Nationwide News Pty Ltd v Wills

[1991] HCATrans 94

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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

Nationwide(2) 1 16/4/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 16 APRIL 1990, AT 10.16 AM

Copyright in the High Court of Australia

MR J.R. SACKAR, QC: If the Court pleases, in that matter I

appear with my learned friend, MR G. O'L REYNOLDS,

for Nationwide News, the applicant defendant.

(instructed by Gallaghers)

MR M.S. WEINBERG, QC: If the Court pleases, I appear

together with my learned friends, MR J.W. SHAW, OC

and MR M.J. WALTON, on behalf of the respondent.

(instructed by the Commonwealth Director of Public

Prosecutions)

MR G. GRIFFITH, QC, Solicitor General for the Commonwealth:

If the Court pleases, I appear with my learned friends, MS S. KENNY and MRS. GAGELER, intervening on behalf of the Attorney-General for the Commonwealth in the interests of the respondent.

(instructed by the Australian Government Solicitor)

MASON CJ: Yes, Mr Solicitor. Mr Sackar.

MR SACKAR:  If the Court pleases, may I hand up the outline

of argument.

MASON CJ:  Thank you. Yes.

MR SACKAR: If the Court pleases, I indicate in advance that in respect of item No 4 on the outline of argument, whilst I propose to address the Court shortly, I

appreciate that there are considerable difficulties

in respect of advancing the argument in that form.

Consequently, my submissions will concentrate on

the matters 1 to 3. Before I commence, I

understand my learned friend, the Solicitor, has a

bundle of legislation which he wished to hand up

and I understand Your Honours have that.

MASON CJ: Yes, we have it.

MR SACKAR:  Your Honour, the Industrial Relations Act 1988

replaced, in its entirety, the Conciliation and

Arbitration Act of 1904 as amended. Relevantly for

our purposes, section 299(l)(d)(ii) was in the

Conciliation and Arbitration Act in substantially
similar form from about 1947.	May I invite

Your Honours to go to my learned friend's booklet

and I will just point out one or two provisions.

First, if I may ask Your Honours to go to page 2.

At page 2 Your Honours will see section 83. That

was the predecessor to what became section 111 and

then section 182 and now section 299 and that

section, as Your Honours will see, provided that:

No person shall wilfully insult or

disturb the Court, or interrupt the

proceedings of the Court, or use any insulting

language ..... or be guilty in any	manner of
any wilful contempt of the Court.

Nationwide(2) 2 16/4/91

Now in 1947, if Your Honours would turn to page 6

of the book, we see a provision at section 19 in

substantially similar form, and there are a number

of changes, importantly Your Honours will observe

(a) :

wilfully insult or disturb

and thereafter the provisions are not, it is our

submission, qualified by the word "wilfully".

At page 13, one finds in section 34, the

provision more like in terms the section we are
dealing with here. There was a slight change in
that (ii) in the 1947 provision talked about,

"bring a conciliation commissioner into disrepute".

That was by reason of some internal reorganisation

in the Act as to the roles of conciliation

commissioners and so on.

In 1956 one sees the provision, "to bring a

member of the Commission or the Commission into
disrepute", and the Commission, post-Boilermakers,

was made up of deputy presidents and the president

and conciliation commissioners.

TOOHEY J: It seems curious, Mr Sackar, the penalty of 100

pounds seems to have remained unchanged since 1904.

MR SACKAR:  Yes.

TOOHEY J: But is it right to say that the 1956 amendment

was the first time that imprisonment was introduced

as a part of the penalty?

MR SACKAR:  I think that may be correct, Your Honour. Might

I check that and confirm it, but it is my

understanding that that is the position. Now, we

wish to draw a number of matters to the Court's

attention in respect of the current Act, and might

I ask Your Honours to turn to that. Page 19 of the

booklet has the current section and Your Honour

will see there the penalties certainly maintain	imprisonment as one of the possibilities in the
case of a natural person.

Might I ask Your Honours, however, to have in

Industrial and there are a number of provisions I want to take

front of you the full copy of the

Your Honours to but perhaps if I can commence doing

that and Your Honours might note.

Section 3 are the objects of the Act and they

indicate:

Nationwide(2) 16/4/91

promote industrial harmony and co-operation

among the parties ..... provide a framework for
the prevention and settlement of industrial

disputes by conciliation and arbitration in a

manner that minimises the disruptive

effects ..... to ensure that, in the prevention

and settlement of industrial disputes, proper

regard is had to the interests of the parties

immediately concerned and to the interests

and prompt settlement of

(including the economic interests) of the the prevention

industrial disputes in a fair

manner ..... provide for the observance and

enforcement of agreements and awards ..... to
encourage the organisation of representative

bodies -

and so on, and importantly, we say -

to encourage the democratic control of

organisations, and the participation by their

members in the affairs of organisations; and

to encourage the efficient management of

organisations.

Without necessarily turning to it,

Your Honours will find, in Part II sections 8 and

following, the provisions dealing with the
establishment of the commission and qualifications
for appointment and like matters. In Part III the
jurisdiction of the Federal Court is set out at

sections 50 and following, and then finally we come

to Part XI which is the provision in which

section 299 is contained.

