I am not sure, Your Honour. In our	submission, one applies the Cole v Whitfield test	and the test we are advancing cumulatively, so if
you have an activity, which is both trade and
intercourse, then both tests will be applied. If
it is one only, trade only, then you would apply
only what I will call the Cole v Whitfield test, or if it is intercourse only, a purely private communication, then one would apply only the test
in relation to intercourse. And so, under our
approach, we do not endeavour to allocate
activities exclusively to one category or the
other, and while there may be inconveniences at
times in applying the two tests, in our submission
it is not easy to conceive of a law which would pass the protectionism test and then fail the test
we postulate. Now some may say that is a weakness
Nationwide(2)	186	4/12/91

and that that shows that the test is something of a

paper tiger, but anyhow that is the approach which

we put.

Just apropos that, Your Honours, and the

relationship of trade and intercourse, the point we

would seek to develop is this that both as a matter

of ordinary language and in the debates,

intercourse is often used interchangeably with

trade and commerce and to refer to the same things,

but intercourse is a term of more extensive

meaning; there can be things which are intercourse

and which are not trade and commerce and probably

things which are trade and commerce and do not

involve intercourse. And what you have to do is

you ask, first of all, is trade among the States

involved, in which event you will ask, "Is the law

protectionist?" If that trade also involves

intercourse, well then be it intercourse in the

course of trade or be it intercourse quite apart

from trade, then one applies the other test.

An example perhaps would be of a bus driving

across the border with passengers who are
travelling purely for pleasure. In our submission,
the passengers are engaged purely in intercourse.

The driver himself is engaged in intercourse, but he is doing that in the course of his employer's

trade. But the owner of the bus presumably is

engaged in trade and commerce among the States, but

presumably not intercourse among the States because
it does not seem a natural use of the language to

say that the bus proprietor is engaging in

intercourse among the States. And so in relation

to the bus proprietor we would submit the test is

the Cole v Whitfield test, and then in relation to

the others, the driver who engages in intercourse

mixed up, as it were, in the course of trade, it is

simply the test for intercourse and likewise for

the bus passengers.

BRENNAN J:  Does that mean that if there was a law which

prohibited a movement across the border one might
have the situation that a principal offender is
dealt with in one way and a person who aided or

abetted might be dealt with in another?

MR DOYLE:  Your Honour I take it is postulating a law which

makes it an offence to move across the border?

BRENNAN J:  Or move towards the border without paying a fee.

MR DOYLE: Well, could I ask is Your Honour postulating the

person who moves being a trader or - - -

BRENNAN J:  I am thinking if the offence was the usual old

transport offences, moving without paying a fee on

Nationwide(2) 187 4/12/91

a road which leads across the border, would you say

that you would prosecute the bus owner, but the bus

driver who lived across the border and was going to

get off there would be free of any culpability

because he would be engaged only in intercourse?

MR DOYLE:  No, Your Honour. In my respectful submission, if

the law is invalid then it will protect anyone who
falls within the scope of its protection, and so if

it is offensive as a law against intercourse then

no offence can be committed. So if it offends our

test for the protection of intercourse, then no

offence is committed by anyone. If it does not
offend the test and is valid, then both will be

liable to be convicted and, in effect, the test is

applied once to the law.

BRENNAN J:  What happens to laws which do impose a road fee

when the driver wants to go across the border for

personal reasons?

MR DOYLE: Well, Your Honour, if a road fee is imposed,

again one has to say, "Does the law impact on trade

and commerce among the States?" and if it does,

then it has to pass the test of protectionism.

BRENNAN J: It passes that.

MR DOYLE: Secondly, Your Honour, one has to say, "Is there

an impediment to the mere interstate movement?"

Presumably there is. One says, "What is the object

of the law?" Then one looks at the impediment to
the interstate movement and one says, "Is the

impediment disproportionate to the achieving of the

object, assuming we have identified an object,

other than the preventing of the movement?" So

again the law stands or falls according to that

test.

As I put to the Court a moment ago, in our submission it is unlikely that a law would pass the

protectionism test and fail the second test, but in	our submission one still applies the two tests in
sequence.

BRENNAN J:  It is a test which is applied to the law and not

to the individual?

MR DOYLE:  Yes, Your Honour. It is probably perhaps best to

stay away from that term "individual right" because

it causes confusion, but in our submission we are

talking of a test which leads to the invalidity of
laws, very much in the way I think Your Honour

Justice Brennan put it in contrasting section 92 and section 117 in Street v Queensland Bar

Association.

Nationwide(2) 188 4/12/91

It is a test which, if failed, leads to the

invalidity of the law. It is only a question of

standing as to whether one can raise the issue.

One does not have to show "I am actually engaged in

trade and commerce among the States" to, as it

were, raise Cole v Whitfield, or "I am actually

engaged in intercourse among the States" to raise
our test, but there is the issue of standing. Once

that is passed, the test is applied and what one is
testing is validity of the law, not a mere

individual liberty to disregard the application of

a valid law.

So, Your Honours, it could also be said just

in this nutshell survey that the test we propose

gives little, if any, protection to what I will

call movement as such, disregarded from movement

across a border, or communication as such. We

acknowledge that and submit that that flows from

the object of section 92, which one in a compressed

way can call a federal object. Its object was the

removal in this respect of obstacles to the

crossing of the border and obstacles to

communicating across borders.

While it is difficult to talk of communicating

across borders separated from the substance of what

is communicated - and this is why, in our

submission, the issue which faces the Court here is

a particularly difficult one - nevertheless that is

what section 92 was all about, and so we do not, as

it were, recoil from the criticism that our

approach gives little, if any, protection to speech

or communication as such. We submit that is; not

what section 92 was aimed at anyhow, and so that is

not a criticism, we would submit, of the conclusion

which we reach.

So, Your Honours, that in a nutshell is the

submissions we want to put. We do want to go

briefly to the convention debates, and I am only

going to read a few snippets from them, because by

and large they can speak for themselves, but just

to make some points from them. In very brief terms

the points we want to make - and I will go to the

passages in a moment - are that first of all,

intercourse is used in the context of trade

sometimes as a synonym, but also in that context it

seems to be used as referring in particular to a

general notion of freedom of movement across

borders.

The scope of that notion was far from clear in

the debates, but in our submission the focus was

always on the border and the crossing of the

border. In our respectful submission, the term

"intercourse", which we acknowledge has a meaning

Nationwide(2) 189 4/12/91

apart from what I will call the trade context,

should be read in that context and with that focus

of things happening across the borders.

So, Your Honour, I am really at paragraph 3 in

our outline and, just on that point that

intercourse is used interchangeably with trade,
could I invite the Court's attention to paragraph 1
in the book of materials relating to the convention
debates.

First of all, Your Honours, I might just take the Court to two or three illustrations of the use of intercourse as a term interchangeable with or a

synonym for trade and commerce and these references

are in appendix 3, which is two or three pages on. I would just like to pick out three or four of the

references just to make the point.

Your Honours' books should have tags on them

marking the start of each section of the debates

and then, behind each tag, the pages are just
simply arranged in numerical order from the book.

So, in 1891, page 54, in the speech of Mr Playford,

towards the bottom of column 1 on page 54, he is

referring there to the second of the resolutions

which Mr Parkes moved at the opening of the

convention and he says, just after where it is set

out:

it appears to me that the last speaker,

Mr Munro, of Victoria, has fallen into an

error in supposing that, because this

resolution with regard to free intercourse is

here, it would mean that free intercourse

between the various colonies should take place

before the federal parliament had time to pass

a tariff bill fixing the tariff for all the

colonies.

Clearly, he seems to see intercourse there as

simply interchangeable with trade and commerce. The next reference, Your Honours, 1897,

page 20, that is the second of the pages for 1897,

in the speech of Mr Barton, column 2, at about

point 5, he says:

The third contains conditions.

He is referring there to the third of the

resolutions moved at the beginning of the 1897

convention and that third one was:

Nationwide(2) 190 4/12/91

That the exclusive power to impose and collect

duties of Customs and excise ..... shall be

vested in the Federal Parliament.

The resolutions are all set out on the preceding

page in the booklet, Your Honours. He says:

The third contains conditions without which

Federation would be impossible. The Federal

Parliament should have the exclusive power to

impose and collect Customs duties. Clearly we

could not have border duties. We should have

free intercourse by sea, as well as by land,

between one colony and another.

And he goes on. And, again, my point is that here

he is clearly using intercourse as referring to

trade and commerce generally because he links it to

the imposition of uniform customs duties.

