Nationwide News Pty Ltd v Wills

[1991] HCATrans 343

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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 TUESDAY, 3 DECEMBER 1991, AT 10.25 AM

(Continued from 16/4/91)

Copyright in the High Court of Australia

Nationwide(2) 65 3/12/91

MR T.E.F. HUGHES, QC:  May it please the Court, I now appear

in this matter for the applicant with my learned

friends, MR J.R. SACKAR, QC and MR G.O'L. REYNOLDS.

(instructed by Gallaghers)

MR D.F. JACKSON, QC:  May it please the Court, I appear with

my learned friend, MR M.J. WALTON, for the

respondent. (instructed by the Commonwealth

Director of Public Prosecutions) I also appear

with my learned friends, MR D.J. ROSE and

MR S.J. GAGELER for the Attorney-General for the
Commonwealth intervening. (instructed by the

Australian Government Solicitor)

MR H.C. BERKELEY, OC, Solicitor-General for Victoria: If

the Court pleases, I appear with my learned friend,

MR G.J. MAGUIRE, for the Attorney-General for the

State of Victoria intervening in the interests of

the respondent.	(instructed by the Crown Solicitor
for Victoria)

MR J.J. DOYLE, OC, Solicitor-General for South Australia:

If the Court pleases, I appear with my friend,

MS C.F. SARRE, for the Attorney-General for the

State of South Australia to intervene also in the

interests of the respondent, but our submissions

will be confined to the issue of section 92 and the

question of any implied guarantee of freedom of

communication or movement. (instructed by the

Crown Solicitor for South Australia)

MR K. MASON, QC, Solicitor-General for New South Wales: If

the Court pleases, I appear with my learned friend,

MR L.S. KATZ, on behalf of the Attorney-General for

New South Wales intervening on behalf of the

interests of the respondent. (instructed by the

Crown Solicitor for New South Wales)

MR B.T. DUNPHY:  May it please the Court, I appear on behalf

of the State of Queensland intervening in the
interests of the respondent.	(instructed by the
Crown Solicitor for Queensland)

MASON CJ: Yes, Mr Hughes.

MR HUGHES: 

Your Honours, I understand, will have received

the rather expanded summary of our argument on this
stated case and my learned friends who appear for
the respondent and the various interveners have
also received it in advance, so it need not be

distributed.

Your Honours, in this Court's decision in

Cole v Whitfield, there was definition of those

activities which fall within the concept of

interstate intercourse, but what was left open,

naturally enough, having regard to the issues in

Nationwide(2) 66 3/12/91

that case, was the extent of the protection

accorded by section 92 to activities which are in the nature of intercourse among the States, while not being necessarily within the concept of trade

and commerce among the States.

McHUGH J:  Mr Hughes, having regard to paragraph 13 of the

stated case, has section 92 any longer got anything

to do with this case?

MR HUGHES:	Yes, it has, Your Honour, because while the prosecution relies upon the publication of the
article in question in New South Wales, the facts
revealed by the stated case show that the newspaper
had an interstate circulation, and we say that
section 299(l)(d)(i) under which the charge is laid
is invalid in its application to interstate
intercourse, that is to say, interstate
communication of ideas per medium of a newspaper,
and that unless that section, or that particular
provision in section 299 under which the charge is
laid, can be severed so as to have a partly valid
operation in relation to intrastate activities, it
fails as a whole.

So that a point which, if I may go back to the

earlier hearing, was raised by Your Honour

Justice Brennan needs to be dealt with by me and

will certainly be dealt with by my learned friends in relation to the section 92 argument and that is

the question of severability and, as Your Honours

will have seen from the outline, we intend, of

course, to canvass that question. But that is the

answer I would give to Your Honour Justice McHugh.

Now, perhaps it will be convenient at the

outset if I summarize some of the salient facts

that emerge from the case stated by Your Honour the

pages. It was published in The Australian	Chief Justice. The article is in photocopy form annexed to the stated case, and it extends over two	newspaper of 14 November 1989, the author was the
late Maxwell Newton, and for present purposes the
content of the article, so far as it bears upon the
charge laid under section 299, is set out
conveniently in extract form on page 8 of the case
stated book. I doubt if it is necessary for me to
read it, Your Honour. It can be characterized as
an article containing very strong criticism of the Industrial Relations Commission, very strong
indeed, and criticism such as would clearly enough,
it may be thought, be calculated in the sense of
likely to bring the commission into disrepute in
the sense of discredit. It would be open to say that the article was defamatory of each and every

Nationwide(2) 67 3/12/91

member of the commission. That is the starting

point.

It appears from paragraph 3 of the stated

case, or perhaps starting to read on page 1, that

as at the time of publication there was an

arrangement between Nationwide News and the late

Mr Newton, the ingredients of which are set out in

the lettered paragraphs on page 2. He -

was a free-lance journalist.

Every week he would compose a column for the

newspaper, The Australian, for publication in it.

He composed it in the United States. He sent it by

facsimile transmission to Nationwide in Sydney.

(e) the article would then be published

throughout each and every State and Territory

of the Commonwealth -

and in the various ways described elsewhere in the

case.

(f) at all material times Mr Newton knew that

his article would or might be published in The

Australian throughout each and every State and

Territory of the Commonwealth of Australia and

composed his article for that purpose.

The case then proceeds to describe the various steps in terms of technology and delivery of the

way in which the newspaper was produced for

publication in the various States and Territories.

If I can summarize it very briefly: after receipt

of the content of Mr Newton's weekly article, the

article would be treated in a machine called a

pressfax and that would, by means of electrical

impulses, produce a sheet.

Then that sheet would be used, again by

electronic means, to send the whole newspaper

containing the article to various points in New

South Wales and the Australian Capital Territory,

but the means of facsimile transmission were used

to convey material to places in Adelaide, South

Australia to advertise in newspapers, to Western

Australian newspapers in Perth, to other newspaper

companies in Queensland, where the paper would be

produced from the material sent by facsimile

transmission, so that the newspaper would be got up

and then distributed, for example, from Adelaide

over to Broken Hill, from Melbourne to Albury, from

Melbourne to Tasmania and, I think I mentioned earlier, from Sydney to Perth by facsimile

transmission, then the paper printed there and

distributed in Western Australia.

Nationwide(2) 68 3/12/91

The actual process of sale was done in this

way. In the case of, for example, copies of the

paper sent from Adelaide to Broken Hill, Advertiser

newspapers would sell to newsagents in Broken Hill

as agent for Nationwide News. The newsagents would

then resell by retail to members of the public. In the case of Queensland, the facsimile

transmission which was used to reproduce the papers

in distributable copies in Brisbane were sent

thence by an agent of Nationwide News to the

northern rivers district of New South Wales, sold

by the company that did the printing in Brisbane as

agent for Nationwide News to newsagents, who then

on-sold by retail to members of the public. In the case of Tasmania, as I think I said

earlier, the papers were sent across from Melbourne
to Tasmania and sold to the newsagents by the
Melbourne company, Southdown Press, as agent for

Nationwide News, and the newsagents then on-sold. In Albury, the position was slightly different

because the newsagents did not purchase from

Nationwide News. Nationwide News, through its

Melbourne agent, sold the newspapers distributed in

Albury to members of the public directly and the

newsagent acted as a commission agent collecting a

commission on the sale. So that was broadly the

method of distribution, but it is set out in more

detail, of course, in the various paragraphs of the

stated case.

So there was, in relation to the relevant

issue of the Australian newspaper, a wide network

of interstate distribution. It would be said,

consistently with views expressed in this Court in

the NEDCO case and in Permewan Wright v Trewhitt

that the sale - so far as it is necessary to say it

- that the sale by the newsagents, for example in

Hobart or in Broken Hill or in the northern rivers

area of Queensland, was part of an interstate

operation, whether of trade, commerce or

intercourse, or all three, because the first sale

by an importer, consistently with those cases,

would appear to be within the protective umbrella

of section 92.

Against that factual background, and against

part of the background that I have already

mentioned as to the nature of the article, one

examines, first of all, I suggest, the nature of
the prohibition effected by the relevant paragraph of section 299(1). That has been dealt with by my learned friend, Mr Sackar, in the argument last

April and I would hesitate to plough again over the

ground that he covered. ·

Nationwide(2) 69 3/12/91

Perhaps just to set this part of the argument

in its particular context, I would submit that the

prohibition contained in the relevant paragraph of

section 299 goes substantially beyond the

protection afforded to judicial tribunals by the	law of contempt so that it proscribes any use of
words orally or by writing which brings discredit,
that being the accepted meaning of disrepute,
according to Bell v Stewart, upon the commission or
a member. So it would cover personal criticism as
well as criticism of a member in relation to his
office. That ground has been covered and anything
further that I need to say can be reserved until
reply. But I merely mention it to get the setting.

It is, of course, also part of our submission

as to the meaning of the section that it defines the actus reus and it is not possible - and this

will be the subject of further argument,

obviously - to read into the section some

implication that a defendant charged under the

particular paragraph has a defence based on fair

comment or truth.

Now, the first question that arises, in our

respectful submission, against that background is as to the nature of the activity involved in this

interstate, as well as intrastate, distribution of

The Australian newspaper, does any of that activity fall within the concept of either interstate trade

and commerce or interstate intercourse or both?

And at the outset, Your Honours, I would try to make a very simple analysis, because it may

possibly be helpful, of just what is involved in

the publication and distribution of a newspaper

such as The Australian. This sounds simplistic,

but it is a starting point. The newspaper is the

medium; it is the medium for conveying information,

either factual or by way of comment; the expression

of ideas and the publication of facts.

As the medium, a newspaper of course is an

article of commerce; selling the newspaper is

trade; to the extent that it is sold in interstate distribution, it is trade among the States, but it is important, in our respectful submission, in

considering the possible application of section 92

to this case, to bear in mind as well, as a most

important ingredient in the situation, that the

newspaper conveys messages, ideas, factual or by

way of opinion. So one considers the operation of

a newspaper in the context of an environment of

Australia wide publication on those two levels.

Now the two levels may in some ways be the same;

the sort of publication to which I have alluded is,

from the point of view of the newspaper proprietor,

done in trade and commerce, but it is also, from

Nationwide(2) 70 3/12/91

the viewpoint particularly of the inventor of the ideas, the propagator of the ideas in the form of his article, Mr Newton, intercourse, because this Court has said in Cole v Whitfield, with respect,

with perfect clarity, that intercourse includes

communication; communication of material across

State boundaries, which is what happened here.

McHUGH J: But in a business context there is some

difficulty in making the distinction, is there?

Take a prohibition on an application for an

interstate lottery, now what is that? Is it

regarded as trade and commerce and, therefore,

falls under the Cole v Whitfield test or is it to

be regarded as intercourse and that some other test

applies?

MR HUGHES:  We would say that, probably, if Your Honour is

thinking of Mansell v Beck - - -

MCHUGH J: Yes.

MR HUGHES:	- - - it is probably all three.
McHUGH J:	What is the test that is a freedom?
MR HUGHES:	The test of freedom, which I come later in my

presentation, is that where you are dealing with the

dissemination of ideas including their dissemination
across State boundaries in the way that it happened
here, the test, on the assumption that that is
intercourse, even though it be as well trade and
commerce, the test for the application of section 92
quoad intercourse, namely the conveyance of the
ideas, is reasonable regulation in the interests of

adjusting diverse interests in the community, and

that means, we would venture to say putting it

broadly, the sort of regulation that is established
by law, the law relating to defamation, the law

relating to sedition or the law relating to contempt

of court.

This Court in Davis's case, Davis

v Commonwealth, to which I was going to come later,

that was the case about the Centennial Authority

Act, three Justices of this Court, Your Honour the

Chief Justice and Justice Gaudron included, I have

just lost the particular passage, I think it is at

page 100 of the report, expressed concern about the

impingement of that particular legislation on

freedom of speech in that it proscribed, in the

most drastic way, the use of words which were in

common use. So there is, we would submit, a

legitimate interest - public interest - in the

preservation, subject always to laws that enact

reasonable regulation, of the very cherished right

Nationwide(2) 71 3/12/91

of free expression of ideas in the wide Australian

community.

DAWSON J:	Why do you say it is a communication of ideas across the border. Communication takes place when
someone buys a newspaper and reads it?
TllPF
MR HUGHES:	It is not quite as simple as that, with respect.

DAWSON J: Well, take the directions on the packet of some

product. Is that protected as intercourse?

MR HUGHES: It may be.

DAWSON J: Well then, most articles of commerce are also

intercourse.

MR HUGHES:  Yes, but quoad their character as intercourse,

they are entitled to a degree of protection that is not appropriate, having regard to Cole v Whitfield, for things that are just article of commerce, like

livestock or - - -

DAWSON J:  I do not understand why the intercourse is

amongst the States. When I buy my newspaper the

intercourse takes place, not before, and that takes

place where I buy my newspaper and read it.

MR HUGHES:  Yes, and in the case of a newspaper that is

imported - - -

DAWSON J:  The article of commerce is imported, but the

communication does not take place at the time the

commerce takes place.

MR HUGHES:  The communication takes place, on the facts in

this case, Your Honour, in several ways. First of
all there is the transmission by facsimile method

of the content of the newspaper page by page from

Sydney to, for example, Adelaide.

DAWSON J: That is a commercial transaction.

MR HUGHES:  Yes, but it is also the communication of ideas.

DAWSON J:  No, it is not. The person who gets it at the

other end might never read it.

MR HUGHES:  No, but he may.

DAWSON J: Well, if he does he reads it in the same way as

someone who buys a newspaper and reads it in

Adelaide.

MR HUGHES:  And that is intercourse which starts in Sydney

in this case, and ends up with the reader.

Nationwide(2) 72 3/12/91

DAWSON J: It is not entirely apparent to me.

MR HUGHES:  The reader buys a newspaper which is sent into

the State in which he is for the purpose of

conveying the ideas in the newspaper to that

reader.

DAWSON J: But he conveys them by selling a newspaper which

is an article - - -

MR HUGHES:  By selling a newspaper.

DAWSON J: Yes.

MR HUGHES:  And the sale, consistently with authority in

this Court in such a case as I am postulating and

as is postulated in the case stated here,

Your Honour, is a sale in the course of interstate

trade, and we simply say that - - -

DAWSON J: Well, ultimately then it is intercourse between

me and Mr Newton in, wherever he is, the United

States on your argument.

MR HUGHES: 

Yes indeed, ultimately so, but there are

intermediate steps, Your Honour. There are
intermediate steps which are of considerable

significance. And indeed - I was corning to

this - but Your Honour prompts me to say this:

given that in Cole v Whitfield this Court

criticized the production cases, the margarine

cases and the egg cases which, as Your Honours will

all recall under the old test failed to attract the

protection of section 92, they failed because it

was held, applying the criterion of operation test,

that manufacture, even though an essential

precondition to interstate trade, was not part of

that trade.

One could read, I submit with respect, part of

the judgment of the Court in Cole v Whitfield as discarding that sort of distinction. So that it

might well be said that if, as was the case, the

late Mr Newton in New York wrote an article, sent

it to Sydney for interstate dissemination in the

form of a page or two in a newspaper, he was

himself engaging in interstate intercourse, as was

the publisher, the publisher in Sydney who sent the

facsimile material to Adelaide, Brisbane and

Melbourne. That is the way I would seek to answer

Your Honour's question.	I am sorry it may have
taken too long.

McHUGH J:  Does it help you to look at this way, that the

commercial transaction is the sale by Nationwide to

the newsagents. That is commerce.

Nationwide(2) 73 3/12/91

MR HUGHES:	Yes.
McHUGH J:	The intercourse is between Nationwide and its

readers interstate.	I do not know whether you can
make that - - -

MR HUGHES: That is the distinction that I was endeavouring

to make, but Your Honour has put it in more

felicitous language. The intercourse is the

transmission to the readers in another State by

Nationwide of Mr Newton's ideas. That is a

communication that takes place across a State line.

McHUGH J:  I do not know whether it is a valid distinction,

but it just occurs to me at the moment.

MR HUGHES:  Yes. We say it is. It is a valid distinction

which applies to newspapers, which in a sense are a

commodity, an article of commerce, but a very

special article of commerce because of what they

do. They are the medium for conveying messages.

The messages, if they cross the State lines, are intercourse within the meaning of section 92.

McHUGH J:  Mr Hughes, if you look at the first amendment

cases, at one stage the United States Supreme

Court flirted with distinction between commercial speech and non-commercial speech for first

amendment purposes.	I cannot recollect where it
has finished.

MR HUGHES:  I have not looked at the first amendment cases,

I have looked at the fourteenth amendment cases, or some of them, Your Honour, and I will come to them

on another aspect of my argument if I am given

leave to do so.