Sydney in 1897, Your Honours, page 136, it is

the second of the pages for Sydney 1897, the speech

of Mr Reid starting at the bottom of the left-hand

column:

My hon. friend, with his usual

disinterestedness, is not speaking for

himself, but for a number of

friends ..... nothing but the most ingenuous

generosity of the hon. member ..... would have

prompted him to make such an extraordinary

statement as that with reference to such an

obnoxious bar to intercolonial free-trade as

the stock-tax of Victoria. He would actually, as to that particular form of obstacle between

the colonies, bring about freedom of
Australian intercourse by safe and mild doses.

And, clearly, he seems himself as talking about one and the same thing there when he talks about the:

bar to intercolonial free-trade -

and then -

freedom of Australian intercourse.

And then, just for 1898, Your Honours, page 501, it

is about the fourth or fifth page, again a speech

of Mr Barton, dealing with what became

section Sl(i), this is in column 2 about a third of

the way down, he said:

I put it this way - take it that clause 89 -

which became section 92 -

Nationwide(2) 191 4/12/91

insists that trade and commerce shall not be interrupted, or, I would rather put it, that

trade and commerce shall be uninterrupted.

Trade and commerce are not uninterrupted if

the state can make navigation on ordinarily
navigable rivers of the Commonwealth
impossible. Therefore, the Commonwealth must

secure that navigability.

I think, Your Honours perhaps that one does not

really carry the point.

McHUGH J:  It rather suggests that the Banking case might be

right and Cole v Whitfield wrongly decided.

MR DOYLE:  Yes, I am indebted to my friend, actually I think

I am looking at the wrong column, yes, it should be

column 1 where, after the reference to clause 89,

Mr Barton says:

He will see that that clause, in terms not

thought of at the time the American

Constitution was framed, secures to the

Commonwealth the control of all trade and

intercourse in the direction of freedom. That

is to say, that the words "internal carriage,"

in clause 89, if they are carefully read and

contrasted with "ocean navigation," must apply

to the security of freedom of trade, whether

the trade is carried by land or on a river.

Then, that clause, I take it, means

uninterrupted intercourse between the states.

And, again, he seems to see the terms as interchangeable. They are the only ones I would

seek to read, Your Honours, from appendix 3, but

could I just go back to appendix 3 for a moment,

also invite your attention, in particular, without

reading from them, to the reference in 1898 to

Mr O'Connor at 914 and Mr O'Connor again at 1302. So, our first point is that frequently one

finds the term intercourse used interchangeably
with trade, but underlying it in a number of the

references one finds illusions to the notion of

free movement, a slightly wider notion, and if I

could go, Your Honours, just back to the text which

accompanies the material, paragraphs 3, 4 and 5 I

do not seek to elaborate on. In paragraph 6 of

that covering statement we make the point that

intercolonial free trade at times seem to mean that

there would be free interchange of persons and

goods between the colonies. And could I just give

Your Honours two or three illustrations of that

point from appendix 8.

Nationwide(2) 192 4/12/91

Turning to appendix 8, could I first of all go

to the speech of Mr Parkes, Sydney, 1891. It may

be that in this speech the notion is used more

widely than we would accept. This is at page 23 of

the 1891 material - having moved the motions at

page 23, his speech continues at page 24, and in

column 2 about a third of the way down, he says:

By my next condition I seek to define what

seems to me an absolutely necessary condition

of anything like perfect federation, that is,

that Australia, as Australia, shall be free -

free on the borders -

which we would stress -

free everywhere -

which obviously tells a bit against us -

in its trade and intercourse between its own

people; that there shall be no impediment of

any kind - that there shall be no barrier of

any kind between one section of the Australian

people and another.

But again, we would submit that the overall flavour of it is that the barrier is constituted by the borders.

Then Mr Deakin, also in 1891, at page 71, column 1 at the bottom of the page - he refers to

the resolutions, the second and third resolutions,

and he says:

they might have been legitimately placed in an

opposite order - that we should first have

asserted the power and authority of the

federal government to establish a common

tariff, and that then we should have had as a

corollary the principle of free interchange

between the several provinces of the union. This, however, has already been dealt with.

And the speech then continues. And so he obviously
brings forward that notion of free interchange.

And over the page, again Mr Deakin's speech, in the

left-hand column, after the interjection by

Mr Douglas:

The honourable member must pardon me if I do

not now see the pertinency of his

interjection. I was about to point out that,

supposing this principle to be adopted, this

guarantee to be given -

that is free trade and intercourse -

Nationwide(2) 193 4/12/91

it does not necessarily imply that nothing

should be done in the way of free interchange

between the Australasian colonies in the

meantime.

And again, he uses the words "free interchange" to

refer to one of the objectives.

Also in appendix 8, Your Honours, if I could

jump over to Sydney, 1897, page 1054, in the speech

of Mr McMillan - in this speech, Your Honours, we

find, in my submission, the stress being on the

entry into a State or across a border, not the

freedom thereafter, with the underlying idea of

interference with personal movement through the

customs houses. In other words, apropos of the
customs houses, the notion of the impediment to

movement that they could constitute arises, and

they are talking here of what the Constitution is

to contain in relation to liquor.	He says, in
column 2:

I hope that in discussing this matter our

views in regard to the liquor traffic will be

carefully excluded. I do not know how this

question has been dealt with in other parts of

the world; but I can see that by giving the

states power to forbid the import of liquor

you have an absolute abnegation of

intercolonial free-trade. We know very well

that in dealing with the customs, if you have

an ad valorem duty upon only one article, it

leads to a wholesale system of espionage,
delay and inconvenience. I fail to see how
you can give power to the states to prevent

the importation of liquor unless you give them

full power over the means of transit over

their borders.

And so, in a rather dim way, this notion of freedom

to move coming through, but now the impediment to

the freedom of movement coming from customs laws. Although an affidavit might be given -

et cetera, and then a little further down:

You might have the whole of the border trade

of a state interfered with in that way by the

officers of the state.

And such a thing would lead indirectly to the

re-erection of what would be practically customs

houses and then, further down:

Let the states who want to prevent the consumption of intoxicating liquor within

Nationwide(2) 194 4/12/91

their borders provide that all spirits shall

go into public bonds.

And there one sees the notion that we have to

grapple with of trying to free the movement across the border, leave the States free to deal with the thing within the State and yet, at the same time,

not impede the movement across the border. And he

continues at the bottom of that page and over to

the next page, just reinforcing the point Mr Isaacs

- it is page 1055, column one, about 10 lines into

his speech:

The difference is essential. I quite agree

with my honourable friend that the power of
the states to regulate the importation - that

is to say, the traffic in the sense of

conveyance - is a very different matter from

the sale of liquor within the state to the

people of the state. We have never attempted

in our amendment to interfere with the

importation or the transit.

And he goes on to say what his amendment is and

then over in column two, about the middle of the

page:

As soon as the liquor comes into a state, and

goes into consumption or use in the state
itself, the state shall have the same power to

make regulations with regard to that use or

consumption as it can with regard to liquor in

its own territory.

So again, the constant focus on the movement across the border; the removal of impediments to that

movement; allusions to the way in which dealing

with the mere trade through a customs house can

impede the personal movement and mixed up with it

all at the same time the concern that once people

are in the State, the State laws are to be free to

operate. And so that, in our submission, emerges

fairly clearly as the focus. Could I just read two

other passages from 1898 on this same point.

Mr Walker - that is 1898, page 819. In column two,

is talking here of systems of compensating the

States for the loss of customs duties and alluding

to bookkeeping that goes with it and he just makes

the point at about the middle of column two that

all this bookkeeping he says:

will be less troublesome than the present

system of Border Duties. There will be no

inspection of goods or declarations of value,

and after the first few years it will be

largely a matter of statistics.

Nationwide(2) 195 4/12/91

So again, alluding to the mere inferances that

occur from the existing regulations. And at

page 823, the very next page, and this is Mr Holder

now, column one, who takes a slightly different

view of the bookkeeping matter, and about a third

of the way down the column he says:

I regret exceedingly that, owing to the necessity of bookkeeping, we shall have to

lose some of the advantages of that freedom of
trade during the seven years. At the same
time, it is only fair to say that many of the

difficulties which now hinder the free flow of

trade and commerce will be removed, in spite

of the fact that bookkeeping is to be resorted

to. It is one thing to pass entries and to

pay duties, and another thing to pass entries

upon which no duties hang.

And he goes on to refer to the fact that:

there can be no inducement whatever to anybody

to pass false entries or to make any

misstatement regarding any importation. No

matter what he may say or omit to say, it will

not make a penny difference to him.

And he refers to:

the difficulty and the friction arising from

the collection of statistics on the border

will not be nearly so great as it has been in

the past, when the payment of duty depended on
the entry.

So, Your Honours, the point we make then is

that this notion of free interchange between the
colonies was never clear or precise, and while the

desire to give the States freedom to legislate was

there, the means of resolving the difficulty was

not addressed.	The notion of free interchange does
seem to have involved personal movement and the
movement of goods.	Freedom of movement, as such,

seems never to have been discussed. It always

focused on movement across the border, and also the

members were clearly alluding to the impediments to
movement that could flow from customs dues and the

procedures that went with them.

Your Honours, while the use of intercourse in

connection with trade might support an argument

that the term is to be treated as meaning only that

intercourse which is trade, that is not a view

which we put. We accept that the term intercourse

is wider than trade, and wider than things involved

in trade, but our respectful submission is that

when the term intercourse is used, still what is

Nationwide(2) 196 4/12/91

being focused on is the same thing, that freedom of

movement across the border, and that was the whole

and the sole concern in the course of the debates.

Your Honours, I do not think I need, in that

context, to read any further passages from the

debates to illustrate the points we seek to make,

but I will just come back to them in a moment in

another context. As to communication,

Your Honours, there was really no discussion, so

far as we can tell, of the matter as such in the

debates, and probably the reason for that is, as we

say in paragraph 8 of the explanatory statement

accompanying the debates, the known means of

communication were anticipated as falling under

Commonwealth control by virtue of the provision

which is now section Sl(v), and then what is now

section 98 ensured that the State control over

railways and means of navigation, which were

important channels of communication, would not be

an inhibition to the Commonwealth powers over trade

and commerce. So probably, in our submission, in

that context communication was not seen as a

problem. and certainly the absence of discussion of

it would support that view: nor can we identify any

particular obstacles to communication from the

debates.

However, as a matter of consistency and

language, it seems clear that the term intercourse

must embrace a freedom to communicate, but again we

would stress, in context, freedom to communicate

across borders and whatever test the Court adopts

has to be a test that would enable focus to be on

that.

One final point about the debates,

Your Honours, is that it is not clear, in our

submission, from the debates whether the movement

of goods was seen as embraced by such freedom as

was to be given to the movement of individuals or

whether intercourse was restricted to people and

their communications and not the goods which came

with them. That will, in fact, be our submission,

that intercourse of itself does not extend to the

goods which people bring with them or the things

which accompany them. In our submission, the issue

is not of great importance because even if the

movement of goods is embraced, that freedom was

substantially qualified by what has now become

section 112, and it was clear in the debates all

along that that sort of qualification was envisaged

and we have dealt with that particular

qualification, Your Honours, in paragraph 7 in the

statement accompanying the convention debates.

Nationwide(2) 197 4/12/91

I would just ask Your Honours in due course to

look at the references in appendix 10. I do not

think I need read them, because it is well known to
the Court the discussion in the debates about

quarantine restrictions at the border. Could I

just, in relation to appendix 10, invite attention

in due course in particular to Melbourne, 1898, the

discussion extending from pages 646 to 652, which

is at the bottom of the page where we have

extracted the references in appendix 10.

Your Honours, without wanting to labour the point unduly - and I know I have, as it were,

hurried the Court through the materials, but in my

submission they well support the point we seek to

make - the freedom guaranteed to intercourse,

either as part of trade or intercourse standing

alone, that is, unrelated to trade, was a freedom

from impediments to the crossing of the border by

persons and communications across the border and

not a freedom from the operation of the local law

at the point of destination.

Could I then make a couple of negative points

which perhaps have already been made. First of

all, there is simply no hint in the debates at all

of any Bill of Rights concept. That just cannot be

found there, and in our submission that is a fairly

significant point. The concept in this section was

clearly a federal one, using that as a shorthand

term.

Mr Parkes, who perhaps put things most widely

and grandly, if I could remind Your Honours of that

passage I read a moment ago at page 24 in 1891,

clearly the concept - if anyone was going to, as it

were, take the high ground and express the concept

in grand terms, he was, but one cannot find any

hint in there of a Bill of Rights concept of

freedom.

Of course, there is the significance of the

fact already alluded to, that despite the delegates

having before them the model of the American first

amendment, they did not use any language such as

"freedom of speech", It seems, in our submission,

almost incredible that if any notion of that sort
was embedded in the section, that an expression

like that would have been used.

On the other hand, could we also submit that

what we would call the federal focus of section 92

and the points we have been making explain what may

otherwise seem to be a trivialization of the

section. Today it may be said, "We seem to be

trivializing the section, we're giving it a minor

role", but as Your Honours know, the history of the

Nationwide(2) 198 4/12/91

matter is that this section was absolutely central to the whole Federation. To those who debated it,

in no sense was the role which we would seek to

give to it and which they were giving to it a

trivial or an unimportant one. It is just that

their concern was not in any sense with free
speech.

So in our respectful submission, in the

context of the debates, the completion which we
seek to give to the section makes sense as a matter
of expression. It simply means absolutely free

from laws, the purpose of which is to impede

movement and communication across borders.

The section, in our submission, if it is to be

consistent with its historical context, should deal

with laws which impose such an impediment and not

strike at laws which simply affect personal

movement or communication generally, although of

course that bald statement is not satisfactory and,

as I have indicated, has to be elaborated.

Your Honours, just to complete the references

to the debates - and, again, this is probably well

known to Your Honours - to simply reinforce the

point that in no way does what we put to the Court

trivialize or down play the role of section 92, we

have included as the first page for Adelaide, 1897,

the resolutions moved by Mr Barton there.

I have already referred to the first page for the 1891 debates where are the resolutions moved by

Sir Henry Parkes. And Your Honours will see on

looking at them that on each occasion, while on one

occasion there were four resolutions and the other

five, what became section 92 was one of those

resolutions and clearly seen as central to

Federation.

So, Your Honours, moving on then from what we

seek to draw from the debates to our submissions on

section 92, although the case, of course, before
us, relates in its primary sense to communication,

in our submission, to make sense of the matter it

is necessary to deal overall with intercourse;

that is, both movement and communication.

Your Honours, I have already foreshadowed the

approach which we take to section 92. First of
all, just at the textual level, in our submission, the approach which we take is supported by the use of the word "among" in section 92 and the
circumstances leading to the inclusion of that word

are known to Your Honours and were dealt with in

Cole v Whitfield, at page 390.

Nationwide(2) 199 4/12/91

We also draw support for our approach from

what has been alluded to already, the reference to intercourse by means of internal carriage or ocean navigation, the focus again being on the means of

movement and communication rather than

communication as such.

So, coming then to our specific submissions,

Your Honours, we submit, first of all, that a law

which, in terms, applies to movement across a

border and imposes an impediment will be invalid

because the object of such a law is to impede the

movement. And, in that sense, the right of

individual movement across a State border is

absolute because, as was said, I think, in Reg v

Smithers, there cannot be a separation of the

people within Australia.

In our respectful submission, consistently

with the section, a person cannot be stopped from

crossing a border because the person is diseased,

because he is a criminal, because he is likely to

become a charge on the public purse or because the

object of his journey seems trivial or unimportant.

To prohibit movement across a border at all or for

any of those reasons, in our submission, is

inconsistent with the type of Federation which was

envisaged. And so a law which prohibits movement

across the border for any of those reasons would be

invalid. I will come in a moment to the law which

applies to movement generally.

Your Honours, that right, we would submit, is

qualified to some extent by section 112 in this

manner, that an inspection law may involve an

impediment or hinderance to personal movement

because compliance with the inspection law may be a

hinderance. But, in our submission, to that

extent, the right of personal movement can be

limited or qualified. However, we would submit

that the question of whether a law is an inspection

law is something that at some stage the Court may

have to decide. In other words, it is not part of

our submission that anything which calls itself an

inspection law is therefore entitled to be enforced

free from section 92.

In our submission, the concept of section 112

must first of all assume that you inspect with a

purpose of keeping things out, and secondly, it must be implicit in that that travellers can be stopped and asked to show what they are bringing or

to declare what they are bringing.

Your Honours, there also may be some things

that escape scrutiny simply because they are not

seen as an impediment at all. For instance a mere

Nationwide(2) 200 4/12/91

obligation to complete a statistical return - that

may not be seen as an impediment at all;	a speed
limit in relation to the use of the roads.