An important step, as it may be thought, in

our argument - it is set out in our outline - is to

suggest that the Cole v Whitfield test, applied to

a commodity like crayfish or any other commodity,

livestock or whatever, is inappropriate for

application to communications contained in

newspapers.

It is true to say that, for example, a border

tax on the importation into one State from another

of a newspaper would fail the Cole v Whitfield test

because the newspaper itself is an article of

commerce and such a tax would be discriminatory in

a protectionist sense, one would venture to

suppose. But it would seem incongruous in the

extreme, we would venture to suggest, to propound a

different test as to the application of section 92

for private communications, letters or telephone

conversations, on the one hand, and communications

Nationwide(2) 74 3/12/91

contained in newspapers, which are themselves

articles of commerce, on the other.

It would be incongruous and we venture to say

productive of difficulty because just as in the

application of the principle propounded by the

United State Supreme Court in New York Times v

Sullivan, great difficulty has been experienced in defining from case to case who is a public figure.

An analogous sort of difficulty may arise in

endeavouring to elucidate what is a private

communication of a non-business kind and what is a
commercial communication. One can think of grey

areas; for instance, communications in a trade

union newspaper distributed only to its members in

connection with their union affairs.

If there is a degree of protection under

section 92 for the dissemination of ideas by people

in one State to people in another, there ought to

be a uniform test for application to that

particular activity in the nature of intercourse,

Cole v commerce but a test based upon the concept of reasonable regulation, having regard to

and the test that we say is apt is not the

proportionality and having regard to the need to

adjust competing interests in the community.

DAWSON J: Is there not a difficulty about that, Mr Hughes?

Is not trade and commerce intercourse?

MR HUGHES:  Some of it is.

DAWSON J: Well, is not this intercourse of which you are

speaking also trade and commerce?

MR HUGHES:  On one level, yes, but not entirely,

Your Honour. That is why I seek to draw a

distinction between the medium and the message.

DAWSON J: Then some sort of intercourse has special

treatment.

MR HUGHES:  And that is not a proposition from which I

suggest, with respect, one should recoil, because

this Court, in Cole v Whitfield, left open that

possibility.	I can come to the passages in a
moment.

DAWSON J: Yes.

DEANE J: Is not the relevant point that the prohibition is

not on trade or commerce, it is on intercourse as

such?

Nationwide(2)	75	3/12/91
MR HUGHES:	As such.	It is a prohibition on the expression

of ideas, howsoever expressed. Yes, I would

certainly embrace that, Your Honour.	I am sorry,
Your Honour Justice Brennan was - - -

BRENNAN J:  Does the test which you propound under

section 92 vary in any and what respect from the

test which was propounded under the implied

guarantee?

MR HUGHES:  Does Your Honour mean in the argument in this

case?

BRENNAN J: That is right.

MR HUGHES:  In relation to section 92, no, because as I

understand the argument from reading the transcript
of the last hearing, Your Honour, my learned

friend, Mr Sackar, conceded that the implied

guarantee was not absolute, not a charter to commit

defamation, engage in seditious utterances or

engage in contempt of court. So that there are the

same restraints on the liberty for which we

contend, pursuant to section 92, as there would be

on the implied charter.

What Your Honour's question does prompt me to

say, however, is this, that if one were to view

this activity in the light of a supposed implied

constitutional guarantee of some species related to

the passage or communication of ideas, the implied

constitutional guarantee would have to be narrower,

in a sense, than that which we seek to get from

section 92, because the implication of a guarantee
of some degree of freedom of speech arising from

the nature of the Constitution, as a federal

democratic compact, is limited to such freedom as

is appropriate for a citizen of the Commonwealth -

any citizen of the Commonwealth, corporate or

personal - to criticize the political institutions

that are part and parcel of the Commonwealth as a
federal system of government.	And that is a much

narrower concept, perhaps, than the freedom we

would seek to get from section 92.

BRENNAN J:  I confess, at the moment, I do not see either

why it is or how you say it should be wider under

section 92.

MR HUGHES:	That may, with respect, be an observation which goes to the question of the extent of "reasonable
regulation", and it is sufficient for our purposes in this case to restrict the section 92 freedom to
a freedom to criticize institutions of government,
using "government" in the broad sense. The
Industrial Relations Commission is an institution
set up under Commonwealth legislation enacted in

Nationwide(2) 76 3/12/91

purported pursuit of the constitutional permission

and it would be quite compatible with our purposes

in this case if the right of criticism, to be

derived from section 92 in relation to this sort of

case, is a right to criticize an institution of

government. One is reminded of what

Sir John Latham said in one line in Burns v

Ransley, 79 CLR 101, at page 110. At point 7 on

that page, Sir John Latham said, and I will not

read the whole paragraph:

I agree that the Commonwealth Parliament has

no power to pass a law to suppress or punish

political criticism, but excitement to

disaffection against a Government goes beyond

political criticism.

BRENNAN J: That seems to me to argue very strongly in

favour of the notion that there is an implied

guarantee which does not go beyond that which is

sanctioned under the law of sedition. If that is

so, and if that is as far as you need to go, you do

not need section 92 at all.

MR HUGHES:  Your Honour, I find those words, which I know

are tentative, very encouraging, because in the

light of observations made by this Court in the

judgments in Miller v TCN, the notion of an implied

guarantee did not altogether find favour. Perhaps

that is readily explicable. Any judgment in which

a particular concept does not find favour does not need to be explained, but perhaps a reason for the
reluctance of the Court in that case to warm to the
idea of an implied constitutional guarantee of
freedom of speech, notwithstanding the presence in
the Constitution of section 92, freedom of speech,

that is, across State boundaries, was that the

freedom it may be thought was in Buck v Bavone

and other judgments of Justice Murphy, pitched too

high, too wide.

It is much easier, consistently with United

States authority of early vintage, relied upon by

some of the founding fathers in the constitutional

debates, to say that the Constitution implies,

quite apart from any express freedom enshrined in

section 92, a limited form of freedom to comment

upon the activities of federal government so long

as, to use Your Honour's example, the laws of

sedition are not breached. We would add the laws of

defamation, perhaps, as well.

BRENNAN J: Which laws?

MR HUGHES:  Your Honour, that is a good and a difficult

question, with respect.

Nationwide(2) 77 3/12/91

BRENNAN J:  Is that rather highlighting the problem that you

are seeking protection for ideas really here, as

distinct from their communication?

MR HUGHES:  I am seeking the protection for the

communication of ideas which of course is central

to defamation.

BRENNAN J: Quite, but you are looking at the communication

of them in order to spell out a ground for

protecting the freedom of their expression.

MR HUGHES:  Yes.

BRENNAN J: And it seems to me that if you once identify

intercourse as the communication of ideas by some

means or other, you have still got a long way to go

before you say "and what is communicated"; that is

the ideas that are communicated are themselves the

subject of protection, unless you go to some

general area of an implied guarantee such as that

which I have suggested in the case of sedition, for

example.

MR HUGHES:	But the communication - I start from the proposition that section 92 provides some freedom
for communications.  Now, the propagation of ideas
is the raison d'etre of communication, so that it
is difficult to divorce from the concept of
communication the ideas that are communicated.
BRENNAN J:	Not really; you stand on one bank of the Murray and shout to the other, whether it is defamatory or
whatever. It is the voice that carries - - -
MR HUGHES:	Yes.
BRENNAN J:	- - - and you might say that the voice can carry

freely. But what the voice carries is another

matter. You are seeking protection for the freedom

of what the voice can carry.

MR HUGHES:  Yes I am because what the voice carries is the

communication.

BRENNAN J: Yes, I understand.

DAWSON J: While you are dealing with that, can I just

perhaps come at it from a different direction?.

MR HUGHES:  Yes.

DAWSON J: Why, if section 92 in relation to trade and

commerce prohibits discrimination of a particular

kind, is the requirement of discrimination

eliminated, in your argument, in relation to

intercourse?

Nationwide(2) 78 3/12/91

MR HUGHES:	Because one is dealing in a different area of discourse.
DAWSON J:	Why?
MR HUGHES:	Because, communication is all about conveying

ideas.

DAWSON J:  So you come back to the same argument you have

given, yes, I follow.

MR HUGHES:  Yes. I do, yes Your Honour. I do because I

have to and I do not shrink from doing it.

DAWSON J:  But it would be far more consistent to say that

the freedom of intercourse which is protected by

section 92 is freedom against discrimination

against interstate intercourse. That is what

section 92 is about, discrimination.

MR HUGHES: This Court in Cole v Whitfield, I suggest, and

the passages are set out in our outline, has said - and I appreciate this is probably obiter but it is, with very great respect, powerful obiter - that the content of the concept of freedom of intercourse

neither governs nor is governed by the concepts

applicable to freedom of trade and commerce.

DAWSON J: That is because you cannot talk about

discrimination of a protectionist kind but you can

talk about discrimination.

MR HUGHES:  But the freedom to communicate ideas, if that is

what is within the concept of intercourse, from one

State to another is discriminated against by a law

which says, "You shall not communicate those

ideas".

DAWSON J: But not in its character as interstate

intercourse.

MR HUGHES: No, it is a general prohibition, I accept that.

DAWSON J: But you see it is intercourse amongst the States

not just intercourse.

MR HUGHES:  No, it has to be intercourse among the States.

But the problem that Your Honour raises for me is

perhaps to be considered in the light of another problem. Is there to be a separate test for so-

called private communications and commercial

communications. It is easy enough to perceive that

the newspaper, as such, is an article of commerce

so that a discriminatory border tax would be struck

down under section 92 on it as an article of

commerce, but as Justice Deane suggested, and I

adopt the suggestion, this prohibition is against

Nationwide(2) 79 3/12/91

the transmission of ideas and that may be or may

not be in commerce, and the transmission of the idea is to be perceived as being on a different

level, a different conceptual level.

Now, that is really the essence of the

argument that we want to put. It has been drawn

out of me in rather halting form perhaps, for which

I apologize, in response to questions. There is

little that has not been said so far by me that is

outside the outline and of course the outline has

been rather more lengthy than usual.

MASON CJ:	Can I just ask you one question?
MR HUGHES:	Yes, Your Honour.
MASON CJ:	You draw no distinction between the expression of

an idea and the communication of an idea?

MR HUGHES:  No, Your Honour, because the expression of the idea is nothing without communication.

MASON CJ: Yes.

MR HUGHES:  One can draw on the analogy, which I perhaps did

incompletely earlier, of the law of defamation.

There is no communication of a libel unless the

idea is published to a particular person.

MASON CJ:  I am sorry, you are looking to section 92 as the

source of the protection of the expression of the

idea.

MR HUGHES:	Of the idea, yes, because expression and communication are one indivisible concept. This
Act strikes at the expression of the idea in that sense.

A person shall not:

by writing or speech use words -

having a particular tendency. No one would commit

an offence against that section if it were valid by

expressing an idea on a piece of paper and locking

the paper away in a drawer never to be published.

The section strikes essentially at the

communication or expression of ideas; using

communication and expression as being coincident in

denotation.

BRENNAN J:  So the communication of ideas expressed from

interstate acquire within the State a freedom in

excess of that which may be allowed to the

expression of ideas within that State?

Nationwide(2) 80 3/12/91

MR HUGHES:	Yes.
BRENNAN J:	So that there is a positive discrimination

affected by section 92.

MR HUGHES: That must be so, yes, Your Honour. That in

itself is not a feature of the situation that

negates the protection. The underlying concept was

that there should be, politically and in all the

aspects that flow down from it, one country in

which State borders were not to be a barrier to

intercourse. Of course, what Your Honour has just

said really leads one into the severability

argument, to which I will come very shortly. It

would be probably convenient to go to it now.	That
is dealt with on page 8 of our outline.

What we say is that the paragraph of

section 299 which is under challenge is beyond the

redemptive effect of section 15A of the Acts

Interpretation Act because, if you look at it from

one aspect, it forms part - to borrow

Sir Owen Dixon's words in the Bank case, at page

371 - of an imseparable context.

The law is not limited in its operation to

communications which do not form part of interstate

activity. And the passages on severability, the

application or non-application of section 15A,

which we would invite the Court to consider, begin

really with Pidoto, 68 CLR.

DEANE J:  Mr Hughes, can I take you back to an answer you

gave to Justice Brennan. It may be one thing to

say that a law of New South Wales which says nobody

can move from east to more than 300 miles from the

coast can be treated by section 92 as valid in

terms of the people who only want to go so far but

invalid in terms of the people who want to cross

the border and, for that reason, the old

commingling doctrines had to rejected in relation

to that sort of thing or trade and commerce. But

where you are dealing with ideas and the expression
of ideas, can you distinguish between intrastate

and interstate expression or can you say that an

idea expressed interstate is not, as it were, part

of a national context of ideas which involves

interstate intercourse?

MR HUGHES:	You can say the latter, that it is - - -
DEANE J:	My question is directed to your conceding that you

have to distinguish for relevant purposes between

the intrastate expression of ideas and ideas that

can be shown to travel across State borders. I was

just wondering whether it was a wise concession.

Nationwide(2) 81 3/12/91

MR HUGHES:  Maybe not, Your Honour, perhaps too readily

made. But can I endeavour to tackle the problem

from another perspective and it is a perspective

that leads me into the question of severability or

no severability. One of the facts of life which

writ large upon the political landscape, when the
Commonwealth Parliament passed the Industrial

Relations Act, including section 299, was that

newspapers in this day and age have to a greater or
lesser degree, depending on the particular
newspaper in question, a circulation that crosses

State boundaries; The Australian, in particular,

perhaps; others, perhaps to an equal or a somewhat

lesser degree; all the newspapers, it would be

known to the legislators, cross State borders in

one place or another.

Now, the ideas that are expressed in such

newspapers form part of a common stock, which is

perhaps what Your Honour was indicating, of

national debate - comment, factual statements, and

so forth. It is unlikely in the extreme, one would

venture to suggest, that the legislature would have

intended, if the proscription contained in

section 299 could not apply to the interstate

expression of those ideas among the States, that

they would have intended to give section 299 a

partial and sort of limited operation, because that

would lead to the rather absurd conclusion that The

Australian, because it has a large interstate

circulation, could not be prohibited under

section 299 from doing what it is alleged to have

done here, but a private citizen in a clearly

private conversation could be. It is difficult to

impute such an incongruous and unreal intent to the

legislature.

Now, perhaps that is an attempt on my part to

approach, looking at it through different glasses,

the problem that Your Honour raised with me. If I

have conceded too much, I withdraw the concession,

but it is difficult, given that we are one

Commonwealth with a common citizenship, to imagine

that the legislature would wish to stifle one

aspect of political debate and discussion, even

though it is trenchant, yet leave the other free.

Perhaps that goes to severability, and perhaps

Your Honour's question is more easily dealt with,

more comfortably dealt with, from the viewpoint of
examining whether, if the activity for which we

claim protection under section 92 is not

intercourse, there is nevertheless some limited,

albeit very limited, implied constitutional

guarantee for the expression of criticism of

institutions set up by the Commonwealth Government,

including the commission.

Nationwide(2) 82 3/12/91

As I said earlier, the difficulty of earlier

attempts - which have not found favour in this freedom of speech into the Constitution has been

because the claim made was so wide and, as

Justice Brennan suggested to me, maybe there is -

we say there is - this is the alternative argument

- room for an implication from the nature of the

Constitution that people may criticize, either by

shouting across the Murray or doing it in a

newspaper having an interstate circulation, or by

more private kinds of communication, the

institutions which they as integral parts of the

Commonwealth, as citizens, are interested in.

Every citizen has a part to play in the processes

set up under our Constitution. He or she has to

pass judgment on the activities of those who
govern, and included amongst those who govern are

bodies such as the Industrial Relations Commission.

Now, we would say consistently with Crandall v

Nevada, which is a pre-fourteenth amendment case,

the reference to it is given in our outline, and

with the Slaughter-House Cases which approved,

albeit, post-fourteenth amendment, the principle in

Crandall v Nevada, that there are certain implied

immunities inherent in the federal polity. We

would say that that line of cases was referred to

by the founding fathers in the 1898 Melbourne

Convention, and the pages in volume 4 of the convention debates start at page 665 and go through

to 685.

MASON CJ: Justice Deane's question seems to have launched

you on a voyage around the world.

MR HUGHES:  A voyage of discovery.

McHUGH J:  Before you reach port, can I ask you this: how

do you reconcile this theory of yours about

section 92 protecting expression of ideas with the

opening words of section 92? After all, why would	the Constitution tie the freedom of intercourse to
the imposition of uniform customs? Does it not seem to indicate that intercourse is really dealing with movement of physical things rather than ideas?

MR HUGHES: Well, the opening words provide a stepping stone

in such an argument, but really a dangerous one

because in this Court as long ago as the Bank case,

Sir Owen Dixon at page 381, stressed that the

telegraph, the radio, and in due course television

which had not arrived then, would be within the

concept of intercourse. It is true to say that

Sir Owen Dixon tended to treat intercourse as a sort of appendage to trade and commerce, and that

point was made in Cole v Whitfield. The Court in

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Cole v Whitfield liberated, if that is the right expression, the concept of intercourse from the

concepts of trade and commerce.

Your Honour Justice Brennan in Miller at, I

think, page 615, drew attention to the fact that

some species of intercourse will partake the nature

as well as intercourse of trade.

TOOHEY J:	Mr Hughes, you seek to leave the commodity, as it were, behind you, do you not, the newspaper itself, and to move from the commodity to the ideas which
it expresses?
MR HUGHES:	Yes, Your Honour.

TOOHEY J: Which may or may not work to your advantage, I am

not sure. But it leaves behind the commodity

itself and seeks to free the ideas from perhaps the

narrower operation of section 92.

MR HUGHES:  Yes, indeed, that is a step in my argument, I

freely avow, and it is the step I tried to explain

when I said that one has to look at what a

newspaper does on two levels, as it were,

conceptually different levels. The newspaper

itself is an article of commerce.

TOOHEY J: And yet it has no value other than the ideas it

expresses.

MR HUGHES: True.

TOOHEY J: Or perhaps to wrap up fish and chips or something

like that.

MR HUGHES: Ultimately, yes.

TOOHEY J:	But it seems to me it is in a very special position. It differs from, say, communication by	radio or television where no commodity passes the
border unless you regard communication by the
airwaves in some way as a commodity.
MR HUGHES:	It really is difficult to regard the subject-matter of the communication, the expression
as a commodity. That is why we say you need a
different rule for the communication of ideas from the Cole v Whitfield rule.

TOOHEY J: But I suppose it is possible to recognize a

restriction which is placed upon the newspaper as a

commodity, divorced from its ideas. It might be

difficult, but in terms of some charge that is

imposed upon the newspaper as an article of

commerce.

Nationwide(2)	3/12/91
MR HUGHES:	It was with that sort of thought in mind that I

postulated, Your Honour, the possibility of a
border tax on the newspaper.

TOOHEY J: But, in any event, you appear to be inviting us to, as it were, put the commodity to one side and

look at the ideas which it expresses, is that right

or not?

MR HUGHES:  Yes. I would recoil slightly, if I may say so,

from the idea that I am asking the Court to put the

commodity on one side. It is very important

because it is the vehicle which conveys the ideas.

But I say the ideas themselves have a separate

aspect as such, perhaps somewhat ethereal, that
they are there in print but they are communicated
ideas by means of the article, the article being

the newspaper.

TOOHEY J: And yet the article, itself, has no value other

than the ideas in its presence?

MR HUGHES:	Except as paper, yes - except as blank paper.
BRENNAN J:	Mr Hughes, your argument raises for me two

difficulties. One is if the newspaper considered

as a vehicle for the transmission of ideas is

entitled to the protection of section 92 freedom as

being freedom of intercourse, what room is there

for a difference between the freedom thus

guaranteed and the freedom which is guaranteed to

the newspaper as an article of trade or commerce

and, in particular, are the State laws which are

non-discriminatory in some way to be sabotaged by

the freedom of intercourse which the newspaper may

claim for the ideas it contains?

MR HUGHES:  The answer that I would propound to the first

part of the question is that the protection which I

suggest is appropriate to the expression of ideas

is cumulative, if one likes, on the protection, if

any, that may be accorded to the newspaper itself

as an article of trade, and there is no fundamental

problem about that, I suggest, if communication, in

the sense that I have endeavoured to define it, is

intercourse.

The second part of Your Honour's question I

would endeavour to answer in this way. If a State

law operates so as to muzzle the expression of

ideas in a newspaper that operates interstate,

there may be a question of severability, there may

not, but that is a separate question.

BRENNAN J: That raises a second question in my mind and

comes back to the question of what defamation law is to be applied when you speak of muzzling. Let

Nationwide(2) 85 3/12/91

us assume that an interstate source publishes of a

State minister of the Crown that he is having an

unsavoury sexual affair, and that is transmitted

into a State in which the defence is not truth

simpliciter but truth in public benefit, and the

circumstances are such that the element of public

benefit could not be established.

MR HUGHES:  Yes.

BRENNAN J: In the same State, one has a publication of

precisely the same information by a local source to

a local source. What is the result?

MR HUGHES:	The result according to traditional concepts of the law of defamation, including so much of private
international law as operates in this area -
BRENNAN J:	I am taking it that the publication is in the

same State in both instances.

MR HUGHES: The publication is in the same State?

BRENNAN J: The same State, but the source of the

information came from interstate in one instance.

MR HUGHES: Yes, so that the publication is in New South

Wales.

BRENNAN J: A newspaper in New South Wales, let us say, if

it is truth alone, is sent into Queensland and it

is distributed in Queensland. Ordinarily one would

say it must meet in Queensland the truth and public

benefit criterion.

MR HUGHES:  Yes.

BRENNAN J: But do you say that under section 92, it can

send it into Queensland without having to meet that

criterion?

MR HUGHES:  The answer to that question will depend upon

whether the Queensland law, erecting truth and

public benefit as a defence, is to be regarded as a

reasonable regulation of that particular kind of

communication.

BRENNAN J:  Do you offer the Court any other criterion more

precise or more capable of application than

reasonable?

MR HUGHES:  When I say reasonable regulation, I mean that

expression to embrace the tests for reasonableness
of regulation that have grown up in the

jurisprudence relating to section 92.

Nationwide(2) 86 3/12/91

BRENNAN J:	Has any of that jurisprudence grown up in relation to the concept of intercourse?
MR HUGHES:	No, and that is one reason why this is a novel

case. I appreciate that.

DAWSON J:  Mr Hughes, why do you restrict your submissions

to newspapers, apart from the fact that that is

what you are concerned with? But would not your

submissions equally apply if I were to travel from

Melbourne to Martin Place in Sydney to make a

pronouncement. My utterance then, on your

argument, would be protected by section 92.

MR HUGHES:  Slightly different considerations may apply to

that, because - and this is the sort of problem

that arose in Street's case; does a barrister who travels interstate to practice in Queensland takes

part in interstate intercourse by so doing, when he
practises in Queensland? Your Honours' answer, I

know, was he does not, but he may.

DAWSON J: Well, I could be the means of communication of an

idea just as much as a newspaper, can I not?

MR HUGHES: Well, yes, but by Your Honour's voice.

DAWSON J:  So my utterance would be protected, for what it

is worth, by section 92.

MR HUGHES: Well, maybe they are.

DAWSON J: Not just my journey, but my utterance.

MR HUGHES:  Yes, if Your Honour came to New South Wales from

Victoria for the very purpose of making those utterances, yes, but it is not necessary to decide

that question in this case; we have a much more

specific type of network of communications under

the facts revealed by the stated case.

McHUGH J: But it is difficult to reconcile this distinction

between commerce and intercourse in the context of

a newspaper. Supposing New South Wales prohibited

the sale of all newspapers, Cole v Whitfield would

not help you on the trade and commerce limb. On

your argument, though, section 92 would protect you

on the intercourse limb.

MR HUGHES: Yes, it would, because it would prohibit me as a

newspaper person from carrying on the activity,

which is intercourse, of expressing my ideas to

people in other States, from New South Wales. It

would prohibit me from staying in New South Wales,

getting up a newspaper there and sending that paper

over the State border containing my ideas. It

Nationwide(2) 87 3/12/91

would be a prohibition on correspondence, even

private correspondence.

DEANE J: Is it that free trade and free speech mean

different things?

MR HUGHES:  Yes, because intercourse, as this Court has

said, is a concept not necessarily coincident with

trade and the example of the newspaper is a

paradigm case for a distinction being drawn between

trade and commerce relating to one aspect of a
newspaper's operation and intercourse in relation
to another and very important aspect of its
operation. This Court has clearly said, with

respect, in Cole v Whitfield, that the ideas,

trade, commerce and intercourse, are not coincident

necessarily, although they often will be. That

much, I must concede; they often will be, but they

not always are. And this is really what this case,

in one sense, is all about: is the expression of

ideas protected by section 92, as being

intercourse, although the medium of expression is a

trading operation?

McHUGH J: But, in Cole v Whitfield the Court rejected the

interpreted tradition of section 92 and said, "You

look at history and you look at text and you draw

the line at 1900."

MR HUGHES:  Yes.

McHUGH J: Well, if you approach intercourse in the same

light, would you not get the same result, you get

the history from the debates?

MR HUGHES: Yes, but this Court, adopting the historical

approach in Cole v Whitfield, Your Honour, said

there is a distinction. Often a coincidence but

nevertheless a distinction between - or the

possibility of a distinction between trade and

commerce on the one hand and intercourse on the

other. And then this Court said in Cole v

Whitfield that intercourse embraces communication,

movement - personal movement and communication.

So that there is room for a different regime

in relation to so much of an activity as

constitutes intercourse. I doubt if I can say more

than that without going round in a circle.

Now, I was going to make a point in relation to the convention debates.	I have strayed into the
territory of the supposed implied guarantee.	Can I

say, about the convention debates, if one looks at the treatment, at the pages I have mentioned, 665,

I think, to 685 of the proposal for the

introduction into the draft Constitution of a

Nationwide(2) 88 3/12/91

fourteenth amendment clause, Your Honours will see

that Mr Isaacs, as he then was, drew attention - I

think this starts at page 668 - to the history of

the fourteenth amendment and said, in effect, that

its enactment had had a particular purpose and that

was to ensure that the States which had been the

defeated States in the Civil War would not be able

to deprive liberated Negroes full rights of

citizenship.

And the thrust of his submission, with which

Mr Barton, as he then was, seems to have agreed,

was that the fourteenth amendment was really a

political statement and it had no conspicuous legal

effect because as the result of the Slaughter-House

Case from which Mr Isaacs quoted it was embedded,

as a principle of United States jurisprudence, that

citizens of the United States had certain implied

privileges and immunities, implied, that is to say,

from the nature of the Constitution to which they

were subject.

It would be tedious to read all that but that

is the message, I suggest, in summary form that
comes out of that portion of the convention debates
dealing with the proposal for a fourteenth
amendment type clause in the draft Constitution, a

proposal which was negatived. So the founding

fathers seem to have recognized that there was room

under the proposed Constitution for implied rights.

The subject is dealt with in Quick and Garran.

I have copies for Your Honours.	The relevant pages
are, in particular, 958 and 959.	The point that

emerges from the part of the convention debate to

which I referred Your Honours was this, that the

founding fathers, or those who took part in the

debate, came down in favour of the conclusion that

a fourteenth amendment type provision was

unnecessary because the Constitution implied

certain rights from its very nature.

Quick and Garran deal with the matter at page 958, halfway down the page, in the treatment of

section 117. It starts:

is no special section corresponding to the Fourteenth Amendment of the American	In the Constitution of the Commonwealth there the Commonwealth", affirming their privileges
and immunities, and placing them beyond the
power of the States to abridge. Since the decision of the Supreme Court of the United
States in the celebrated Slaughterhouse Cases,
it has been doubted, by competent American
jurists, whether the Fourteenth Amendment was

Nationwide(2) 89 3/12/91

really necessary in order to place Federal

privileges and immunities beyond State

control. The mere fact that the Constitution

has created privileges and immunities is, it

is argued, of itself sufficient to place them

beyond the reach of unfriendly State

legislation. The State laws can only operate

within the sphere of power assigned to the

States. The same reasoning applies to the

Constitution of the Commonwealth, and accounts for the absence of any affirmation similar to

that of the Fourteenth Amendment. The

privileges and immunities of the people of the

Commonwealth exist within the sphere of the Federal laws are paramount and supreme;

they cannot be impaired or abridged by State

legislation.

And then, the authors go on to say:

Although there is no special section

affirming the existence of Federal privileges

and immunities, such privileges and immunities may be gathered from the express provisions or

necessary implications of the Constitution.

And then they set out some that they consider
reside in the Constitution as a matter of

implication, and these are the ones they enumerate:

the right to vote at elections for both houses

of the Federal Parliament; the right to

participate, on terms of equality, in trade

and commerce between the States and with other

countries; the right to have the benefit of

the postal, telegraphic, and telephonic

services; the right to share the protection of

the naval and military forces of the

Commonwealth; the right to use the navigable

waters of the Commonwealth for the purposes of	trade and commerce; the right to pass from one
State into another and to hold intercourse
with foreign countries. To be allowed to
visit the seat of Government, to gain access
to Federal territories, to petition the
Federal authorities, to examine the public records of the Federal courts and institutions, are rights which, if not
expressly granted, may be inferred from the
Constitution, and which could not be taken away or abridged by the States any more than
those directly and clearly conveyed.
Now, there is a United States case which

carries the concept of implied rights deriving from

the nature of the United States Constitution a

Nationwide(2) 90 3/12/91

little further than that, and that is the case of

- I have referred to Crandall v Nevada which, as I

am reminded, was a case decided before the

Fourteenth Amendment. In Hague v Committee for
Industrial Organization, 307 US 496, the Supreme

Court or, at least, the judgment of

Mr Justice Roberts and Mr Justice Black, which

seems to have been concurred in by the majority,

expressed the view, at pages 512 and 513, that one

of the implied rights was to discuss, by speech or

by the written word, matters growing out of, as

they expressed it, national legislation. At 512

there is a passage which begins:

The question now presented is whether

freedom to disseminate information concerning

the provisions of the National Labor Relations

Act, to assemble peaceably for discussion of

the Act, and of the opportunities and
advantages offered by it, is a privilege or

immunity of a citizen of the United States

secured against state abridgment bys 1 of the

Fourteenth Amendment; and whether R.S. 1979

ands 24(14) of the Judicial Code afford

redress in a federal court for such

abridgment. This is the narrow question

presented by the record, and we confine our

decision to it, without consideration of

broader issues which the parties urge.	The
bill, the answer and the findings fully
present the question.	The bill alleges, and

the findings sustain the allegation, that the

respondents had no other purpose than to

inform citizens of Jersey City by speech, and

by the written word, respecting matters

growing out of national legislation, the

constitutionality of which this court has

sustained.

citizens of the United States, but merely	Fourteenth Amendment created no rights in Although it has been held that the	secured existing rights against state
abridgment, it is clear that the right
peaceably to assemble and to discuss these
topics, and to communicate respecting them,
whether orally or in writing, is a privilege
inherent in citizenship of the United States
which the Amendment protects.

In the Slaughter-House Cases it was said-

and then there is a citation there, referring to:

"The right to peaceably assemble and petition

for redress of grievances, the privilege of

Nationwide(2) 91 3/12/91

the writ of habeas corpus, are rights of the

citizen guaranteed by the Federal

Constitution."

Then there is a citation from Cruickshank, an

earlier case, which I will not read, and down

towards the bottom of the right-hand column on

page 513, they say:

Citizenship of the United States would be

little better than a name if it did not carry

with it the right to discuss national

legislation and the benefits, advantages, and

opportunities to accrue to citizens therefrom.

Now that case is really an extension of the Crandall principle recognized in the Slaughter-

House Cases. That is the additional argument we

would wish to put to the Court on the question of

implied guarantee, and we emphasize that for our
purposes the implied freedom, as it relates to this
case, should be regarded as quite narrow in its

scope, albeit very important, an implied freedom to

criticize the institutions of the federal

government, including a body set up under federal

legislation.

GAUDRON J: What is involved in criticism, Mr Hughes?

MR HUGHES:  What can be involved in criticism - of course

the scope is very wide, Your Honour - but what can

be involved in criticism is the publication of

words which have a tendency to discredit the

institution.

GAUDRON J: Really what I was asking, I think, is if

criticism, when you use the word, is predicated on
criticism being based on true facts.

MR HUGHES:  We would say any criticism, so long as it does

not offend primarily against the law of sedition,

and we would, for the purposes of the argument, be

prepared to concede that the law of defamation

would be regarded as a proper limitation on the

scope of criticism or the law of contempt of court,

but not a law which insulates a body such as the

Industrial Relations Commission from any criticism

at all which brings it into discredit, even though

that criticism from which it is insulated is

founded on true facts or is an expression of honest

opinion based on a sufficient substratum of true

facts. That of course brings one back to the

nature and effect of the proscription affected by

the particular paragraph of section 299.

GAUDRON J:  You do not assert a right to misinform?