A further point we would make about what we

call the absolute right of individuals is the point

I touched on a moment ago that it is limited to

individuals, and this particular right, if one can

properly call it a right, does not protect things

which the individual brings with him subject to

some qualifications which I will make in a moment.

That may be either because the notion of

intercourse simply does not extend to things the

person brings with him, or it may be because of the

sweeping qualification which flows from

section 112.

DAWSON J:  Does that mean you differentiate between

intercourse and trade and commerce then?

MR DOYLE: Well, Your Honour, we do in the sense that we say

a letter will be intercourse but not trade and

commerce. But if trade and commerce also involves

intercourse, then the test in relation to trade and

commerce and the test in relation to intercourse

will have to be passed.

DAWSON J:  I had in mind, say, an acquisition scheme which

is not protectionist and therefore does not offend
section 92, but it may prevent me carrying my goods
across the border. You say, well, it does not

matter because the intercourse part is just my

going across the border not carrying goods.

MR DOYLE:  Yes.

DAWSON J: Yes, I see.

MR DOYLE:  Yes, we would, Your Honour. And the

qualification which I will come to in a moment -

but just so it is clear what I am saying, obviously

the law that required you to stop at the border,

declare every single thing you had with you,

produce it for inspection - one might say in the

end, "Well, look really, that is a law which is

aimed at impeding you crossing the border." So
laws which impinge on the goods may, in turn,
impinge on you in a way which gives rise to an

impediment which receives scrutiny. But in

concept, we submit, the absolute right is for you

to cross and not to take things with you.

McHUGH J:  What about your suitcase? Can you not bring your

suitcase with you?

MR DOYLE: That is a good illustration, Your Honour, of the

sort of law which we accept will fall for scrutiny

Nationwide(2) 201 4/12/91

under the second part of our test. The law does

not fall on the thing which is central to

section 92 in terms, the right to move across the

border, but let us say anyone bringing any

household goods with them, we would submit, would

clearly be a factual impediment to the crossing of

the border and would fall for scrutiny under the

second stage of our test.

I should also say, Your Honours, that it is

implicit in our submissions that an inspection law

would not apply to individuals. As a matter of

history the concept of inspection laws appears

clearly to have been limited to goods, animals and

that sort of thing, and there is no suggestion that

it extends to individuals and that you can, under

section 112, for instance, inspect them for the

purposes of disease or something like that.

So, Your Honours, that in brief is the first

operation we would give to section 92, that laws

which in terms impede or prohibit movement of

individuals or communication across the border will

be invalid. However, Your Honours, section 92 is

clearly not a purely formal statement, cannot be

avoided, in our submission, by subterfuge or

fiction, and the limitation which it contains is

vital to Federation, and so obviously it has to be

given a substantive effect. And the question is,

"How does one do that?"

As I indicated at the outset, our submission

is that what it also strikes at are laws which do

not operate in terms on the protected thing, the

movement or communication across the border, but

have the purpose of impeding the protected thing.

And the issue to be faced here is:	how does one
achieve that result?

Could I just begin by indicating why we reject

certain approaches to that issue. First of all, we

be too narrow and would seem to deal only with laws submit that a criterion of liability approach would

which, in terms, speak of the protected thing.	And
so we submit that is an approach which cannot be
adopted.	On the other hand, an approach which

merely asked, is there in substance or in effect an

impediment, would be too wide, if that was the be

all and end all of the test, because almost any

law, in some way, could be seen - perhaps that is

too wide - many laws could be seen to impose some

impediment in effect or in their operation.

So, in our submission, if one - as we do

ourselves - focuses on the notion of an impediment,

one at least has to further qualify the test and if

one finds an impediment one then has to find some

Nationwide(2) 202 4/12/91

means of distinguishing the impediments which will

be allowed and impediments which will not be

allowed.

Now, at that stage, Your Honours, the

applicant's approach seems to have been to invoke

the concept of reasonable regulation and, in our

respectful submission, that is an approach which

the Court should reject. First of all, for what it

is worth, the Court in Cole v Whitfield seems, with

some degree of relief, to have put the concept of

reasonable regulation aside as seemingly unworkable

in relation to trade and commerce and, in our

submission, that rather suggests that it is going

to be no easier to apply it in this context than it

was in relation to trade and commerce.

Secondly, if one says that an impediment to

intercourse is bad unless it amounts to reasonable regulation, there is some danger then of this test in relation to intercourse swallowing up the Cole v

Whitfield test - and I think that has already been alluded to - because almost any trader could

probably, in any law that arguable came within the

Cole v Whitfield test, find some impediment and he could, it would seem, bypass the Cole v Whitfield

test by saying, "Well, here's an impediment to my intercourse and now I want to argue about whether

that is reasonable regulation".

DAWSON J: Well, that is why I asked you did you

differentiate between goods and people, because

there would not be, would there? I mean, if there

is some impediment in relation to his goods, it is

unlikely that there would be any impediment in

relation to his person, and I thought that was the

way in which you were overcoming that problem.

MR DOYLE:  I may not have answered adequately, Your Honour.

If the impediment to the goods does not involve any

impediment to his movement or communication across

the border, then it falls to be tested solely

according to Cole v Whitfield.

DAWSON J: Yes.

MR DOYLE:  But if it is an impediment to his goods, such as,

"No one is to bring a suitcase into the State",

then that is a law operating on goods which, we

would acknowledge, imposes an impediment to the

thing protected by section 92.

DAWSON J: That is because the suitcase is attached to his

person, but if "No one shall bring tobacco into the

State", you would say that that, for relevant

purposes, does not involve intercourse, it

involves - - -

Nationwide(2) 203 4/12/91

MR DOYLE:  Yes, we would, that is right. There is no

intercourse. That is not an impediment to

intercourse.

DAWSON J:  The man who would have brought tobacco in is free

to come and go.

MR DOYLE:  Yes, because unless one elevated tobacco to the

status of a staple of life then, we would say, one

cannot draw out of that any impediment to

intercourse. But where our test is, on one view,

fuzzy but, in our submission, appropriate is going

back to the suitcase example, that legislatures

cannot in a disguised way by operating on goods, in

effect, impose an impediment to the protected

thing: movement across the border and escape

scrutiny. We say such a law will be scrutinized

under our test and the question will be, "What is

its object?", and then you look at the impediment
which it imposes to the protected thing, the

movement, assuming there is an impediment, and

asks, "Is that proportionate to the object being an
object other than to impede the movement?".

So, our second criticism of reasonable

regulation is that there is a danger then of this

test swallowing up the Cole v Whitfield test,

although I have to acknowledge we cannot make too

much of that because one could say that also there

is a danger on our approach of swallowing up the

Cole v Whitfield test. But, in our submission, the

main criticism of reasonable regulation is that in

the end, really, it seems to come back to a notion

of individual liberty, and if the whole object of

section 92 is to protect movement across the

border, to bring into the issue a test which is

redolent of the notion of free speech as such, is

to send the Court, in our submission, simply down

the wrong track.

McHUGH J: But it is more than movement across the border,

is it not, it is the movement across the border to

sell goods or communicate with people?

MR DOYLE:  It does not matter what it is for, it is

protected, simply, as a right to move across the

border for whatever purpose.

McHUGH J:  Where does a case like North Eastern Dairy

Company stand now since Cole v Whitfield? .....

MR DOYLE:  Could Your Honour be a little more specific at

what aspect of it?

McHUGH J:  The fact somebody wants to take milk into Victoria to sell?

Nationwide(2) 204 4/12/91

MR DOYLE:  Your Honour, in our respectful submission, if we

take the simple example, the travelling salesman

going from Victoria to South Australia and because

of a South Australia law he will not be able to

sell his goods. That law will be scrutinized only

under the head of protectionism because taking away

someone's motive for crossing a border is not to

impede, in any way, his right to cross the border,

and so that sort of law is scrutinized only in

relation to protectionism and, in our submission,

poses no impediment at all to the right to move
because we distinguish, as I have said, the motive

for making the journey from the journey itself.

Now, again, as a matter of caution that is not

to deny that some law, again, might not be dressed

up to look like that, and on closer examination be

found in fact to impose an impediment, but in our

submission if the effect of the law is, simply, to

take away the motive for the journey there is no

impediment there to intercourse.

DAWSON J:  You really put the proposition that free trade is

different to free movement, they are different

concepts?

MR DOYLE:  Yes, entirely, Your Honour, quite different

concepts but, understandably, in their federal
context wrapped up in the one section and dealt

with, understandably, again, by the one compressed

set of words but in each case a set of words that

has to be expanded by saying, "Free from what?" and

in one case, "Free from protectionist laws"; in the

other case "Free from impediments to movement of

communication across the border", and that latter one then splits into two: impediments in term and impediments in effect.

And, Your Honours, in our submission, we would

submit, the fatal flaw in reasonable regulation

really emerges from the applicant's own outline of

submissions. If Your Honours could just go to that

for a moment on page 4, subparagraph (d) that:

The communication of any information across

State borders ..... should be treated ..... as

free from all restrictions upon its content

save those which are necessary for the

reasonable regulation and adjustment of the

competing interests of people in the community

at large.

Now that, really, in our submission, sounds very

much like saying, what laws are going to be

necessary to enable all to exercise the liberty?

In our submission, very close to the approach so

clearly articulated by Sir Garfield Barwick in a

Nationwide(2) 205 4/12/91

number of section 92 cases dealing with trade and

commerce.

In our submission, that simply has nothing to

do with what section 92 is about. Section 92 is

not about making sure that my right of free speech

does not unduly intrude upon your interests or
rights. Section 92 is simply about making sure

that I am able to communicate across the border.

So what the applicant has put there, in our

submission, highlights as clearly as one can the

distance the applicant moves from the basic concept
of section 92.

With respect, we would make a similar criticism, just to show we have got enemies on both

sides of the argument, of the Commonwealth concept
of reasonable regulation. If Your Honours would

look at that in the outline of submissions for the

Commonwealth, paragraph 10 on page 6 uses the term

"reasonable regulation", and then paragraph 11

outlines the factors.

In our respectful submission, despite the

skill with which it was put by Mr Jackson, when one

looks at that, in my respectful submission one is

left with the very distinct impression that one is

simply being asked to decide whether, in some

general and, we would submit, somewhat vague way,

is this a good law, is it a sound law?

That is really the sort of issue that those

questions pose to one, and again one needs only to
think about what is in the debates and then look at
those questions or leaders to see once again the
distance that the test has moved from anything that

section 92 was dealing with. So for those reasons,

Your Honours, we submit that while you do start

with an impediment, to then qualify the test by
saying "Is there reasonable regulation?" is to take

the Court down the wrong track.

Likewise, in our submission, a test which is

based on discrimination is not going to be

satisfactory, because a law could apply quite

uniformly to intrastate movement and movement

across borders. It may have no discernibly

different effect on the two, and yet, in our

respectful submission, it could well be in the end

offensive to section 92, but at least, in our

submission, one can visualize laws which should be

scrutinized by the Court to see whether they are

offensive.

Your Honour Justice McHugh, in our submission,

gave a very good example with the law:	no journey
in excess of 100 kilometres.	The example we had in

Nationwide(2) 206 4/12/91

mind was a law requiring a permit for any journey

in excess of 50 kilometres. That operates in no

different way on local and across border journeys.

Any journey of more than 50 kilometres will be

similarly burdened.

So there is no discrimination in terms, there

seems to be none in effect, and one cannot even say

that interstate journeys are characteristically

long journeys, because in many States in Australia you can make just as many intrastate long journeys as well. In our respectful submission, the problem

of a discrimination test is that such a law would

seem to fall right outside the test and never be

scrutinized, and yet one can see how such a law

could in effect and in truth really subvert

section 92 if not subject to scrutiny.

So, Your Honours, we would submit those

approaches are unsatisfactory, and that is the

basis upon which we take the approach once one

moves from laws operating directly on the protected

thing. On that basis we are led to the approach

which we outline in paragraph 16 of the outline,

and that, as Your Honours will see, is borrowed

really from the approach taken to protectionist

laws as expounded in Castlemaine Tooheys Ltd v

South Australia.

So we start with the question, "Is there an impediment in fact?" Then we say, "Has the law got

some object other than to impede the movement

across the border?" If it has, then you say, "Is
the impediment which the law imposes
disproportionate to that other object?" If it is

disproportionate, then the law fails, its purpose

in that way being identified as to impede. If it

is not disproportionate, the law stands.

DEANE J:  Does that mean, Mr Solicitor, that if you had a

law which said no one in New South Wales can move

at all, but if he reaches the border he is free to

cross it, there would be no infringement of the

freedom of intercourse guaranteed by section 92?

MR DOYLE:  I think, Your Honour, we would submit that there

probably was. It is difficult as examples, but in

our submission the first part of the law would

seem, in a real sense, to be an impediment to the

crossing of the border by making it more or less

impossible to get there.

DEANE J:  No.

If the law made clear that its sole intention was to stop all movement in New South

Wales, but if somebody happened to reach the border he was quite free to pass over it, it would come

squarely within your paragraph 16.

Nationwide(2) 207 4/12/91

MR DOYLE:	Yes, well, I do not know whether I am -
DEANE J:	It would make a mockery of section 92.
MR DOYLE:	Yes, I agree, Your Honour, and my instinctive

reaction and submission is to say that such a law

does, notwithstanding what I call the saving bit of

it, pose an impediment to movement across the

border, because presumably it postulates that

anyone who is headed for the border can be stopped

and told, "Well, as we have caught up with you we

are going to stop you getting there".

DEANE J: But assume really there is no care at all about

getting rid of people, the object of the law is

simply that while they are in your jurisdiction you

keep absolute control of where they are.	It would
come within your 16 but it would stop all
interstate intercourse.

MR DOYLE:	That is the sort of law which we intend to catch within our 16, Your Honour, and I think all I can
do is repeat my submission that - - -
DEANE J:	Well, I was leading up to querying whether the

"such" before the last "movement" in paragraph 16

should really be there. Do not let me lead you

into a quick answer, but I was just wondering

whether - - -

MR DOYLE:  I was not going to, Your Honour. Perhaps I was

thinking of whether I could avoid answering at all.

The reason it is there, Your Honour, is that

in a time of severe energy shortage, restrictions

may be imposed on movement by vehicles, and we have "such" there because the object of such a law would

be, in our submission, not to impede movement
across the border but simply to impede movement

generally to conserve energy.

DEANE J:  But there the object is to conserve energy. The

impeding of movement is a way of achieving the

object. The object is not to impede movement as

such.

MR DOYLE:  Yes, I accept that, Your Honour. But in the

example Your Honour gave me, if I have understood

the example aright, the object seems to be simply

to impede movement, and it may be, Your Honour - I

will have to give a qualified answer and say that

what Your Honour puts to me indicates that the

"such" perhaps should not be there, as it were,

universally, and that some refinement is necessary to distinguish laws which have an object unrelated

to movement and then laws the object of which is

Nationwide(2) 208 4/12/91

movement. But I am not really in a position, I am

afraid, to give a fuller answer than that.

So, Your Honours, on our approach then, if one has a law which on its face makes no reference to

interstate movement, is appropriate to an object

other than impeding "such" - and I will now put it

in inverted commas - movement, but has the effect

of imposing a burden on that movement, then one has

to consider what is the purpose of the law and look

at the impediment and the relationship between the

impediment and the object which one identifies.

And I have already given the example I was going to give, that of the law, which in a time of energy shortage, puts a limit on journeys.

Now, it could be said that our test of an impediment is so wide that it will catch too many

things; on the other hand, in our respectful

submission, the problem is that if one does not

have a test with a relatively wide reach, laws are

going to escape scrutiny altogether, which clearly

could be offensive to the purpose of section 92 and

the answer we would make to those who say the test

is impossibly wide in its reach, because too many
things can be an impediment, our answer is to

submit that many such things will quite easily and

on a moments glance, pass the test and that the

merit of it, if there be any merit in the test, is

that the scrutiny at least is over a wide range,

even though in most practically encountered

situations, the scrutiny will be satisfied.

There is perhaps one other point, Your Honour, which I would make in support of our approach,

because it can be said, well on our approach then
in a time of severe energy crisis, people can be

stopped from crossing the border, and we say, yes

they can by laws which are general in their terms,
because that is the best way, on our approach, of

resolving this problem of how to grapple with the

generally expressed laws. But people may say in

answer to that, but is there not an absolute right

to cross the borders. In our submission, there is

no absolute unqualified right to cross borders and

section 92 was not intended to create any such

right, and although I use the - - -

McHUGH J:  By your test, Gratwick v Johnson would have to be

decided differently today, would it not?