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MR HUGHES:	I do not assert a right to misinform;	I assert

a right to criticize, provided I do not exceed the

limits that I have postulated as being the limits

of reasonable regulation. With all their

complications, the law of defamation, the law of

contempt and the law of sedition constitute

sufficient barriers or protections. It is not an

absolute right. If I asserted a right deliberately

to misinform, I would be going much too far, but I

am at pains to limit the scope of a right in the

way I have endeavoured to suggest.

I have not yet dealt with severability, and

perhaps I should go to that. When I have said what

I have to say on the topic of severability, there is one other self-contained part of the argument which is set out in summary form in paragraph Con

pages 8 and 9. That is a freedom, we would submit,

implied from the nature of the Constitution to

communicate ideas emanating from someone in a State

to someone in a Territory, and vice versa. The two
Territories in question are the Australian Capital

Territory and the Northern Territory.

On .severability, there is this feature of

section 299. It expresses a prohibition by resort
to an indivisible form of words, indivisible in the

sense that there is no discrimination in the

formulation of the prohibition between

communications, between someone in a State and

someone in a Territory or between someone in a

State and someone in another State, and communications between people in the same State or in the same Territory.

The first case to which I would invite

Your Honours' attention is Pidoto v Victoria,

68 CLR 87, and I would wish to refer Your Honours

if I may to the judgment of Sir John Latham at
page 108 through to 110.	I will spare Your Honours

the tedium of reading it all, but His Honour dealt
with two situations from the viewpoint of
discussing the principle enshrined in section 15A
of the Acts Interpretation Act. He postulated two

types of law - this is at the bottom of page 108 -

a Commonwealth Act of general application -

dealing with larceny which, according to its

terms, is plainly beyond Commonwealth

legislative power because the Parliament has

no power to make general criminal laws. Prima

facie the law is invalid. But the

Commonwealth has full powers of legislative

control, e.g., in relation to all the

territories of the Commonwealth, in relation

to acts and defaults of postal, customs and

other Commonwealth officers, and in relation

Nationwide(2) 93 3/12/91

to acts which constitute parts of inter-State

and foreign trade and commerce. Then, it is

said, the statute should be treated as valid

in relation to such cases as those mentioned,

that is, to all larcenies in the Federal

Capital Territory, the Northern Territory,

Norfolk Island etc., in relation to larcenies

by postal, customs and other Commonwealth

officers -

and His Honour rejects that notion. And His Honour

postulates the other sort of case in which, as in

Miller v TCN, the statute there under consideration enacted discrete prohibitions of particular activities, in contrast with the use of a general

form of prohibitory language, and there the

discrete prohibitions were prohibitions upon

erection, maintenance and use of a wireless

telegraphy station or apparatus for the purpose of

passing messages. There, severance was easy

because although the problem perhaps as treated in

the judgments was not seen as easy as all that

because you had separate and divisible

prohibitions, some of which could be excised
without affecting the nature or extent of the

others that remained after the process of excision.

His Honour, at the bottom of page 109, says

this:

Where the law itself -

His Honour, in the second-last paragraph on

page 109, eschews the notion that the court can

legislate section 15A as a tool for interpretation,

not for refashioning a statute or part of a statute

by a process of legislation. Then His Honour goes

on to say:

Where the law itself indicates a standard

or test which may be applied for the purpose

of limiting, and thereby preserving the

validity of, the law, the case is different.

Thus where a law is clearly made with the

intention of exercising the power to make laws

with respect to trade and commerce, it is not

difficult to read it down so as to limit its application to inter-State and foreign trade

and commerce, with which alone the

Commonwealth Parliament has power to deal .....

In such a case the subject matter of the

legislation itself is such as to provide a

test for limiting the law by construction so

as to treat it as applying only to that part

of a definite subject matter which is within

power and with which Parliament clearly

Nationwide(2) 94 3/12/91

intended to deal so far as it could lawfully

do so.

Then in the next paragraph:

But in the absence of any indication in a

law of the nature of the standard or test to

be applied for the purpose of reading down a general expression contained in the law, the court is left to guesswork. Where the

application of a law which is prima facie

invalid depends upon the co-existence of a

number of conditions -

His Honour gives example -

the character of the work performed ..... it

might be possible to reconstruct the

legislation upon a valid basis by limiting it
to a narrower class of work, or to narrower

classes of employees or of employers, or to a

narrower class of places. In the absence of

any guide to legislative intention, the court

would be quite unable to determine, except in

an arbitrary manner, whether to apply one

possible limitation to the exclusion of the

others, or two or three possible limitations,

or all possible limitations. Any selection

among these possibilities would result in the

content of the law depending upon the mere

choice of the court, not based upon any

principle. In my opinion the Acts

Interpretation Act does not authorize a court

to adopt such a method of promulgating a law

under the guise of ascertaining it.

Now, that strain of thought was carried forward, of

course, in the Bank case in the judgment of

Sir Owen Dixon, I think at page 371, and more

lately by this Court in the Concrete Pipe's case,

124 CLR, in particular, per Sir Douglas Menzies at

pages 504 to 506. Perhaps it starts at page 503.

The key passage in that rather long treatment

- long only because I do not want to take up time

by reading it; it would not be a valuable use of

the Court's time for me to read the whole of it, it

will be familiar to Your Honours - but the key

passage is at page 505 where, in the middle of the

page, His Honour said:

That section, in my opinion, does not

turn one invalid law into a number of valid

laws. It merely preserves the validity of so

much of an invalid law which is severable as

would be valid had it been enacted otherwise

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than in association with matter in excess of

power. Then we would - applying those principles to this

case, we say that section 299, or the relevant
paragraph of it, is inseverable, because the Act in

question, the section under challenge or the Act

under challenge, provides no criterion by reference

to which the invalid part of the law can be

separated or, rather, the valid part is to be

determined and preserved.

DEANE J: That might be so when you are dealing with

legislative power, but when you are in a section 92

case, there is something to be said for the view

that section 92 itself provides the, to use your

word "necessary criterion", and that you simply

shove in and accept - - -

MR HUGHES:	Well, on that approach one would put in words of exception, Your Honour, but the question is, what
words of exception? And can I give - - -

DEANE J: It was always done, was it not? In the section 92

cases it was almost a matter of course.

MR HUGHES:  Yes, but so often was that done, Your Honour, in

cases in which, for example, a State Act was under

challenge as infringing section 92 and the State

Act itself contained its own provision saying that

it was not to apply to activities done in the

course of interstate trade. That is easy. But

where the Act under challenge provides no criterion

or test according to which some residue is to be

saved, it is more difficult, and one aspect of the

problem may be referred to for the purposes of

illustration here. Each of the Territories -

particularly relevant is the position of the

Northern Territory - has under its constitutive

legislation a local version, a non-constitutional
version, of section 92.	I think it is section 49

of the Northern Territory (Self-Government) Act.

Trade, commerce and intercourse between the

Territory and the States, whether by means of internal carriage or ocean navigation, shall

be absolutely free.

If one endeavours to apply section 15A to the

Northern Territory, there is an immediate
difficulty, it may be thought. It arises because
there must be a question as to whether the
severance process is worked so as to operate as a

partial implied repeal of section 49 or not. That

is left up in the air. And I come back, if I may,

to something which I did say when Your Honour the

Chief Justice, with respect, rightly accused me of

Nationwide(2) 96 3/12/91

embarking upon another voyage, different from that

on which I had been previously addressing the

Court.

Is it to be thought - if I may be permitted to put this in the form of a rhetorical question -

that the legislature, presumed to know about

newspapers with a national circulation as being

important vehicles for conveying ideas, intended

its legislation, if it was to be struck down as

offending against a constitutional protection,

should remain valid over an area of people and

places which would leave a discrimination in
operation? The big fish would be free because what

they are doing is done in large measure across

State boundaries but private communications would

be caught. It would seem an incongruous intent to

attribute to the legislature. For those reasons we

would say that section 15A will not save this

indivisibly expressed prohibition.

Of course, in this connection we would suggest

that it is not unimportant to bear in mind that the

law creates a criminal sanction. So that the

citizens to whom it is addressed are entitled to

know just what they cannot do. If one follows

through the idea that Cole v Whitfield opens up the

possibility at least that acts preparatory to,

essential to, interstate commerce or interstate

intercourse may now be within the protective

framework of section 92, just what qualification or

exception, one asks, does one erect in the

interests of preservation? But it seems to be,

with respect, all too difficult an exercise, in

relation to which the legislature has provided no

criterion or test.

What I wanted to say about the suggested

freedom limited in kind or in scope of

communication between a person in a State and a

person in a Territory should be amplified by a
brief reference to a few cases that are mentioned

in the outline. There is Pioneer Express v

Hotchkiss, 101 CLR 536, at pages 549 and 550.	The
passage to which I wish to invite the Court's

attention starts at the bottom of page 549 where

His Honour says:

A claim resting on a much more solid

foundation was made for a constitutional

implication protecting the citizens of

Australia, or if one prefers to put it from

the corresponding opposite point of view,

protecting the Capital Territory, from
attempts on the part of State legislatures to

prevent or control access to the Capital

Territory and communications and intercourse

Nationwide(2) 97 3/12/91

with it on the part of persons within the

States, and to hamper or restrain the full use

of the federal capital for the purposes for

which it was called into existence. No one

would wish to deny that the constitutional

place of the Capital Territory in the federal system of government and the provision in the

Constitution relating to it necessarily imply

the most complete immunity from State

interference with all that is involved in its

existence as the centre of national

government, and certainly that means an

absence of State legislative power to forbid,

restrain or impede access to it.

His Honour, having said that, decided in the next part of his judgment that the State law there

in question could not be regarded as impinging upon

any such immunity, and that point is referred to by

Sir Douglas Menzies at page 566, in the middle of

the page, Your Honours:

In the second place it was said that there is

in the Australian Constitution a necessary implication of the sort established in the Constitution of the United States of America

by the decision in Crandall v State of Nevada.

The limits of the implication that was invoked were not explored; all that was claimed was

that there is an implication which requires
that intercourse (and probably trade and

commerce) between the Australian Capital

Territory and any other place in Australia shall be absolutely free from State (and

probably federal) legislative control.

And then His Honour went on to say that:

it would be unwise to do more than say that

any implication that there may be protecting

the individual's right of access to the

governments of the federal system would not

invalidate the law here in question.

I should say that in relation to the

Australian Capital Territory, there is in the
Australian Capital Territory (Self-Government) Act,

section 69, a provision which says:

(1) Subject to subsection (2), trade,

commerce and intercourse between the Territory

and a State, and between the Territory and the

Northern Territory or the Jervis Bay Territory shall be absolutely free.

(2) Subsection (1) does not bind the

Commonwealth.

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Now, if there is a freedom such as we contend

for, or an immunity such as we contend for, to

which Sir Owen Dixon was prepared to give some

countenance, we would say that section 69(2) would

not be operative because it would infringe the

implied immunity or freedom. Freedom, that is, as

between someone in a State to resort to the

Territory for the purposes of dealing with

government.

And we would say, very briefly - and I can

then finish my submission - that if there is an

implied privilege or right in a citizen of the

Commonwealth to resort to the seat of government

for the purpose of dealing with government, surely

that right ought to be regarded as extending to a

freedom to communicate in one form or another with

people in the Territory, such as the seat of

administration of government and of the agencies
set up under the legislation of the Commonwealth government, on matters relating to the limited freedom by implication for - - -

BRENNAN J:  It probably does not matter very much, but what

operation does section 69 have if subsection (2) is

given effect?

MR HUGHES: Well, I suppose it could be said, Your Honour,

that it operates - I see, with respect, what

Your Honour means. If there is an implied right,

to the extent that the implied right is there

depending on its content, subsection (2) is

unnecessary, but section 69 may have a residual

operation.

BRENNAN J: Section 69 was intended to be directed to the

legislature of the Australian Capital Territory.

It raises substantial questions about how the

Commonwealth avoids the operation of section 52 in

relation to section 92 protection.

MR HUGHES:  Yes. All we say is that quoad communication,

for the purpose of presenting views that are within

the narrow ambit of the implied freedom for which

we contend, section 69(1) is really unnecessary and

section 69(2) would, because it would collide with

the implied guarantee, not be operative.

We would submit therefore, for the reasons I

have endeavoured to give, that the questions in the

stated case should be answered as follows - this is

on page 6, Your Honours: (l)(a), yes; (l)(b),

yes; (l)(c), yes; (2)(a), no; (2)(b), yes and

(2)(c), yes. If the Court pleases.

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

Nationwide(2) 99 3/12/91

MR JACKSON:  Your Honours, as is apparent from the written

submissions, the present case involves a number of issues. The issues are ones, of course, on which,

at the stage the case last reached, the argument on

behalf of the Attorney for the Commonwealth had not

been put. I do not propose to deal with all the

matters that were raised on the last occasion, but

I propose to adopt some of the submissions that

were earlier made, but may I come to that in just a

moment.

Your Honours, the issues of which I do propose

to deal concern the fact that the case involves

three broad areas. The first is the power - if I

could leave aside for a moment section 92 and the

notions of implied guarantee - to enact a provision

such as section 299(l)(d)(ii). The second issue

concerns section 92 - or the second area perhaps I

should say, and the third area, Your Honours,
concerns the argument in relation to the implied
guarantee.

Now, Your Honours, in the course of dealing

with those issues it will be necessary to go to the
construction of the Industrial Relations Act and

also to the question of severability and also to

the other issues raised by our learned friends.

But may I turn immediately to the first issue and

that is the power to legislate in terms of

section 299(l)(d)(ii). Now, Your Honours, in that

regard, one is dealing with a combination of two

elements: one element being the question of the

construction of the enactment, of course; the other

being the ambit of the constitutional power.

Your Honours, I do not want to dwell on the question of construction, because that has been

dealt with already by Mr Weinberg, and I adopt his

submissions, but I do need to deal with it a little

by way of introduction to the submissions on

validity, which I will not propose to make.
Your Honours, could I go immediately to the
Industrial Relations Act 1988.	Your Honours, that

Act has the objects which are listed in section 3

and, Your Honours, it is obvious from their terms

that the Act is based, or perhaps based

principally, on section 5l(xxxv) of the

Constitution.

Your Honours, one should note in passing that

the Act also has an additional operation, the
additional operation being provided for by
sections 5(2) and 5(3), and Your Honours the
additional operation given to the Act by those

provisions is based on sections Sl(i) and 122 and,

also, on a group of other powers, if I can put it

Nationwide(2) 100 3/12/91

shortly, in relation to what is described as being

public sector employment, and I would refer

Your Honours to, for example, section 5(3)(d).

Now, Your Honours, the mode adopted by the Act

is to establish by section 8 a body or tribunal

which it describes as a commission and the members

of the commission must have particular

qualifications and experience and skills. That is

dealt with by section 10.

Your Honours, the members are paid by the

Commonwealth - sections 21 and 23 - and if I could move from that to say that the members of the

commission are given a degree of security of

tenure. Your Honours, that appears from section 24

first and also section 28. If I could take

Your Honours to that very briefly, Your Honours

will see the grounds for removal and the method of

removal for presidential members in section 24, and

in section 28, the removal of a commissioner.

Your Honours, the point of referring to those

provisions is to provide some of the group of provisions which indicate that members of the

commission are to have, as I will be submitting in

just a moment, or perhaps a little later today,

that the concept of conciliation and arbitration in

section Sl(xxxv) and also in the Act itself of

course contemplates that there will be an

independent third party, and that provision of the

nature of section 299(1)(d)(ii) is a provision

directed to promoting or protecting, whichever

expression one chooses to use, the independence and

operations of that body.

MASON CJ: If it is convenient, Mr Jackson, we will adjourn

now until 2.15.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

MASON CJ: Yes, Mr Jackson.

MR JACKSON:  Your Honours, when the Court adjourned, I was

in the course of taking the Court to some of the

provisions of the Industrial Relations Act, dealing
with the situation of the commission, meaning by

that the independence of it and also the fact that

it is a third party established pursuant to

section Sl(xxxv).

Nationwide(2) 101 3/12/91

Your Honours, could I go to section 27 and

Your Honours will there see provisions for

disclosure of interest and a requirement for the
consent of parties in circumstances where a member
of the commission has an:

interest ..... which could conflict with the

proper performance of the member's functions

That is in both subsection (1) and subsection (2).

Your Honours, one sees also in

sections 42 and 43 the provisions for the

representation of parties before the commission and

one sees also in sections 43 and 44 an ability on

the part of the minister to intervene and a

provision in section 45 for there to be appeals

from a decision of a member.