MR DOYLE:	No, Your Honour; the same, we would submit, because in Gratwick v Johnson, what they prohibited
was only interstate journeys.  Had in
Gratwick v Johnson the law been expressed generally
and in wartime said, anyone needs a permit to get
on the train, then it may well be decided

Nationwide(2) 209 4/12/91

differently, because one could see then a rational

connection with movement of troops or conserving of

railway stock. So on our test, we would submit

both Smithers and Gratwick would be decided in

exactly the same way.

But Your Honours, just back to that point,

that an objection to our approach may be, as I have said, that it does mean that in some situations you

can be prevented from crossing the border and it

might be said, rhetorically, is there not in truth

an absolute right to cross the border. In our

submission, there is not any absolute unqualified

right and could I illustrate it this way: if in

South Australia a law were enacted making it an

offence to trespass on private property, then

assume that up and down the border most of the land

is private property, there in fact is a restriction

to any absolute unqualified right to cross the

border, and in truth even now, absent such law,

technically you do not have the right to walk

across the border on to private land, and so again
it introduces a misleading element to conduct the

debate on the assumption that there is some

absolute unqualified right to cross. The minute

one thinks about it, one realizes that in truth

that proposition cannot be sustained.

Your Honours, I should, just to illustrate the

way we see our test working, give the Court a

couple of other examples. First, if one assumes a

law which prohibits a person entering South

Australia if the person is infected with cholera,

on our submission, such a law is invalid because it

denies the right to cross the boundary.

Next, assume a law which requires a person to

submit to a medical test before entering South

Australia. In our submission, such a law does pose

an impediment to entry and probably would not be

valid because if you cannot keep people out if they

have cholera, query whether it is reasonable to

make them submit to a medical test.

We do not pin ourselves to the actual outcome

of the case. We say that law would be scrutinized

and may well not be valid because it is an

impediment and, in particular, it is not an

inspection law within section 112.

On the other hand, assume a law which provides

that any person found in South Australia with

cholera has to go and reside at a quarantine

station and assume, further, that in the other

States of Australia there is no such law and that

cholera sufferers are free to live in the

community.

Nationwide(2) 210 4/12/91

On the face of it, such a law is directed to a

legitimate object which has nothing to do with impeding movement of individuals from State to

State. In our submission, that would seem to be

so, even if there were hardly any cholera sufferers

in South Australia and lots of people suffering

from cholera in other States.

In our submission, such a law then does not

impose an impediment to entry into the State but,

even if there is an impediment, and the law falls

for scrutiny under our test, one then asks whether
the impediment, such as it is, is reasonable
proportionate to the object of protecting the
health of the people of South Australia; and does
the law have as its purpose, in truth, discouraging

of sufferers of cholera from coming to South

Australia. Now, difficult questions of judgment at

times may arise but, in our submission, they are

going to be no more difficult than arise under the

Cole v Whitfield test.

Another area which seeks to illustrate the operation of our test is a law dealing with the

means of moving from one State to another. Assume

a law which prohibits a person bringing in to South

Australia a motor vehicle of more than a certain

weight or more than a certain engine capacity or not having certain particular lights on it. One

possibility is that the law might be found to be
protectionist because its object might be,

conceivably, to keep out of South Australia

vehicles made in another State in competition with

vehicles made in South Australia.

But if we put that aside, then, in our submission, again, the approach is to say, "Well,

this doesn't operate directly on the protected

thing, the right of the individual to cross the

border, but it clearly operates on one of the

normal concomitants of that movement and, clearly,

could be an impediment to that movement." And so,	again, the law falls for scrutiny under the second
stage of our test and one looks at the object of the law, be it preserving the roads or be it road
safety, and then the impediment, and the proportionality of the impediment to the object,
and so, once again, the law has to be
characterized.

Another similar example, and this one I have

already touched on, Your Honours, is one which

prohibits the bringing into South Australia the

things which people are likely to bring with them; for example, fruit, plants, pets, household goods,

perhaps clothing, unless fumigated. Once again,

that law does not operate directly on the protected

Nationwide(2) 211 4/12/91

thing. In our submission, it falls for scrutiny

under the second stage of the test and, once again,

one, in some of those cases, may say, "Well, the

law stopping a person bringing in household goods is an impediment. You might say the law stopping

people bringing pets in isn't." But the first

assessment is: is there an impediment? And then,

if there is, one goes through the process of

scrutiny that we have outlined.

So, Your Honours, in our submission, we reject

the approaches adopted by others for the reasons

indicated and we submit that this approach will, by and large, work satisfactorily and does achieve the

object of the section. And, in our respectful

submission, the two tests, our test and the Cole v

Whitfield test, are to be applied cumulatively in a

case where you have interstate trade which does

also involve intercourse; that is, movement of a

person or communication between persons and across,

in each case, a border.

And so, just to give one example of that,

South Australian law - because, as Your Honours

know from Castlemaine Tooheys we are very concerned

about conserving things - but the law in South

Australia that says, "There's to be no bleached paper in newspapers or circulars.", now, first of

all, that would seem to impact on trade and

commerce and, on our approach, would have to pass

the protectionism test in relation to a newspaper

proprietor. But if it passes that test, in our

submission, the further test we pose can then

meaningfully be applied to the newspaper publisher,

assuming that when he sends his papers across he is

engaged in intercourse.

It can be applied in relation to the

contributor to the newspaper, assuming as we are

prepared to assume that he engages in intercourse

through the medium of the newspaper. But it can

also, in our submission, meaningfully be applied to

a person who compiles a private non-profit journal

and circulates that across a State border.

There is simply no need, in our respectful

submission, to assign activity exclusively to

either the trade basket and say, then, the law is

tested only under protectionism, or exclusively to

the intercourse basket and say, the law is tested

only under the test for intercourse. In our

respectful submission, it is actually difficult to

understand how you could meaningfully, in fact,

work through such an approach. In our submission,

the only approach is to apply the tests

cumulatively.

Nationwide(2) 212 4/12/91

Your Honours, most of what I have said relates

to movement because it is easier to give meaningful

examples in relation to movement. Could I turn then briefly to communication. We have already

made the point that, in our submission, there is

nothing in the debates to suggest any concern about

communication across the borders as such, but we
accept that it is embraced by the term

"intercourse".

In relation to communication we also

acknowledge that the approach which we take is more

difficult to apply, because it is difficult to

separate communication from its concomitants in a

way which one can do with movement, and it is also

difficult to separate the notion of communication

across a boundary or border from its impact or

operation at the place of receipt.

Perhaps I should indicate, at that point, that

we would respectfully differ from the approach

which Your Honour Justice Dawson took in argument

yesterday. In our submission, when a written item

is sent from New South Wales to Queensland,

intercourse across a border does take place, and it

is not simply a case of intercourse within

Queensland where the thing is received. That may

be of no great moment in the overall scheme of

things but, in our respectful submission - - -

DAWSON J: It depends on what the intercourse is in. If it

is intercourse in ideas, which is what we are

talking about, then it is only in Queensland, but

you are restricting it to the communication itself?

MR DOYLE:  Yes, we were, yes.

DAWSON J: But that was not how it was restricted in

argument. The communication embraced the idea, and

the idea is only communicated in - - -

MR DOYLE:  I am sorry. I did not understand fully what

Your Honour was saying yesterday and if Your Honour

was, as it were, meeting that proposition, then we
would not, in relation to that, dissent from what

Your Honour said.

Your Honours, we cannot actually think of any

practical examples likely to occur of laws

referring directly to communication across a

border, although one can construct them. It is not

so difficult to think of laws in relation to

communication falling for scrutiny at the second

stage, and a good example of such a law is that

encountered in Miller v TCN Channel 9. The law

there made no reference to communication across a

boundary and, in our submission, the approach which

should now be taken is to ask, having regard to the

Nationwide(2) 213 4/12/91

apparent object of that law, which was to regulate

the use of radio frequencies, a limited resource,

is the impediment which it creates to communication

across a boundary, the requirement to get a
licence, reasonably proportionate to the purpose or
object of regulating the use of the radio

frequencies? In our respectful submission, for the

reasons indicated by Your Honour Justice Brennan in

your dissenting judgment in that case, such a law
would appear likely to pass the test which we pose.

I should also indicate that our submission is that there the impediment is to channel 9, not to a

person who may seek to use channel 9 to send a

message across the border. The impediment which we

would identify is to channel 9 rather than to the

user of channel 9 and, in due course, one would

have to address the issue, although not here, of

what the position would be if there were a

government monopoly of those radio frequencies, but

one which was such that anyone who wanted to send a

message across the border could do so without any

significant impediment. Now, we do not accept

necessarily that one has the right to say, "I want

to myself send my message across the border", but

that is a question, perhaps, for another day.

The other point we would seek to make in

relation to communication, just to make this clear,
is that to have an impediment you do not have to
show some difference in the law of the State where

the message is received compared with the law of
the State where it originates. In our respectful

submission, there may well be identical State laws

or a uniform Commonwealth law which nevertheless,

in fact, constitute an impediment to communication

across a border. And so our test is not one that,

as it were, is brought into train only when

differing laws are identified. The other basic

point we would make on this aspect of the matter is perhaps the obvious one, that the relevant standard

is, of course, not free speech but freedom to
communicate across a border.	And as I said at the

outset, we acknowledge that our approach would give

little, if any, protection to the content of what

is communicated but, in our submission, the answer

to that is that that is not what section 92 was

about.

So, Your Honours, they are our submissions in relation to section 92. Before applying them to

the facts of this case in quite brief form, could I
make one or two points on the implied guarantee.

In our respectful submission, in the light of the

presence of section 92 there is simply no room for

an implied guarantee of freedom of movement or

freedom of communication from one State to another.

Nationwide(2) 214 4/12/91

Sect~on 92 is clearly the express statement on that

and, in our submission, one could not possibly

imply some overlapping or slightly wider guarantee

that moves into what I call the free speech area.

Nor, in our respectful submission, when one

looks at our Constitution as a whole and bears in

mind the significance of the American first

amendment not having been picked up, can one imply

in our Constitution some general guarantee of free

speech. In our respectful submission, history and

the structure of our Constitution argue strongly

against that.

McHUGH J:  Supposing you took the view that the Court was

wrong in placing the qualification on intercourse

in Cole v Whitfield, and having regard to the

debates of the convention, it is clear that

intercourse was commercial intercourse. Why would

not an implied guarantee of freedom of movement

then arise?

MR DOYLE:  It may well, Your Honour, for the very reasons

that Mr Parkes indicated in his opening remarks,

that central to Federation is the right to move

across borders and to communicate across borders,

and we would accept that if one did not read

section 92 in the way we did, if one read it as

relating only to trade, then the inference of some

implied right would perhaps be resistable.

So, Your Honours, to a large degree we in

truth accept what Justice Murphy said in Buck v

Bavone about the right of people to move freely

across borders being a fundamental right.	We
simply say it is there, it is protected by

section 92, and there is no room for implied

guarantees.

As to the more limited rights, that is rights to criticize subject to query reasonable

restrictions, the organs of the Commonwealth

Government or, perhaps more narrowly, the central

organs created by our Constitution, we adopt the

submissions put by the Commonwealth and simply make

the observation that in this case, it would appear
to be more a matter of the scope of the relevant

power rather than a case involving the existence
and then application of that much narrower implied
guarantee.

Your Honours, coming to the facts of this case then and conceding for present purposes that the

newspaper proprietor is engaged in intercourse

among the States, in our respectful submission,

what one has to do here is look at the law and ask

first of all what appears to be the object of the

Nationwide(2) 215 4/12/91

law. This is assuming that the law is within

power, a matter to which we address no submissions.

If one accepts the law is within power, then

clearly enough its object is to protect this

particular body which has been created.

DEANE J: Is that right? Is not its object to prevent all

communication of a particular kind? The motive for

that object is that by preventing all communication

of a particular kind, it will protect the

commission.

MR DOYLE:  Not in our submission. looking at the terms of that law, one can fairly In our submission,

say its object is to protect the commission.

DEANE J:  No, if you ask, "What is this provision intended

to achieve?", the answer is, "Its object is to stop

all communication of a kind which will bring the

commission into disrepute." If you ask why do they

seek that object, the explanation is that they

think the commission should be protected from such

criticism, that the direct object of the

legislation is to stop all such communication.

MR DOYLE:  Your Honour, I am content to proceed on that

basis because, in my submission, without wanting to

delay things by putting submissions against that,

however one looks at it, the object of the law is

not to impede communication across a border.

DEANE J:  No, but if you were to drop the "such" from your

paragraph 16, the result of this case would be the

opposite for which you contend if the

interpretation of subclause (2) that Mr Hughes

contends for is adopted.

MR DOYLE: Yes. It looks like I, perhaps, cannot escape

answering the question Your Honour put to me

earlier which I thought I had escaped answering.

DEANE J:  I think we could assume a negative answer.

MR DOYLE: Yes. Perhaps, Your Honours, I will content

myself with the cowardly course of saying one

applies to the law in question the test we have

outlined and that our interest being, in truth,

mainly the appropriate test and not the particular

outcome here. But again, with respect, I would

need a little more time to think about my answer to

that question Your Honour put to me before, and

while I am prepared to acknowledge that, in some

cases, one may need to remove the "such",

nevertheless, at the moment, it would not be our

submission that one removes it permanently and that

the test stands without it. And they are our

submissions if the Court pleases.

Nationwide(2) 216 4/12/91

MASON CJ:  Thank you, Mr Solicitor. Mr Solicitor for New

South Wales?

MR MASON:	I hand up an outline of our submissions. Together with the outline are copies of three cases
to which I will take the Court in the course of my
submissions, Your Honours.

MASON CJ: Yes, Mr Solicitor.

MR MASON:	Your Honours, we had not initially intended to say anything about the validity of the section
because we naturally have no interest in its proper
construction, but in view of the argument that was
advanced on behalf of the Commonwealth, it
suggested that it was a provision that operated without any relevant qualification in the matter of
truth or fair comment, or the like, we make the
submission that if that is its interpretation then
it is beyond the power.  We will come back, if we
may, to develop that very briefly in another
context, namely the reasonable regulation area of
section 92.

Your Honours, so far as section 92 is

concerned, the submissions on behalf of New South

Wales are basically supportive of the Commonwealth, with a departure, or a possible departure, simply

in the application of the relevant principle,

namely, we take the cowardly course of simply
saying query, whether if it is reasonable
regulation, it passes. Indeed, that query applies
even if the justification and fair comment are

defences. Naturally, in taking that position, we

would appear to differ from the stands taken by my

learned friends, the Solicitors for South Australia

and Victoria.

In support of the argument that intercourse

should be construed in section 92 as dealing solely

with intercourse other than in connection with

trade and commerce, we would seek to embrace the

understanding brought across from the American law

of the ambit of the expression "commerce", and

naturally commerce included trade in the American

law, and particularly the case of Gibbons v Ogden.

In the bundle that I have given to Your Honours at

page 2 there is a passage in Gibbons v Ogden in the

report at pages 188 and 189, that I would read, if

I may, as representing the American understanding
of the ambit of the expression "commerce", at 1900.

Just below the middle of the page:

The words are, "congress shall have power

to regulate commerce with foreign nations, and

among the several states, and with the Indian

Nationwide(2) 217 4/12/91

tribes." The subject to be regulated is

commerce; and our constitution being, as was

aptly said at the bar, one of enumeration, and
not of definition, to ascertain the extent of

the power, it becomes necessary to settle the

meaning of the word. The counsel for the

appellee would limit it to traffic, to buying

and selling, or the interchange of

commodities, and do not admit that it

comprehends navigation. This would restrict a

general term, applicable to many objects, to

one of its significations. Commerce,

undoubtedly, is traffic, but it is something

more - it is intercourse. It describes the

commercial intercourse between nations, and

parts of nations, in all its branches, and is

regulated by prescribing rules for carrying on

that intercourse. The mind can scarcely

conceive a system for regulating commerce

between nations, which shall exclude all laws
concerning navigation, which shall be silent

on the admission of the vessels of the one nation into the ports of the other, and be confined to prescribing rules for the conduct

of individuals, in the actual employment of

buying and selling, or of barter.