And Your Honours, when one goes specifically

to the manner of performance by the commission of
its functions, Your Honours will see that

section 89(a) speaks specifically of the

commission's function being:

to prevent and settle industrial disputes by

conciliation or arbitration;

Your Honours, that appears in the provision to

which I refer.

Your Honours, the concepts of conciliation and

arbitration both contemplate, in our submission,

the intervention of a person not party to the

dispute. The Act provides in sections 90 to 97

inclusive for various considerations to be taken

into account in determining matters before the

commission, but those provisions do not bind the

members of the commission to decide matters in

particular ways.

Your Honours, the approach to be taken to conciliation, if I could deal with that first, is

set out in section 102. Your Honours will see in

subsection (1) that:

a member of the Commission shall do everything

that appears to ..... be right and proper to

assist the parties to agree on terms for the
prevention or settlement of the industrial

dispute.

Then the types of action that may be taken are

specified. Your Honours, the nature of

arbitration under the Act is dealt with in section

104 and Your Honours will see in section 104 that

there is a restriction upon the participation in

Nationwide(2) 102 3/12/91

the arbitration of a member of the commission who

has already exercised conciliation powers. That is

in subsection (2) and then subsection (3), and it

goes on.

Your Honours, the tests to be applied in

arbitration are set out in section 110. The Court

will there see that under subsection (1), the

commission is obliged to:

carefully and quickly inquire into and
investigate the industrial dispute and all

matters affecting the merits, and right

settlement, of the industrial dispute.

In subsection (2):

In the hearing and determination of ..... any other proceedings before the Commission:

(a) the procedure of the Commission

is ..... within the discretion of the

Commission.

(b) the Commission is not bound to act in a

formal manner and is not bound by any rules of

evidence, but may inform itself on any matter

in such manner as it considers just; and

finally in paragraph (c):

the Commission shall act according to equity,

good conscience and the substantial merits of

the case -

Your Honours will see in subsection (3) that there

has to be - provision may be determined by the

commission for the time periods:

necessary for the fair and adequate

presentation of the respective cases -

and so on.

Your Honours, the point of referring to those provisions is that they demonstrate that whatever

might be the precise nature of the activity engaged

in by the commission when it is engaged in either conciliation or arbitration, what is contemplated

by the enactment, if I could stay with it for just

a moment, is that the conciliation and arbitration,

as the case may be, will be carried out by persons

who are independent in the full sense of the word.

Your Honours, might I move from that to

examine the ambit of the concepts of conciliation

and arbitration referred to in section Sl(xxxv).

Nationwide(2) 103 3/12/91

The point of doing so is to seek to demonstrate

that a provision of the kind referred to in section

299(l)(d)(2) is a provision which Parliament might

quite properly consider appropriate to protect and

promote the commission.

McHUGH J:  Mr Jackson, do you accept that 299(l)(d) requires

a publication?

MR JACKSON: Well, Your Honour, yes, in the sense that I

suppose if one were merely to write the thing and

burn it that would not be an offence, I would

submit, yes.

One of the reasons why it would not be,

Your Honour, is because the section speaks of something that is a use of words calculated to produce a particular effect. It would seem unlikely, in our submission, that a use of words,

the words themselves, of course, being likely to

produce the effect one assumes, would be made the

subject of an offence when the circumstances in

which the words were used - if I could use the term

neutrally - could not be, in fact, likely to have

any such consequence.

Now, Your Honours, the power of the

Parliament, under section Sl(xxxv), is to make laws with respect to the settlement of industrial disputes extending beyond the limits of any one

State by conciliation and arbitration and,

Your Honours, the Parliament does not itself have

the power to determine the terms on which an

industrial dispute is to be settled by that system;

nor does the Parliament have the power to direct
the commission in the settlement of dispute. Those

matters must be left to the conciliator or

arbitrator.

Your Honours, I used the expression "the

commission" in the last few sentences which I

of referring to the body which Parliament in fact	spoke, but I use it, if I may, as a shorthand way
has selected and, of course, Parliament does not
necessarily have to use the particular structures
which have so far been selected. But,
Your Honours, notwithstanding the ability of Parliament to select, perhaps, other structures, it
is yet subject to limitations on the modes which it
may adopt because, of course, it has no general
power to make laws in relation to wages and employment conditions and, whilst in cases in which
it is not a party it may intervene, the commission
is not bound to accept the views which the
Commonwealth may advance. Your Honours, the
limitations on the Parliament's power in that

Nationwide(2) 104 3/12/91

regard derive, of course, from the notion of

settlement of a dispute and settlement of a dispute

by conciliation and arbitration.

Your Honours, the principles to which I have

adverted can be seen in a number of cases. If I

could go, first, to the Australian Commonwealth

Shipping Board v Federated Seamen's Union of

Australasia, (1925) 36 CLR 442. Justice Isaacs

referred to the fact that under section 5l(xxxv)

the principle is that even Parliament itself shall

not decide the terms on which the dispute is to be

settled. I will give Your Honours the reference in

just a moment, if I may, but - "Parliament might

itself select the arbitrator and clothe the

arbitrator's opinion with statutory force". Could

I take Your Honours to the bottom of page 452 and

Your Honours will see, in the last paragraph on the

page, the second sentence, His Honour said:

The discretion of the arbitral tribunal ..... is

entrusted to it alone. The very principle of

the constitutional power is that even

Parliament shall not itself decide the terms

upon which an industrial dispute is to be

settled. But Parliament may select its arbitrator, and clothe his opinion with

statutory force.

And His Honour goes on to elaborate upon that at

the top of the page.

BRENNAN J:  To what extent is your argument dependent upon

the absence of federal parliamentary power to

effect that result?

MR JACKSON:  Your Honour, if I could put it this way: if

one looks at the particular power - the point I am

seeking to make is that the particular power,

because of the nature of conciliation and

arbitration, is one which certainly - certainly, if

I may say so in the particular case - empowers the

enactment of a provision like the one in question

because it is necessary to, in effect, protect - if

I can use that term compendiously - a tribunal.

But what I was going to go on to submit was

that that is, in a sense, no more than the

application of a more general principle which one

can see in a number of cases to which I will come a

little later, showing that Parliament may enact

legislation to promote and protect the activities,
as it were, of bodies which it creates or permits
to be created under laws made under various powers.

So the way in which I would seek to answer what Your Honour put to me is this: generally

Nationwide(2) 105 3/12/91

speaking, Parliament has a power to do the kinds of

things about which I have just made a submission;

but a particular instance is section Sl(xxxv) where

the nature of the power itself specifically

contemplates that there will be a tribunal -

tribunal is perhaps the wrong word, Your Honour,

but there will be some body having an independent

power of decision.

Your Honour, if I could use an analogy and went to the judicial power in Chapter III, the only

court - the only federal court, if I can put it

that way - the existence of which is specifically

contemplated by the Constitution is this Court. So

that one sees, under the provisions of Chapter III,

what is contemplated is that there may be

established by the Parliament other federal courts;

there do not have to be but there may be. If they

are established, then one would think, we would
submit with respect, that provisions which had the
effect of protecting the court thus established are
provisions which are related to the subject-matter
of the power.

Your Honour, in relation to section Sl(xxxv), although it does not contemplate there being a

court exercising judicial power, it does

contemplate that there will be a body or a series

of persons who exercise a power which has a

significant analogy with that in the sense that

independence is required. So, Your Honour, what we

say is that section Sl(xxxv) is an example of a

larger - an exercise of power, I should say, under

that provision is an example of a rather larger

principle but it is a peculiarly apt example
because of the nature of the subject referred to.

So, I think, Your Honour, the short answer is that

it is not.

Your Honour, I was going to go from that to

some observations of Chief Justice Barwick to the

same effect in Reg v Commonwealth Conciliation and

Arbitration Commission; Ex parte Amalgamated

Engineering Union, (1968) 118 CLR 219 and,

Your Honour, I discover there is a number of cases

to which we intend to refer that are not on any relevant list, and there are some extracts from

them. May I seek to hand them once and not do it

many times.

Your Honours, I was going to refer to

118 CLR 242, where Chief Justice Barwick, about the

second new paragraph on the page, spoke of the

power, and Your Honours will see in the three

paragraphs there commencing that he said:

Nationwide(2) 106 3/12/91

The constitutional power ..... is to make

laws with respect to the settlement of

industrial disputes extending beyond the

limits of one State by a specific means,

namely, by conciliation and arbitration.

And then Your Honours will see in the remainder of those two paragraphs that His Honour speaks of the

concepts to which I was referring earlier.	And,
Your Honours, at page 269 in the same case,

Justice Windeyer said, about half-way down the

page:

task of settling industrial disputes by fixing

the Parliament has no power under the

wages according to some particular principle

or formula. It must be given a discretion as

to means having regard to the end, the

prevention and settlement of industrial

disputes by conciliation and arbitration.

Your Honours, that approach was adopted by the

Court in Australian Building Construction

Employees' and Builders Labourers' Federation

v Reg, (1986) 161 CLR 88 and, Your Honours, at the

bottom of page 93 going to the top of page 94,

Your Honours will see about five lines from the

bottom of the page - - -

BRENNAN J: What page is that, Mr Jackson?

MR JACKSON:  Page 93, Your Honours. Your Honours will see

the submission in the last six lines or so, and

then it was said that subject to the power was

neither - and Your Honours will see the submission

recorded. And then, Your Honours, in the passage

following that, the second line on page 94:

The subject-matter of the power is

conciliation and arbitration for the

prevention and settlement of interstate

industrial disputes, no more and no less.

Then there is the passage quoted from Australian

Commonwealth Shipping Board v Federated Seamen's

Union, and then, Your Honours, if one goes down to

the end of the paragraph, about two-thirds of the

way down the page.

Your Honours, the need for independence in the carrying out of the functions of the commission was

emphasized by the Court in a case to which I will

perhaps give Your Honours the reference without

going to its terms - Reg v The Commonwealth

Conciliation and Arbitration Commission; ex parte

Nationwide(2) 107 3/12/91

The Anglis Group, (1969) 122 CLR 546 at pages 553

and 554. Your Honours, could I also refer to Re

Ranger Uranium Mines Proprietary Limited; Ex parte

The Federated Miscellaneous Workers' Union of

Australia, (1987) 163 CLR 656 at pages 663 and 665

to 667, where the members of the Court referred to
the similarity between the manner of exercise of
the arbitration and judicial powers although, of
course, in the end the powers are differently

characterized for the purposes of the Constitution.

Now, Your Honours, the nature of conciliation

and arbitration has, of course, been discussed in

the cases to which I referred Your Honours, but may I give Your Honours a number of other cases dealing

with the topic, and they are cases which, in our

submission, make it clear that the intervention of

a third independent party is required. The first

is Australian Boot Trade Employees' Federation v

Whybrow, (1910) 11 CLR 311, where it was held

that -

the provision of the Commonwealth Conciliation

and Arbitration Act 1904-1910 which purport to

authorize the Commonwealth Court of

Conciliation and Arbitration to declare a

common rule in a particular industry, and to

direct that the common rule so declared should

be binding upon the persons engaged in that

industry, are ultra vires ..... and invalid.

Could I take Your Honours to page 317 and

Your Honours will see the passage commencing in the

second new paragraph on page 317, where

Chief Justice Griffith referred to the argument -

that the common rule provision may be fairly

regarded as incidental to the prevention of

disputes by arbitration.

And Your Honours will see throughout that paragraph

and in the next paragraph going over to the top of

the next page that His Honour makes it clear that

his view was that arbitration and dispute

contemplated the existence of parties to a dispute

and involved settling such a dispute.

Your Honours, in Australian Railways Union v

Victorian Railways Commissioners, (1930) 44 CLR 319

at pages 384 to 385, in the joint judgment of

Justices Rich, Starke and Dixon, Their Honours, at the bottom of page 384, going on to the top of

page 385 said that:

A law which enables a body of persons to settle a dispute by issuing a decree -

Nationwide(2) 108 3/12/91

in effect

arrived at by discussion amongst themselves

without any hearing or determination between

the disputants ..... not a law with respect to

Conciliation and Arbitration -

in terms of section 5l(xxxv).

And Your Honours, in Alexander's case,

The Waterside Workers' Federation of Australia v

J.W. Alexander Limited, (1918) 25 CLR 434, the

issue was discussed in the joint judgment of

Justices Isaacs and Rich where Their Honours said

first at page 462, in the second paragraph of their

reasons for judgment in the third sentence. It

said it:

does not give power in general terms to the

Commonwealth Parliament to legislate with

respect to industrial disputes beyond the

limits of the State. The power is limited to

legislation with respect to a particular

method of dealing with such disputes.

And Your Honours, that proposition is elaborated

upon at the top of page 463 in a passage that
really goes through to page 464 about half-way down

the page. And Your Honours, perhaps I could simply mention that that passage was referred to, although

for slightly different purposes, in the

Boilermakers' case; could I just give Your Honours

the references, Reg v Kirby; ex parte Boilermakers'

Society of Australia, (1956) 94 CLR 254 at

pages 281 to 282 and 289 and in the Privy Council

in 95 CLR 529 at 536.

Your Honours, in the course of the earlier

hearing of this case in the Court, some mention was
made of the commission's powers in relation to the

control of organizations. The position is that the

powers which the commission has are powers to hear

and determine applications for registration of

organizations - that is section 189; amendments to

the rules of organizations - that is sections 190

and 204; and amalgamations. Other matters such as

cancellation of registration or elections or

contraventions of section 196 or directions for
performance of the rules are dealt with by the
Federal Court or by the Electoral Commission.

Your Honours, what is apparent from the provisions, we would submit, to which we have

referred, both of the Constitution and of the Act,
is that the functions to be performed by the

persons or bodies who are empowered to carry out

conciliation and arbitration are ones of,

Nationwide(2) 109 3/12/91

inevitably, high importance and inherent in the

nature of the functions, in our submission, is the

need to ensure the independence of such a body and

to protect and facilitate the carrying out of its

functions, and the Act recognizes that, by

proscribing a number of forms of conduct which

would prevent or hinder the proper carrying out or

performance by the commission of its functions.

Could I take Your Honours to some of them very

briefly. Section 299 Your Honours have seen
already, but one sees also section 300, the
provision requiring attendance at a compulsory
conference; section 301, the provision which

creates offences by reason of doing various things

to a person because a person assisted the

commission or was required to assist the

commission; section 302, a provision which

prohibits the creation of a disturbance or

continuing a disturbance where the commission is

sitting; section 303, failure - to put it shortly -

to obey a summons; and, Your Honours, if I could

move from that to section 308, a failure to comply

with a direction when a direction has been given to

a person or organization; section 311, wilfully

contravening an award or order of the commission;

and section 312, incitement to boycott awards.

Your Honours, the terms - if I could go back

to section 299(1) - the terms of section 299(1)

proscribe, in our submission, conduct which is

potentially likely to affect adversely the

performance by the commission of its functions.

Your Honours will see that paragraphs (a), (b) and

(c) of section 299(1) are expressly related to the

performance by the members of the commission of

their functions as such. So, too, is paragraph

(d)(i) and section 299(l)(d)(ii), it is submitted,

similarly relates to bringing a member of the

commission into disrepute in the member's capacity

as such.

Some reflections on the conduct or characteristics of a person holding an office in

respects other than conduct or characteristics in
holding the office may yet reflect on the repute of

a commissioner as such; very often they will.

But not all such reflections will have that effect.

Could I go then to the - - -

McHUGH J:  You concede that truth and fair comment are

defences to a prosecution under (d).	How do you
get that out?

MR JACKSON:  I think what I said was defences in inverted

commas, with respect. What we say about that is,

first, that so far as truth is concerned, it is

Nationwide(2) 110 3/12/91

perhaps a question, which it may or may not be

necessary for the Court to resolve now, whether

truth is a defence in the strict sense of the term,

or whether it is a matter going to the question

whether there is disrepute, or whether it is

something which, if raised by the accused, is

something which then has to be negatived by the

prosecution, and I suppose fair comment is, in a

sense, in the same batch, as it were.

Your Honour says where do we get it from. So

far as the ability to raise issues of that kind is

concerned, the position is, as we would submit,

that generally speaking, defences that might

ordinarily be available under the common law are

not specifically referred to in the Commonwealth

laws themselves, yet they are available.

Your Honours, that is an issue that was debated on

the last occasion, and I do not particularly want
to do it again unless Your Honour wants me to, but

that is the basis for it, Your Honour.

BRENNAN J: Where is there any common law analogy with

299(l)(d)(ii)?

MR JACKSON: Well, Your Honour, the closest analogy, of

course, is the effect, if I can put it that way,
described as scandalizing the court, to put it
shortly. That is the short version of engaging in

conduct in relation to a court of the nature

referred to in section 299(l)(d)(ii). What we say

is that one says, "This is an offence of a

particular kind." It is of a kind that is

analogous to a similar offence which would apply in

relation to a court; if it were a court, a

particular defence would apply. The legislature

should be taken to have adopted a similar approach

when applying an analogous provision.

BRENNAN J: What is the authority for such a method of

statutory construction?

MR JACKSON: Well, Your Honour, I suppose the answer is

there is none immediately to be found, but if I

could just say as a matter of authority I would say
that, but Your Honour it is, with respect, a
sensible approach to it. Why, one would ask, would
the legislature adopt a method of enactment of an

offence which made no provision for defences? One

would think that what the legislature would be

doing would be to adopt the ordinary principles

that would apply to offences of the general nature.

For example, Your Honour, the notions, on the one

hand, such as mens rea; on the other hand,

defences which relate to states of mind, and so on.

Nationwide(2) 111 3/12/91

BRENNAN J: No problems about those; but the problem here

is actus reus.

MR JACKSON:  I am not entirely certain what Your Honour

means by that in the particular case, but may I

just -

BRENNAN J:  The question is what can lawfully be said about

the commission. Not the state of mind with which

it is said or the intention with which it is said,

but what can be said.

MR JACKSON:  Your Honour, what can be said about the

commission is in effect what is not prohibited.

What is prohibited is derived from two things.	The
first is by seeing what is the ambit of the
provision in question.	The second is by seeing
what the defences are.	Your Honour, one starts, of

course, from an underlying view that in order to

make what someone says be something which is

prohibited, then one has to find a statutory

prohibition.

It is then a question of seeing what it says.

What it says is that you cannot, by writing or by

speech, use words calculated - "calculated"

meaning, in our submission, likely - to have a

particular effect. The effect that is contemplated

is to bring a member of the commission or the

commission into disrepute. Your Honour, there may

be debates about precisely whether a particular

result is or is not disrepute, and it may be a

question whether the things I described before as "defences" are matters of exculpation or they are matters constituting the offence.

Your Honour, if I could just pause for one

moment, it would be strange, with respect, to find

a provision which was simply a provision which

created the particular onus of proof in the sense

of it going one way or the other as being an aspect

which was fatal to validity.

BRENNAN J:  No, it is not a question of the onus of proof,

it is a question of the elements of the offence.

MR JACKSON:  Your Honour, that could be right, with respect,

if there was no way out of the offence, if I can

put it that way. If Parliament were to create

something which was an offence for which there was
no defence, that it may well be that there would be

an implied limitation on the power of Parliament so

to enact, but if what Parliament has done is to

create an offence and said that something which

might be an element of the offence or might be a

defence is to be treated one way or the other, that

Nationwide(2) 112 3/12/91

does not, in our submission, make the provision

invalid because they chose one method rather than

the other.

BRENNAN J: Take the worst case. Commissioner X has been

taking a bribe.	Now, one would think prima
facie - - -

MR JACKSON:  Pretty much what the article said, Your Honour,

about corrupt.

BRENNAN J: Let it be assumed that we are speaking

hypothetically and the circumstances are given. It

seems to fall within 299(l)(d)(ii). Let us assume

further that it is true. What is the defence?

MR JACKSON:	Your Honour, the first thing is would that be an offence? If one takes the view - and
Your Honour will forgive me for being slightly
ambivalent on this - but if one takes the view that
the true meaning of the term "disrepute" is that it
means unwarranted disrepute - and that is the
expression used in relation to its predecessor in the cases to which Your Honour was referred before
at the earlier hearing - if that is the view that
one takes about it, then the disrepute in question would not be disrepute within the meaning of the provision, because the provision would be treated
as - it would be a provision dealing with warranted disrepute, as it were.

Your Honour, that aspect was referred to, I

think, in Bell v Stewart, 28 CLR 419, and

Your Honour, in that case the relevant part, I

think, is at page 425 to page 426. Perhaps I

should go to that for just a moment.

That was an appeal against the conviction of a

printer and publisher of a newspaper on two charges

laid under section 83 of the previous Act. The

word "wilfully" appeared as part of the offence in

the earlier Act, the earlier enactment being

section 83 of the 1904 Act.

The appellants had been convicted on two

counts: one count was wilfully by writing, using

words calculated to bring the Conciliation and

Arbitration Court, as it was then, into disrepute;

the second count was wilful contempt of the court.

The case concerned a newspaper article published

during a case brought by the trade union for

shorter working hours and the employer had led

evidence which included evidence that employees

were slowing down in the bricklaying industry and

the published words in the newspaper included a

suggestion that Mr Justice Higgins was unduly

innocent in the ways of the industrial world. That

Nationwide(2) 113 3/12/91

appears at the bottom of page 423 to the top of

page 424.

Your Honours, the Court held that the convictions on both charges should be set aside and

all members of the Court held that the conviction

on the first charge should be set aside. The

principal judgment was that of Chief Justice Knox

and Justices Gavan Duffy and Starke and they

accepted the main argument of the publisher which
was that the words published could not, in the mind
of any reasonable person, bring the court into
disrepute or, to use the synonyms that were used in

the case, disesteem, discredit, disgrace or

dishonour or be regarded as a contempt.

Your Honours, at page 425 - the passage,

really, I think, is the first new paragraph on the

page and it goes through to the top of page 426.

And Your Honours will see, about half-way down

page 425, where it is said:

The main argument was that the words published

could not, in the mind of any reasonable man,

bring the Court into disrepute -

et cetera. Your Honours, I am sorry, I have just

lost the particular passage in the judgment of the

other members of the Court but could I just say

that in the judgment of the other members of the

Court they held that for words to be calculated to

bring a court, as they were speaking about, into

disrepute, they must impute to it, not for example

an erroneous judgment or a mistaken view of the

subject-matter, but conduct or character that, if

true, would forfeit the respect of the community.

In the particular case the words used could not reasonably be construed to have the necessary

meaning. Your Honours, I think that is at page 426

in the fourth paragraph of their reasons for

judgment.

Your Honours, following that there were the

four, if I call call them Howard v Gallagher cases,

which dealt with the predecessor to section 299. I

wonder if I might perhaps just give Your Honours

the references to the cases without going through
them, unless Your Honours want me to, because the

issue was the subject of argument earlier, which I

simply wish to adopt, really.

Your Honours, the first case was before

Mr Justice Jenkinson. That is (1986) 69 ALR 424.

That dealt with a motion by Mr Gallagher that the offence charged should be tried by a jury; that was

dismissed. The second case is reported in

(1987) Australian Industrial Law Reporter 357.

Nationwide(2) 114 3/12/91

That was a case in which Mr Justice Jenkinson also

refused to dismiss the information on the ground

that the motion could only constitute an offence if
the words were used during the pendency of the

proceedings. The third case was an appeal to the

Full Court of the Federal Court, (1987) 79 ALR 111.

Finally, the fourth case was the one in which

Mr Justice Pincus dismissed the first charge, not

being satisfied beyond reasonable doubt that the

statement necessarily attributed any improper

conduct to the member of the Industrial Commission in question. The reference to that, Your Honours,

is 85 ALR 495.

Your Honours, could I say that the paucity of

cases, I suppose, on one view might reflect a lack
of desire to prosecute, perhaps, but what it does

indicate is that it does not support any kind of

floodgates notion in relation to the ambit of

section 299(l)(d)(ii). What I mean by that is that

there is nothing to suggest that the power to

prosecute in respect of the provision is one that

has been exercised freely. So that one cannot

really look at the provision and say, "This is a

provision which has a very wide ambit and puts

everyone in difficulty".

Your Honours, so far as the other cases

concerning the defences and so on are concerned,

they were dealt with in the earlier submissions,

and may I refer Your Honours to the outline of

submissions that was handed up on that occasion on

behalf of the Director of Public Prosecutions.

Your Honours, may I move on to the question of

section 5l(xxxv) and the remaining parts of it with

which I wish to deal. Your Honours, what we would

submit is that the power conferred by

section 5l(xxxv) empowers Parliament first, to

create the Industrial Relations Commission;

secondly, to make provision conferring upon it and

upon its orders and upon its members whatever

authority is reasonably necessary and incidental to

enable the discharge of its functions. Could I

refer, in that regard, to O'Toole v Charles David

Pty Limited, (1991) 171 CLR 232, and I wanted to go

particularly to page 289. At the bottom of page

289 in the joint judgment of Your Honours Justices

Deane, Gaudron and McHugh, Your Honours said that:

The legislative power conferred by

s. 5l(xxxv) extends to the establishment of a

system of conciliation and arbitration by a

specialist tribunal ..... Implicit in the notion

of conciliation and arbitration is the power

to determine a dispute by a binding order.

Nationwide(2) 115 3/12/91

And then Your Honours referred, at the top of the

next page, to:

the establishment of a tribunal with

conciliation and arbitration functions -

and went on to say, towards the end of that

paragraph, that -

Because of the nature and subject matter of

interstate industrial disputes, it is

inevitable that such binding orders must, on

occasion, take the form of prescribing general

rules of conduct.

Then Your Honours went on to say that:

the legislative power to establish such a

specialist tribunal ..... encompasses, of itself

and without need to resort to the incidental

power contained ins. Sl(xxxix), the power to

make legislative provision conferring upon

such a tribunal and its orders whatever

authority is reasonably necessary and

incidental to enable the effective discharge

of its functions.

Then Your Honours went on to elaborate upon that

proposition throughout the remainder of the
paragraph, but I wanted to refer particularly to

the words:

to make legislative provision conferring upon

such a tribunal and its orders whatever

authority is reasonably necessary and

incidental to enable the effective discharge

of its functions.

Your Honours, observations to that effect are

ones which one sees also in earlier cases which

establish that the power conferred by

section Sl(xxxv) extends to matters reasonably

incidental to the attainment of the ends referred

to in the provision and, of course, not manifestly

unconnected with them.

Your Honours, could I refer in that regard to

the observations of Chief Justice Griffith in

Jumbunna Coal Mines NL v Victorian Coal Miners'

Association, (1908) 6 CLR 309. Your Honours, that

was a decision which upheld the provisions of the the registration of associations as organizations and the incorporation of registered organizations,

and upheld that as being incidental to the exercise

of the power.

Nationwide(2) 116 3/12/91

Your Honours, at page 333 about half-way down

the page His Honour said in the second sentence:

The power to legislate with respect to

arbitration for the settlement of a dispute

necessarily involves, in my opinion, power to

make provisions for constituting an arbitral

tribunal, for bringing before it the parties

to the dispute, and for enforcing the award of

the tribunal.

But he went on to say:

In the exercise of this power, and to attain

those ends, the Parliament is unfettered in

its choice of means, provided that they are

really incidental to the attainment of these

ends, and not manifestly unconnected with

them.

Your Honours, Parliament also, we would submit, as

is apparent from that passage and other passages,
is not confined to those means which are
indispensably necessary to give effect to the head
of power, but it may legislate for provisions which
are conducive to the success of conciliation and

arbitration processes, or which remove an obstacle

to its effective operation.

Could I refer Your Honours in that regard to

Stemp v Australian Glass and Manufacturing Co

Limited, (1917) 23 CLR 226. Your Honours, that was

a case which concerned a prohibition in the Act

against doing anything in the nature of a lock out

or strike, and the Court by a majority held that
the prohibition was a valid exercise of the power

of the Parliament. Could I refer Your Honours to

the judgment of Acting Chief Justice Barton at

page 233 and, Your Honours, it is really the whole

of the page going over to the top of the next page;

and, Your Honours, at page 235 speaking more

particularly in the three paragraphs commencing

about the middle of the page; and Your Honours, in

the judgment of Justice Isaacs at the bottom of

page 240 going over to the top of page 241, and

where he expanded upon on the remainder of page 241

going over to page 242.

Your Honours, Parliament, of course, may

legislate for what is reasonably necessary and a

provision like section 299(1)(d)(ii), in our

submission, is within that concept because it is a

provision prohibiting conduct calculated to make

the functioning of the commission less effective.

Your Honours, I wonder if I could go back for a moment to a case to which I referred earlier but

did not take Your Honours to particularly, that is

Nationwide(2) 117 3/12/91

Reg v Commonwealth Conciliation and Arbitration

Commission; Ex parte Angliss Group, (1969)

122 CLR 546, at page 553, where what was said,

about half-way down the page in the joint judgment
of the Court, was that the very nature of the
office of a member of the commission requires that
he should apply his mind constantly to general

questions of arbitral policy, and then at the

bottom of the page:

Those requirements of natural justice are not infringed by a mere lack of nicety but

only when it is firmly established that a

suspicion may reasonably be engendered in the

minds of those who come before the tribunal or

in the minds of the public that the tribunal

or a member or members of it may not bring to
the resolution of the questions arising before

the tribunal fair and unprejudiced minds.

And, Your Honours, that is a decision recognizing

the need for there to be a commission which is

independent and showing, in our submission, a

relationship between provisions designed to achieve

that aim and the legislative power.

Your Honours, in Reg v Ludeke; Ex parte Australian Building Construction Employees' and

Builders Labourers' Federation, (1985) 159 CLR 636,

the Court held that Parliament had power to

legislate for the cancellation of the registration

of an organization if its continued existence were

inimical to the effective conduct of the process of

conciliation and arbitration. And, Your Honours,

could I refer in that regard to page 647, and

Your Honours will see the passage commencing about

a third of the way down the page going through on

to the next page and, Your Honours, could I refer

also to page 649 and, in particular, Your Honours,

the new paragraph commencing on that page and going

through that paragraph and, Your Honours, going

then to page 650 at the top of the page the

reference to the Commonwealth Shipping Board case

and again to the end of that paragraph.

Your Honours, so too, we would submit,

Parliament is entitled to legislate to proscribe

conduct which would constitute, and if I may use

the expression in inverted commas, "a contempt of

the commission" and, Your Honours, that the

legislative power is not confined to what is

absolutely necessary is referred to, specifically,
by the joint judgment of Your Honour the

Chief Justice and Justices Wilson, Brennan, Deane and Dawson in Alexandra Private Hospital Pty Ltd

v The Commonwealth, (1987) 162 CLR 271, at

page 281. Your Honours, it is the new paragraph

Nationwide(2) 118 3/12/91

commencing on the page, and if I could take

Your Honours, particularly, to about three-quarters

of the way down, in considering what is incidental

to the subject-matter of a legislative power, one

is not confined to what is necessary to its

effective exercise and I would refer Your Honours

to the passage quoted from Justice Dixon.

Your Honours, if I could move from that to a

related topic, the power for Parliament to

legislate and to promote its own creations or

permitted creations, has been stated on a number of
occasions.

Your Honours, the starting point is really The Commonwealth v State of Queensland (1920) 29 CLR 1. Your Honours, I wonder if I might hand Your Honours

some further copies which are in groups. The

Commonwealth v State of Queensland was concerned

with a law of the Commonwealth which exempted the

interest on treasury bonds from State income tax

and that was held valid and, at page 21, in the

joint judgment of Justices Isaacs and Rich, Your

Honours will see, about a third of the way down the

page, that it was said that:

The loan is a transaction outside the

jurisdiction of the States; the interest is an

income of the lender created by the

Commonwealth ..... it may be surrounded with
such characteristics as to secure to the

Commonwealth the full benefit it desires to

obtain.

DAWSON J:  Mr Jackson, there must be limits to this concept

in this context. For instance, it must be beyond

the power, say, to say that no one shall say

anything that is not nice about a member of the

commission.

MR JACKSON: Well, Your Honour, subject to the construction

of the term "nice", what Your Honour says may well

be right.

DAWSON J: Well, would that be beyond power?

MR JACKSON: Well, Your Honour, I suppose it would be

difficult to tie that to the power; all one would

be doing would be picking the commission as a

subject of the power then.

DAWSON J: Yes, well, is not the exercise we are engaged on

one of fixing the limit?

MR JACKSON: Well, Your Honour, that may be. What I am

seeking to demonstrate, though, is that whatever

Nationwide(2) 119 3/12/91

the precise limit may be, a provision which has the

effect of bringing the commission into disrepute

is, to put it shortly, a provision the proscribing

of which is within the power. Your Honour, if one

were to say, in respect of a corporation created

under a Commonwealth law, that in an action brought by, for example, the corporation against the person

who had defamed the corporation, that a particular

defence was not available, that would be something

within power, in our submission. Your Honour, one

is really talking about the integrity of the body

and measures to protect it.

DAWSON J: In that context, it is not self-evident that some

remark about a member of the commission, not in his

capacity as a member, which brings him into

disrepute, has anything to do with the wellbeing of

the commission itself.