As the reference to commercial intercourse,

Your Honours, makes plain and as the facts of this

case make plain, because it dealt with the

intercourse and therefore the commerce of a person

plying his trade in a steam boat for hire, the

Chief Justice was stating the proposition, which

became generally accepted, that intercourse, being

commercial intercourse, was fully within the

expression "commerce". And, whilst we accept that

different conclusions, indeed wildly different

conclusions, could be drawn from that starting

point, the conclusion which we would invite the

Court to take is that when intercourse was added,

right from the beginning in contra-distinction to

quite late in the drafting history, it was intended	trade, and then trade and commerce was slotted in	have been outside trade and commerce in the
to pick up that form of intercourse which would page 2, that that approach gets some support from
laying section Sl(i) side by side with section 92. Your Honours, in paragraph 3 of our
submissions we seek to state our agreement, with
some slight supplementation and amendment, with the way the Commonwealth develops this as the preferred
course for construing section 92.
Your Honours, the principal matter that has engaged some discussion, particularly today, is the

Nationwide(2) 218 4/12/91

question whether or not one has to embrace within

this test, or even any other alternative test, a

notion of what can very loosely be called

reasonable regulation.

We would respectfully disagree with any

approach that would exclude that from a

constitutional protection of intercourse when

intercourse is seen, particularly, as extending to

non-commercial intercourse - we say extending

exclusively to non-commercial intercourse. And if

it is said that that will involve the Court being

drawn back into some of the difficulties of the

earlier law, or some ghosts that were perhaps

thought to have been laid to rest by Cole v

Whitfield or, indeed, into some political role, we

can only say, "Well, don't blame us, that's what

the Constitution has brought about in providing an absolute guarantee for intercourse" when, equally,

there was an intention, to take the most obvious

example, that people could not speed across the

border, they could not shoot bullets across the border - and bullets are goods, after all - and they could not, we would submit, quite clearly, bring diseased cattle or diseased persons across

the border, if it was appropriate to draw the line
there in point of quarantine.

We would submit that even if a State or federal law facially treated the border as the line

at which to say, "You shall not cross", then there

may be appropriate circumstances where that law

would be valid, the reason being, in adopting what

our learned friend, Mr Jackson, said, that the

ultimate criterion has got to be whether there is

an impediment upon the right of movement. And if

in truth, by limiting the movement of certain

persons or certain persons under certain conditions

you are furthering the free movement of all, then

it is implicit and directly implicit in the

constitutional guarantee.

To take up the example that was involved in

Miller's case, the right to send signals on the air

waves across the border, let it be assumed the

federal law simply said, "No one shall send a

signal across the border except on a licensed air

channel" for the simple reason that unless there

were such a regulation none would be able to enjoy

the liberty, it is appropriate to say that though
there might in that example be formal contravention

of a rule, nevertheless, there must be some other
criterion which brings about, we submit, the

obvious result that the Constitution would permit

that form of control.

Nationwide(2) 219 4/12/91

May we give some examples of what I have

described as facial discrimination but which, by reference to a reasonable regulation test, would,

in our submission, be valid, a law which said that

a fugitive offender can be arrested as he or she

left the State. That was an example, in fact,

given in Cole's case, at 393, and also given by

Mr Justice Evatt in R v Connare, (1939) 61 CLR 596,

at 624.

Another example would be a condition of parole of a person that said, "You can go at large but

under no circumstances leave the State". For the

same reason that Mr Justice Evatt in the passage

from Connare said the fugitive offenders law would

be valid that, in our submission, would be valid

simply because it marked the outer limit of the

State's effective jurisdiction. It being plain that the State would be expected to exercise its jurisdiction and, in appropriate circumstances, to

exercise it as at the border, then, in our

submission, the law would be valid though it

offended a formal criterion but saved because it

was a reasonable regulation. I am using that, of

course, as a very loose expression.

Another example would be the trespass to land

one which my learned friend, Mr Doyle, mentioned.

If it was a criminal offence to trespass on to

somebody's land, that law would be valid to protect

a person whose property was on the border from an

intrusion from his or her transborder neighbour. Another example, in our submission, would be a

genuine quarantine law. In our submission,

authority for that is found in Ex parte Nelson

(No 1), 42 CLR 209. Your Honours, we therefore

would join with the Commonwealth in submitting as
the preferred course, accepting what has happened

with the interpretation of trade and commerce,

relying in part upon the context of section 92

where the prime focus is the Cole v Whitfield

focus.

The opening words of section 92, the chapter

in which it is found suggests that one gives it its

free trade function as its initial function, but

obviously not as its exclusive function. As

Gratwick's case and the early case of Benson makes

plain, there are areas beyond the commercial area

covered by intercourse.	We say those are the only
areas.	One then applies to that form of

intercourse a test which has discrimination and

reasonable regulation as its integers;

alternatively, reasonable regulation alone.

Nationwide(2) 220 4/12/91

Your Honours, in the application of such a

test to this present law, we have at the bottom of

page 3 of our submissions given the Court some

references to American and other law which would

suggest that even a controlled law of scandalizing
the court is arguably beyond any constitutional
protection of freedom of speech, that whatever be

the common law as represented in this country by

Gallagher v Durack, other jurisdictions and other

courts have taken the view that the judiciary does

not require the protection given by what, in

effect, is a body of law that overlaps the law of

libel and which does not have the sort of strict

controls that the American law has which requires

there to be a clear and present danger before

scandalizing can become a contempt.

Your Honours, in Reg v Kopyto, 47 DLR (4th)

213, which starts on page 3 of the bundle, there is

a discussion of the legal principles in a number of

countries. It is a judgment of five judges of the

Ontario Court of Appeal, the leading judgment being

given by Mr Justice Cory, who is now on the Supreme

Court of Canada.

On page 6 of the bundle, page 219 of the

report, the offending article is set out, an

allegation by a lawyer that "the courts and the

Royal Canadian Mounted Police are sticking so close

together you would think they were put together

with crazy glue". And at page 223, page 7 of the

bundle, after referring to a number of learned

journal articles, His Lordship says, about point 2:

The legal writers argue that the basic

assumption embodied in the offence of

scandalizing the court, namely, that public

confidence in the administration of justice

would be undermined by comments that tend to

lower the authority of the court, is highly

speculative. The writers contend that an

intelligent and sophisticated public should

evaluate the merits of the comments rather

than the judiciary which, in effect, acts as

both prosecutor and judge. The commentators

take the position that the courts, like other

public institutions, should be open to lively

and trenchant criticism. The courts, they

say, do not need and should not have special

rules for their protection.

That last sentence reminded me of the debate that

is taking place, certainly in law reform circles,

about whether or not there should continue to be a

law of blasphemy. Does God need protection of the

law?

Nationwide(2) 221 4/12/91

There is reference to Bridges v State of

California and Mr Justice Frankfurter's comment

upon this as being an:

English "foolishness"

which had been put away in the 1900s; that being

the time of the last such prosecution.

On page 224 of the report, just to see the

structure of how the issue arose, the first
question was whether the words spoken by the

appellant were:

"protected" by the freedom of expression

clause set out in ..... the Charter -

and going over to the bottom of page 227 there is a

statement of the values of:

freedom of expression -

reference to:

John Stuart Mill -

that would be very well-known to the Court. At the

bottom of page 229, page 10 in the bundle,

His Lordship concludes that these words do fall

within the prima facie protection of freedom of

expression.

And then going over the page one sees the next

part of the test - and this is where the analogy
with the reasonable regulation principles comes

into play - His Lordship puts the question:

If the words are "protected" by section

2(b) of the Charter does the

offence ..... constitute a constitutionally

permissible limit on that protection? It is incumbent upon the Crown to

establish, on a balance of probabilities, that

the limitation on freedom of expression

imposed by the offence of scandalizing the

court meets the requirement of section 1 of

the Charter. That section reads:

The Canadian Charter of Rights and

Freedoms guarantees the rights and freedoms

set out in it subject only to such reasonable

limits prescribed by law as can be

demonstrably justified in a free and

democratic society.

Nationwide(2) 222 4/12/91

So that is, as it were, the test. Then there

is a discussion of United States law and how there

is no offence of scandalizing the court and how a

contempt conviction based on that would infringe

the protection of the Bill of Rights first

amendment.

At page 234 there is a reference to Australia

and Gallagher's case. Obviously the minority

judgment appealed to His Lordship rather than that

of the court. There is a reference to a

New Zealand case with the stress - and I am looking

at page 235 about ten lines from the bottom -

that there must be a real risk as opposed to a

remote possibility that the actions complained

of would undermine public confidence.

We can see therefore, in our submission, that in

one sense there is a bit of a spectrum.	The
Americans say "clear and present danger";	New

Zealanders "real risk"; the very broader notions

of scandalizing the court suggests that it does not

have to be any such high level of risk.

MASON CJ:  We will adjourn now, Mr Solicitor, and resume at

10.15 am tomorrow.

AT 4.16 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 5 DECEMBER 1991

Nationwide(2) 223 4/12/91