MR JACKSON: Well, Your Honour, if one has a situation where

he is brought into a disrepute which, if it may be
assumed, is in some way unwarranted, then what it

does do is to make the commission a body which, in

the eyes of the public whose representatives resort

to it, is less worthy of respect.

McHUGH J: Well, supposing a newspaper said one of the

commissioners belts his wife up every night; now what about that? That brings him into disrepute,

does it not? Is that reasonably incidental?

MR JACKSON:  Your Honour, the first thing would be whether

it does or does not. I do not know that it

follows, with respect, that the particular example
is one that would bring him into disrepute in his

capacity as a member of the commission.

Your Honour, one has to say that in the end there

has to be a relationship between the two. I am

conscious of the fact that if one went to America,

for example, some of the cases there would say that a person's conduct cannot really be divided up into

parts and that a person who has any official

function is a person whose whole life is open to

discussion. It all bears up on it but,

Your Honour, that has not ever been the case in

Australia.

DAWSON J: Where do you put the limits? Could a law saying

no one shall criticize the commission be within

power?

MR JACKSON:  Your Honour, there would be difficulties in

that regard, of course, because it - - -

DAWSON J: What would the difficulties be?

Nationwide(2) 120 3/12/91

MR JACKSON:  The difficulty would be, Your Honour, the one

to which I adverted, with respect, before. That

is, that what one is then doing is treating the

commission itself as being the subject of the

power. The true situation is that one has to look

for the relationship not between the commission and
the exercise of the power, but rather to look to

see the relationship between the exercise of the

power and, in the end, the terms of section

51 ( xxxv).

Your Honour, undoubtedly, there are questions of degree in all these things but that is what one

is looking for; not looking to see just whether

the particular law is a law which in some way

protects the commission. What one is looking to

see is whether it is a law which is related back to

section Sl(xxxv).

DAWSON J:	I appreciate that.
MR JACKSON:	I am sorry, Your Honour, perhaps I cannot take

it much further, but the answer I was seeking to
give Your Honour was that - the question that

Your Honour put to me in that example was one where all one would be seeking to do is to say something

about the commission. Your Honour, it may or may

not be the right way to characterize it; that is

the way in which I would seek to.

MASON CJ: Mr Jackson, I must confess I am at a loss to

understand why you have taken it this far, because

I had not understood the issues in this case to embrace the question whether, but for the express

and implied prohibitions, the legislation was

within power.

MR JACKSON:  Your Honour, I am sorry, I thought it had,

albeit briefly.

MASON CJ: Maybe you are right. Obviously some of the

questions put to you seem to indicate that it is a

live issue in the case.

MR JACKSON:  Your Honour, I understood it to have been put

on the last occasion as part of the argument on behalf of the applicant that that was the case,

that it was absent power, and that one of the ways

in which it was put - indeed from one of

Your Honours - in the course of the argument was

that perhaps it was not a question of a

prohibition, but rather a question of an absence of

power.

Your Honour, I am sorry if I am taking some

time to do it, but if I could just say this, that

one of the reasons for that, with respect, is that

Nationwide(2) 121 3/12/91

there are many cases - and I shall not trouble

Your Honours with too many more of them - which do,

power and what Parliament chooses

in our submission, support, and support strongly, of Parliament's

the notion that many of these things are for

to do in a particular case.

BRENNAN J: It may be of course, Mr Jackson, that none of

the powers contained in section 51 can be construed

as extending so as to interfere with the implied

guarantee.

MR JACKSON:  Your Honour, that is an argument to which I

will come, if I may. Could I just say two things

about it before I do. The first is: what is the

implied guarantee? It is not an easy question to
answer, with respect, and a question which

different parts of the world have answered in

different ways at different times.	Your Honour,
that is the first thing.

The second thing is that it is only once one

has done that one can see what section 51 says on what Your Honour was putting to me but one really would wonder why one starts with the unexpressed

rather than the expressed.	Your Honour, perhaps I
will develop that a little later.	The answer would

be that in our democracy we relied on the Parliament

rather than to enumerate a series of so-called

guarantees.

Your Honour, I was going to move to Australian

Coastal Shipping Commission v O'Reilly,

(1962) 107 CLR 46, where a Commonwealth law Mhich
exempted the commission from certain State taxes

was held valid, pursuant to section 5l(i), and the question of the ambit of the legislative power, so

far as it applied to the protection of corporations

created by the Parliament, was discussed by

Chief Justice Dixon at page 55, going on to

page 56. And, Your Honours, if one looks at the

second sentence on page 55, the issue is referred

to or the commencement of the discussion occurs.

Then, about five lines down:

The legislative power seems ample not only to

enable the Parliament to establish a corporate

agency of the Commonwealth to carry on an

overseas and inter-State shipping line, but

also to protect the Commonwealth Government

body from what may be considered the

embarrassment of taxation by the various

States. It is not material to enquire into

the motive of the provision. Its validity

depends upon its relevance to, or connexion

with, the purpose.

Nationwide(2) 122 3/12/91

And then there is the passage from McCulloch v

Maryland and Your Honours will see, two-thirds of

the way down the page, the quotation:

In the exercise of this power to protect the

lawful activities of its agencies Congress has

the dominant authority -

et cetera. And, Your Honours, the passage goes on

to the next page, and if I could take Your Honours

to about a quarter of the way down the page:

The doctrine propounded in the foregoing passages applies to federalism in Australia.

Given the power in reference to a subject

matter of legislation to set up a federal

governmental corporation, the power of the

Parliament extends to excluding the imposition

of State taxes on its operations and the
exclusion of liability on the part of the

corporation to State taxes upon its

activities.

And, Your Honours, the passage really goes through

to the end, I suspect, of the reasons for judgment.

McHUGH J: But I thought, on the last occasion, your

Mr Sackar conceded that the Commonwealth could pass legislation for the purpose of protecting the commission in the performance of its functions but

he said that this went too far.	He was not
disputing a principle - - -

MR JACKSON:  Your Honour, I am sorry, but to answer the

assertion that it goes too far one needs to see the

ambit of the principle and the principle is very

widely expressed in the passages to which I

referred. Your Honour, if I could just say this,

the means is one that can be chosen by the

Parliament. If Parliament is able to establish the

body or, indeed, to authorize its creation it is	something that it can protect and something that	says, "You shan't bring", to put it shortly, "a
body that we have created into disrepute", is a
provision that is clearly related, we would submit,
to the subject-matter of the power.

DEANE J: Does not a lot depend upon construction? If it

does bring the body into disrepute, as in

Bell v Stewart, that is one thing; but if you be wrong on your construction of bringing a member of the commission into disrepute, do you still say

that that is it within power?

MR JACKSON:  If Your Honour "member of the commission" does

not mean member of the commission in his capacity

Nationwide(2) 123 3/12/91

as a member of the commission, no, I would not. It

would be difficult to find -

DEANE J: But even if it means in his capacity as a member

of the commission if it, for example, prevents what

Justice Brennan put to you, and that is disclosing

the fact that a member of the commission has

accepted a bribe, because that brings him into

disrepute, would you still say it is within power?

MR JACKSON: Perhaps I have not understood what Your Honour

just put to me.

DEANE J:  If it extended to saying or to precluding an

assertion that a member of the commission had

accepted a bribe, would you still say it was within

power?

MR JACKSON:	Your Honour, yes, it would be within power. Whether it be a proper exercise -
DEANE J:	Even if it were in fact true and justified the

litigation?

MR JACKSON:  Your Honour, the answer is yes, as a matter of

power. Could I just say that there are many

occasions when it is necessary for Parliament to

enact provisions, or thought necessary by

Parliament - perhaps I could put it that way - to

enact provisions which appear fundamentally

unpalatable to one, if one is looking at it from a

libertarian point of view. I do not mean that in the slightest degree offensively. What I mean by

that, Your Honour, is this. If one takes, for

example, provisions that may be necessary in

relation to the exercise of the defence power to

prevent the disclosure of matters perfectly true in

order to promote the purpose of that power. They

do not necessarily have to be ones which relate to

the defence of the nation in that sense.

Could I give Your Honour an example. If one were to assume, for example, that the Australians

were endeavouring to negotiate a defence treaty
with another nation, and at the time when that was

being done an officer of the Commonwealth, or

someone holding an office for the purposes of that,

were about to be the subject of a disclosure

concerning the personal conduct of that person, and

it may even be a disclosure that at some point in

that person's official career, that person had

accepted a bribe. It may be that if there were a

law that prevented the disclosure of that at that

time, namely the particular point of the

negotiations, that would be something that, whilst

it may be unpalatable to say there could not then

Nationwide(2) 124 3/12/91

be a disclosure of that officer's status in

relation to taking the bribe -

DEANE J:  Mr Jackson, that may be, but what we are talking

about, on this construction, is a law which says no

one shall disclose wrongdoing by any member of the

commission.

MR JACKSON:  Yes, Your Honour.

DEANE J:  I was not saying that it was not within power. I

was just trying to identify whether there was an

area of dispute. It seems there is.

MR JACKSON:  Yes, Your Honour. If one were to take that

view of the meaning of it, on the question of

whether it would be within power, we would submit,

yes, it is. That is not, of course, what we submit

it means.

DEANE J:	I understand that.
BRENNAN J:	Mr Jackson, the implication of the answers that

you have given to Justice Deane seem to me to go a

little more broadly, do they not? If the

Parliament can pass a law which thus protects the

commission, can it not pass a like law to protect

the Parliament itself and the executive government?

MR JACKSON: Well, it depends what one is protecting it

from.

BRENNAN J: Well, from the disclosure of wrongdoing.

MR JACKSON:  Your Honour, that is the point at which one

gets on rather sounder ground for providing for

implications, because there are some that can be

drawn, in our submission, from the earlier chapters

of the Constitution relating to the power. What I

mean by that, Your Honour, consists of two broad

things - and may I perhaps say a little more about

it later.

The first broad thing is this, that one can

draw from the existence of a Parliament with

prescribed terms which cannot be exceeded, with

particular provisions for there to be members of

the Parliament, for the members in the case of the

Senate to be drawn from the various States, and the

Territories, and matters of that nature, that the

Parliament is to function and the functioning of the Parliament involves members being able to

participate in it. Now, Your Honour, participation in it, one would think, is not something that is to

be contemplated as being a limited participation,

except to the extent dealt with by the second

matter to which I will come. So the implication,

Nationwide(2) 125 3/12/91

if there is to be one, is to be drawn from there,

and it relates to the functions of the members of the houses and the performance of their functions

and, perhaps to the extent to which it is

appropriate, for persons who are citizens or

perhaps electors, to communicate with them. That

is one thing, Your Honour.	May I come back to
that?

The second aspect I would refer to is this,

that even in relation to the Parliament,

Your Honours, the terms of the Constitution contemplate that Parliament, to some degree, will

make provision for its own regulation. And it is

not impossible, of course, for there to be times

when issues cannot be raised in Parliament and I am

not presently able to tell Your Honours whether,

during World War II, there was a period when

Parliament sat in camera, as it were, but it is certainly not an unknown thing in the United

Kingdom. So there are times, Your Honour, when

even at the heartland, one would think, of the
constitutional process, there is room for exclusion

of the ability to discuss matters freely.

Your Honour, that is something which, in our

submission, militates against the notion that one

implies into the Constitution a general guarantee

or freedom of speech of some kind and one which

cannot be taken away.

McHUGH J: But there is an anterior question, is there not,

and that is whether or not the power is incidental

to the main head of power, quite apart from any

question of constitutional implication.

MR JACKSON:  Yes, Your Honour. I am simply seeking to

answer what His Honour Justice Brennan put to me.

Yes, of course, Your Honour.

Could I just say one other thing,

Your Honours, perhaps in answer to Your Honour

Justice Brennan and again as I have said more than

once I will come back to the issue a little bit

later, significantly later I think - but

Your Honour it is this: that if one looks, for

example, at, say, the passage one sees from Quick

and Garran that my learned friend relied on this

morning relating to the fourteenth

amendment - should or should not a provision like

it be adopted in Australia - what was dealt with

there was not really the question whether there was

a guarantee of freedom from Commonwealth

legislation; it was a question whether there was a
guarantee of the relevant freedom in relation to

State legislation, because what was in

contemplation was that the freedoms were guaranteed

Nationwide(2) 126 3/12/91

by, in effect, the Commonwealth legislative power

and to some extent by the Constitution - freedom
from State action, Your Honour. Your Honours, I am

sorry I have gone a long way away from where I was.

What I was going to move to was this: in

Airlines of New South Wales Pty Limited v The State

of New South Wales and Another (No 2),

(1965) 113 CLR 54, Commonwealth regulation of the

safety, regularity and efficiency of intrastate air

navigation was held valid as law under

section 51(i) as being concerned with the physical

protection of interstate trade. Could I just give

Your Honours the page references: pages 92,

Chief Justice Barwick; page 115, Justice Kitto;

and page 149, Justice Windeyer.

Your Honours, the issue was dealt with also by

Chief Justice Gibbs in Actors and Announcers Equity

Association v Fontana Films Pty Ltd,

(1982) 150 CLR 169. Your Honours, that was a case

where section 45D of the Trade Practices Act was

held valid in part under section 51(xx), and

Your Honours, at page 183 His Honour said almost

half-way down the page:

A law may be one with respect to a trading

corporation, although it casts obligations

upon a person other than a trading

corporation.

Then, Your Honours, it is the whole of that

paragraph and towards the end His Honour said:

It does not follow that section 5l(xx)

empowers the Parliament to pass a law

prohibiting any conduct that might damage a

trading corporation ..... However, if the
prohibition is directed to conduct that is

calculated to damage the trading activities of

the trading corporation there seems no reason

to doubt that it is within the scope of the

power.

That, of course, Your Honours, reflects the

narrower view of the ambit of laws which may be
made under section 51(xx), but His Honour clearly

enough speaks of there being a valid -

prohibition is directed to conduct that is

calculated to damage the trading activities -

whatever they may be, of a trading corporation.

Your Honours, one notes that it is in a sense

something of an extension of the notion to which I

have earlier referred because the authorities and

bodies before were bodies which were themselves

Nationwide(2) 127 3/12/91

emanations of the Commonwealth as distinct from

bodies which might be formed pursuant to its laws

or pursuant to laws that were not Commonwealth ones

at all. I should also have referred Your Honours

to pages 206 and 207 in the judgment of Your Honour

the Chief Justice.

Now, Your Honours in Davis v The Commonwealth,

(1988) 166 CLR 79, in the joint judgment of

Your Honour the Chief Justice and Your Honours

Justices Deane and Gaudron, Your Honours said at

page 97:

If it be assumed that the Authority is a

financial corporation, then the corporations

power -

under section Sl(xx) -

would authorize a law protecting the

Authority's right to the use of its registered

name and the symbols by which it was known by

prohibiting the deceptive or confusing use by

others of that name or symbols or -

similar things, and, Your Honours, that appears in

the first new paragraph on page 97.

Your Honours, speaking of the appropriateness of there being provisions to ensure acceptance of

the arbitrator and arbitrators and the commission,

one can see a number of references in that regard,

sorry, perhaps I might start that again. If one is

looking to see whether it is appropriate to have

provisions of this kind in relation to a tribunal

of this kind, one can see a number of additional

references. Your Honours should have a book which

is the supplementary materials book prepared,

provided on the last occasion, and Your Honours

will see from the index that it contains a number

of matters, including in sections C and D extracts

from some reports and also some texts. Could I

refer Your Honours to page 71, and page 71 is an

extract described from the report that Your Honours

will see, the first page of it, page 70, commonly

called the Hancock Report 1985 and in

paragraph 1.13, at page 71, Your Honours will see

the general proposition that:

An effective system of industrial relations

must have the confidence of the participants,

or a substantial proportion of them, and the

broad support of the community. The formal

processes and structures are only one

determinant of effectiveness: the attitudes

and behaviour of the parties, too, have an

Nationwide(2) 128 3/12/91

important bearing upon the system and whether

it meets its objectives.

Now, Your Honours, that of course is stated in a

broad fashion but what it does indicate is a

perception that the maintenance of the way in which

the - or the good repute of the commission, if I

can put it shortly, is something that is of some

importance.

Your Honours, the question of the

appropriateness of provisions dealing with contempt

in relation to tribunals has been dealt with in a

number of other reports. Could I refer
Your Honours to the Australian Law Reform

Commission Report on Contempt 1987 which commences at page 55, and Your Honours will see, at page 56,

the notion of "Contempt by 'scandalising' is

outlined".

Your Honours, at page 61, in paragraph 753,

will see there is a short summary of the current
legislation dealing with royal commissions and

standing commissions and tribunals, that is set out

in fact in appendix D to the document which

Your Honours will see commences at page 64.

Your Honours will see that the Law Reform

Commission in paragraph 753 said that:

he-general tlr:r ast-of-the-eommis s .ion-½i~

recommendations ..... is to substitute as r as

possible specific statutory offences forte

common law of criminal contempt. }

And they then dealt with the question: /

With respect to commissions and /

tribunals ..•.. whether ..... there should be a

residual 'deemed contempt' provision.

Scandalizing was dealt with at paragraph 777 at

page 62, and at paragraph 779 on page 63, the

question of "Standing commissions and tribunals"was dealt with. Now, Your Honours, as is apparent from

what is in paragraph 779 and 780, the matter is one
on which no doubt different views might well be

taken but the fact that one person might have a

view on the desirability of having a provision,
another might have another view, does not mean of

course that it is not open to Parliament to prefer

one to the other.

Your Honours, a report called for short the Phillimore Report appears later in the same

document. If I could take Your Honours to page 82,

it is a Report of the Committee on Contempt of

Court. The membership of the committee is at

Nationwide(2) 129 3/12/91

page 83. The topic, Scandalising the Court, was

dealt with at pages 84 and 85, and that discusses

that notion.

There was then a 1969 tribunal chaired by the then Lord Justice Salmon which commences at page

88.     It was a report on the law of contempt as it

affected tribunals of inquiry. Your Honours will

see, at page 95 there is a discussion which

commences at paragraph 16, of whether the law of

contempt should continue to apply to tribunals of

inquiry. That discussion proceeds through page 96

through to the end of paragraph 20. At

paragraph 21, they formed the view:

We are therefore satisfied that the law of

contempt, although in a clarified and modified form, should continue to apply to Tribunals of

Inquiry. A number of questions arise in this connection.

You will see item No (iv):

Attacks upon the integrity of members of

Tribunals of Inquiry.

Then that is dealt with at page 97, paragraph 35.

Your Honours, that issue is discussed throughout

paragraph 35. Paragraph 36:

It is however a contempt of court and we

consider it should undoubtedly remain so, to

make an unjustifiable attack upon the

integrity of a judge or a member of a Tribunal

of Inquiry.

Then halfway down the same paragraph:

It is clearly of the greatest possible

importance that nothing should be done which

might tend to undermine the public confidence

Your Honours, could I refer also to the conclusion in the judiciary and in Tribunals of Inquiry.

at page 100. Your Honours will see, about three

quarters of the way down the page - I should say,

Your Honours, in paragraph 41 there is a draft

amendment to a particular Act. I would refer

particularly to the paragraph three quarters of the

way down the page which refers to making:

any unjustifiable attack upon the

integrity •....

et cetera. Then the summary at page 101, item 6.

Nationwide(2) 130 3/12/91

DEANE J:  Mr Jackson, would it be accurate to say that

41(2)(e) precisely states what you say is the

correct interpretation of clause (ii) in

section 299?

MR JACKSON:  Your Honour, I think the answer is yes, but

with a qualification, the qualification being that

where it speaks of any unjustifiable attack, it may

be that the justification is a matter of defence
rather than a matter of constitution of the

offence.

Your Honours, that report was, as tends to

happen with reports, then the subject of comments

by a governmental body. That appears at page 102.

Your Honours will see that, at paragraph 45 on page

104, the view was taken that what had been

recommended by Lord Salmon's committee relevantly
was already the law.

Now, Your Honours, I refer to that simply to indicate that the notion that it is appropriate to

have provisions of this kind as provisions relating

to tribunals created pursuant to a legislative

power is not a notion of something which is remote
from the exercise of the power; it is something

which is within it and something which is related

to the exercise of the power. Your Honours will

see that in the same book there are references in

section B, commencing at page 38, to the other

enactments in which rather similar provisions

appear.

Your Honours, I do not mean to create the

impression that they are exactly the same or that

they are all as wide as the particular provision,
but could I take Your Honours to them very briefly:

The Australian Federal Police Act appears at

page 38 and an Australian Federal Police Tribunal

is created under the Act; section 53(d)(ii) uses

words that seem exactly the same as those of the provision presently in question. The

Bankruptcy Act 1966 in section 264E(e) at page 41 uses rather similar language in 264E(e)(ii).

Your Honours, the next document, I think, is

the Bounties Procedure Act which does not, but if

one goes to the Coal Industry Act, commencing at page 44, Your Honours will see section 48A(d) is

again a somewhat similar provision.

Now, the Courts-Martial Appeals Act 1955 commencing at page 46, in section 46(d)(ii) uses

similar language; Your Honours, as does the

Navigation Act 1912 page 49,

section 370B(3)(d)(ii); the Public Service

Arbitration Act, Your Honour, section 22A(l)(d)(ii)

Nationwide(2) 131 3/12/91

at page 52. And, Your Honours, those provisions,

of course, are simply indications no doubt of a

particular usage of a statutory phrase used in

drafting, but the use of them by the Parliament, in

relation to a number of really quite different

contexts, tends to indicate, in our submission,

that provisions of this kind are provisions which

cannot really be seen as remote from the power to

which they ultimately relate.

Your Honours, those are the submissions I wish

to make in relation to the first of the three heads

with which I wish to deal. Could I mention a

second one, and I will do so very much in passing.

It concerns an argument advanced by our learned

friends earlier concerning the "peace, order and

good government" words in the first part of

section 51. Could I simply submit to Your Honours

that those words do not, in any relevant respect,
limit the ambit of the legislative powers

contemplated by the various placita, including

section 51(xxxv), and simply give Your Honours the

references to some pages in Polyukovich v The

Commonwealth, (1991) 65 ALJR 521 at pages 525,

558-559, 571-572, 597 and 605.

Now, Your Honours, may I move then to

section 92. In dealing with the application of

section 92 to the expression "intercourse among the

States", one is faced with an initial conceptual issue, and that is the issue which is caused by the

overlapping of the three concepts of trade,

commerce and intercourse.

Your Honours, as is apparent from the outline

of submissions, we accept the proposition that the

term "intercourse" in section 92 comprehends some

activities which are not within. the concepts of

"trade" and "commerce" in the same provision.

However, it is likely that activities which do

constitute trade or commerce among the States will

also consist of or involve intercourse.

It is difficult, in our submission, to think of any completed - and I use the word for a

particular reason - any completed transaction which

would be interstate trade or commerce which would

also not involve intercourse. It is possible that

some transactions, for example an agreement made in

the Australian Capital Territory for the sale and

delivery of goods from Adelaide to Perth, the

agreement being made by persons present in the

Australian Capital Territory at the time of its making, would not amount to intercourse if the

transaction, the subject of the agreement, was

uncompleted. But if the transaction was completed

by the delivery of the goods in accordance with the

Nationwide(2) 132 3/12/91

contract then, of course, one has a situation where

there is trade and commerce as well as intercourse

involved.

We have given - if I could ask Your Honours to

look for a moment at our outline of submissions -

in paragraph E2 on page 4 an example which shows,

perhaps deficiently in one respect, the range of
possibilities, and that is that if a purchaser of

goods goes interstate to negotiate a purchase of
goods for delivery to the purchaser's home State by

road, and if arrangements for delivery are made by

an interstate telephone call, and if payment is

made by post, then interstate trade and commerce

and intercourse are all involved. Your Honours, I

said it was perhaps deficient in one respect, but

perhaps to ensure that commerce as well is involved

one should say that payment is to be made by a bill

of exchange against documents.

But, Your Honours, again - and again, I would

refer to that same paragraph - if a person is a

passenger on a private interstate visit, when

travelling across a border by bus, then the person,
one would think, is personally engaged in
intercourse in that sense but, on the other hand,

the transport operator is engaged in trade. If

Your Honours go from one State to another for the

purpose of sitting in another State, then I would

hesitate to say Your Honours were engaged in trade

or commerce but, the airline is carrying

Your Honours there would be engaged in trade or commerce.

Your Honours, if one is dealing with a

situation such as that, a situation where the

person is travelling non-commercially - if I could

use that expression for the moment, and I will come
to indicate what we would submit that means in a

moment - if one is dealing with the case where a

person is travelling non-commercially, but

travelling by the use of some means of transport

for which the person has to pay or was paid for, it

does not really assist to say that the issue that

arises is resolved because section 92 itself
refers, specifically, to, for example, internal

carriage, because to say that really raises rather

than answers the question.

Your Honours, one has, of course, in a case

such as the present a situation where, no doubt,

The Australian conveyed information to those who

read it inasmuch I suppose as a suburban newspaper

might although with a different subject-matter.

Your Honours, one should not assume that all

newspapers are published interstate. There are

many newspapers that are not.

Nationwide(2) 133 3/12/91

But one does have a situation where the

conveying of the information to those who read it

is conveyed by a medium in relation to which the

applicant, in publishing it and distributing it for
sale interstate, is itself engaged in interstate

trade.

Your Honours, one does not doubt, of course,

in relation to newspapers that are distributed in

more than one State that newspaper publishers may

publish the newspapers for a variety of reasons,
but one would think that in the case of the major
newspapers they are published not just for the
purpose of conveying information but that the
desire to obtain some remuneration for the object

which has been sold is also present.

But, Your Honours, the fact that the same

event so frequently will be trade or commerce on

the one hand and intercourse on the other does mean

that it is necessary to seek to arrive at some

reconciliation of the approach to be taken.

Your Honours, I am sorry I have taken a minute

to get to that. May I say just one more thing

before doing so and it is this, that the issue is
not just related to the communication of

information by newspapers, for example. It

applies, of course, to such things as books,

magazines or trade journals or films or recordings,
many of which are sold as items of commerce in

their own right and, also, Your Honours, many such

documents are sold as ancillary to goods which

themselves are sold.

Your Honours, if one looks, for example, at

manuals for the use of computers or video recorders

or service manuals for machines, they undoubtedly

convey information but they form an integral part

of the sale of other physical objects. If one

took, for example, a simple example, namely an

ordinary household game that one could play sitting

around the board, there is not much point selling

the game without the instructions.

But if one looks at, say, a computer, then it

is not much point selling the computer without selling information about the way in which the

computer is programmed. And, Your Honours,

depending on one's mechanical or computer and

mechanical skills, I suppose, if one obtains a

video recorder or some ordinary household item of

that kind, these days it would be very difficult to

operate one without having either the instruction

book or children.

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And so, Your Honours, one does have a

situation where one cannot really divorce

completely the communication of information from

the medium by which it is communicated and by the

fact that it may be delivered with other goods to

which it relates.

Your Honours, in Cole v Whitfield, 165 CLR,

the Court referred to the fact that if the

protection accorded to intercourse, or assumed to
be accorded to intercourse, were accorded to all

forms of interstate intercourse, notwithstanding

that those acts were or were part of trade or

commerce among the States, the situation one might

have would be, to use the expression from earlier

cases, that anarchy would result. Your Honours, I

am sorry, I have just lost that passage. Perhaps I

could come back to it in a moment.

It is apparent, in our submission, that there

would be considerable difficulties if one were to

apply a test that gave intercourse the widest

possible meaning and then applied that to trade and

commerce. Your Honours, we would advance several

possible approaches to the resolution of the issue,

as between trade and commerce on the one hand, and

intercourse on the other. Our first submission is

that the test to be found in Cole v Whitfield is to

be applied where it is contended that measures

affected occurs in or in relation to interstate

inhibit trade, commerce or intercourse among. the

trade or commerce.

Your Honours, I will come back to the reasons

for urging that course upon the Court in just a

moment, but may I first indicate the area to which,

if that were adopted, the Cole v Whitfield test

would not apply.

Cole v Whitfield test would not apply would be Now, Your Honours, the area to which the personal movement interstate; the movement of goods

and the sending and receipt of communications for

purposes not being in or in relation to trade or

commerce. Now, Your Honours, that does not just

cover such matters as visits interstate for

entirely private purposes, such as to go on

holidays or to visit a relative or to see a

football match or to see a show. It covers also

movement for such purposes as governmental or

official purposes and, Your Honours, it covers, one

would think, occasions such as an occasion when,

for example, an amateur sporting person playing for

a State in an interstate competition was going

interstate; one might not regard that as an

entirely private visit, but at the same time it

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might not be a visit where that person was engaged

in trade or commerce. What I am seeking to say,

Your Honours, is simply this, that if one is

looking at the areas which constitute intercourse,

not involving trade or commerce, one has a

situation where it is slightly wider or somewhat

wider than the case of persons who are simply going

away for entirely private purposes.

Now, Your Honours, the Cole v Whitfield test

seems, in some aspects at least, inappropriate to

that area which I would describe as intercourse.

It seems generally inappropriate because of course

no element of protectionism is involved, or no

element of protectionism is usually involved.

Your Honours, could I just say this, that it is

possible to imagine cases where there might be an

element of protectionism in restrictions upon what

would otherwise be regarded as at the heart of

intercourse for the purposes of section 92. Could

I give Your Honours one example? In order to

protect an industry of a State from losing a

skilled workforce, a State might seek to impose a

restriction upon the movement of workers from that

State.

Now, Your Honours, restrictions do not always

have to be imposed blatantly to be restrictions,
and if one had a circumstance where a restriction
upon movement of skilled workers from a State

without having given first three months notice of

intention to leave, that would be an example of

that nature.

BRENNAN J:  Do you make a complete dichotomy between trade

and commerce, on the one hand, and intercourse on

the other?

MR JACKSON:  Your Honour, the answer is no, but Your Honour I do need to explain that. We recognize, as our

submissions indicated at the start on this topic,

that most activities which constitute intercourse

will also be part of trade and commerce.

Your Honour, it is very difficult - if one took the

majority of them they must fall within trade and

commerce. So that one has a situation - - -

BRENNAN J:  I thought you were putting it the other way

round: most trade and commerce was part of

intercourse?

MR JACKSON:  Your Honour, I am sorry, I have put it badly.

What I was seeking to convey is that trade and

commerce, except in, I think, the one instance to

which I referred earlier that is the uncompleted

contract made out of the State, would almost

certainly involve some aspect of interstate

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intercourse, either the movement of goods the
movement of document or the making of

communications interstate, so that the term trade and commerce will involve intercourse. Not every

aspect of interstate trade and commerce will,

itself, be intercourse because, Your Honour, one

could have, to take one example, an agreement made

here for the sale of goods from New South Wales to

Victoria.

In a sense the interstate trade, on one view

of it, might in part be constituted by the making

of the contract. Maybe it would not. Maybe it

would. But, Your Honour, without seeking to find

an exact example one can imagine that not every

aspect falling within the concept of interstate

trade and commerce is necessarily involved in

intercourse, but trade and commerce will

ordinarily, almost always, involve some aspect of

intercourse.

Now, that means that one has to decide what

test to apply. Your Honour, in doing that one is

left with a situation where it is possible to adopt

a number of approaches. One approach would be to

say there is an element which we will call

"intercourse" which, in some cases, will be the

only thing.	A person walks across the border, then
that is interstate intercourse.	A person makes a

telephone call to a relative for a private purpose

in another State - interstate intercourse. On the

other hand, there is interstate intercourse

constituted by commercial activities. There is not

a complete overlapping. And, Your Honour, the

difficulty arises in circumstances where there is

the overlapping. What is the test to be applied?

Your Honour, if one were to say that, for

example, "reasonable regulation" is the test to be

applied to anything that involves intercourse, one

wonders why Cole v Whitfield was decided because

almost all of the activities covered by Cole v

Whitfield would fall within an intercourse test. If, on the other hand, one says the Cole v

Whitfield test is the one that is to apply

throughout, then it seems inapt to apply to aspects

of intercourse which do not involve trade and

commerce. So that, Your Honour, it becomes

necessary to decide what in the end the test should

be. I am sorry, that is again a long answer to

Your Honour's question.

BRENNAN J: Are you saying that if there are two tests, one

applicable to trade and commerce, one applicable to

intercourse, it is necessary in each instance to

determine whether the particular transaction falls

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within the category of either trade or commerce or intercourse, it being assumed that it cannot be in

both?

MR JACKSON: That the same test cannot be applied.

BRENNAN J:  And therefore the same transaction is not in

both?

MR JACKSON:  The same transaction for the purposes of the

application of the test, Your Honour.	I am sorry
to be obscure about that.

BRENNAN J: Yes, for the purpose of the application, the

test.

MR JACKSON:  Yes. One says if it is trade and commerce,

Cole v Whitfield. If it is not trade and commerce

but is yet intercourse, one of the tests that I

will try to urge upon Your Honours tomorrow.

MASON CJ:  Mr Jackson, we might adjourn now and we will

resume at 10.15 tomorrow.

AT 4.18 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 4 DECEMBER 1991

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