Now, under the old Act, if I may call it that,

Conciliation and Arbitration, the then Part XI contained a number of offences including this one in the form of section 182, but other offences concerning other matters were to be found in other

parts of the Act.

placed in the one part of the Act, Part XI. So relevantly, all offences were

It is our submission in the outline that the

words contained in section 299(l)(d)(ii) are clear,

we submit, and unambiguous. They purport to

proscribe adverse criticism of the commission or a

member and in terms which, although there are

certain limitations, for example, the criticism is

such as would -

bring a member of the Commission or the

Commission into disrepute.

But that, as we put in our note, means no more than

the ordinary meaning of the word "discredit",

Nationwide(2) 4 16/4/91

"disesteem", and would clearly encompass a whole

range of criticisms. But importantly, if our

submission be correct and the Act is construed as

we suggest it should, then it does proscribe, we

submit, a great deal of criticism which would not

otherwise be proscribed in accordance with the

common law principles.

It is impossible, we submit with respect, to

read either that provision down and/or by reading
some other word into the section. Nothing turns on

the word "disrepute". One cannot, with respect,

interpret that word so as to incorporate any of the

qualifications that one finds in common law cases

if one were looking at a case of scandalizing the

court, and I will refer the Court very briefly to

some of those qualifications in a moment.

Other parts of the section clearly deal with the performance of the functions of the tribunal,

and (a), for example maintains the word and notion

of willfulness, so far as "insult or disturb'' is

concerned:

(b) interrupt the proceedings -

is of wide import; much wider than the word,

"disrupt", had it been used.

(c) use insulting language -

clearly, we would submit, perhaps a necessary

protection for such a tribunal to enjoy, as indeed,

would be the improper influence -

by writing or speech ..... a member of the

commission or a witness

contained in (d)(i).

So the legislation, we submit, has been, on

its face, carefully drafted. There are degrees,

not only of seriousness, but the acts and conduct

contained in the section are of varying quality. contexts has been interpreted to mean "intend",

would mean "likely" in this context, and we rely

upon a number of authorities, and I will take the

Court briefly in a moment to one, because the Full

Federal Court's decision in Howard v Gallagher,

referred to on page 2, not only raises this

question but raises a number of other matters which

are important in terms of statutory construction

and it is a convenient way in which to raise the

various matters which we want to put submissions to

Your Honours about.

Nationwide(2) 16/4/91

So we say, therefore, that if one were to draw upon canons of construction applicable to either

penal statutes, the notions which were discussed in
cases like Beckwith and others, one is not aided,

we submit, in any relevant respect, because of the

clear and unambiguous nature of the words used.

The Federal Court has on a number of occasions

looked at section 182, the predecessor of this

section, and despite attempts from time to time to

have the Court read in various notions into the

section, and in particular (d)(ii), the Court has
rejected attempts to do so.

May I take Your Honours first to the Full Federal Court's decision in Howard v

Gallagher, 18 FCR 233. Mr Gallagher enjoys some

notoriety in the Federal Court Reports and it

appears, almost single handedly, has assisted in
the interpretation of this particular section's

predecessor. In this case it is unnecessary for me

to trouble Your Honours with how, in fact, it got

before the Full Federal Court. There was a complex

interlocutory history which does not touch any

relevant matter.

May I take Your Honours first to page 240 of the judgment at about point 3 in the judgment of

Mr Justice Northrop:

In the present case, counsel argued that

section 182(1) created offences with respect

to the Commission which was similar in nature

to conduct in contempt of court. I can see no

reason why section 182(l)(d)(ii) cannot create

an offence with respect to conduct engaged in
with respect to· matters no longer pending

before the Commission.

That was one point agitated by Mr Gallagher. A

little further down, having discussed the reasons

why he rejected that notion, said at about point 8:

That contention is rejected. The

Commission is a continuing tribunal performing

functions of importance under circumstances

where it is essential that there be public

confidence in the manner in which it performs

those functions. The need to maintain that

public confidence exists irrespective of the

nature of the power being exercised by the

Commission at any particular time.

And that adds, to some extent, some support, if one

needed it, for the rather wide import of (ii) to

bring a member of the Commission or the Commission

into disrepute, interestingly because earlier

provisions in the section refer directly to the

Nationwide(2) 6 16/4/91

exercise of powers or the performance of functions

or alternatively, it is clear from the terms (b)

that it is a particular context that the section is

directing itself to.

At page 243 point 6 in the judgment of

Mr Justice Keely, he said at about point 5,

point 6:

the defendant advanced three submissions.	The
first was that the informations did not
disclose any offence within the meaning of section 182(l)(d)(ii) of the Act, which, it
was contended, only related to events -

so it is the same point and he rejects that same

notion and gives a little more detail as to the basis of his rejection at 244 point 5, where he says:

In my opinion the ordinary meaning of

section 182(l)(d)(ii), read in its context, is that it forbids the use of words calculated to bring into disrepute a member of the

Commission, as such, or the Commission itself,

as such; it cannot be confined to events.

Now, a little further down on 243 the question of

the penal statute and the canon of construction
applicable to such a statute was discussed by him

and His Honour refers to Beckwith. I think it is

fair to say that His Honour, along with other

members of the court notwithstanding that canon of

construction, appear to have reads the provision

down in any way at all.

May I take Your Honours to the judgment of

Mr Justice Gray which commences at 245 and commence

reading at 247:

Counsel for the defendant argued that

each of the informations disclosed no offence
known to the law.	The argument was put on
several bases.

And, again, one sees the same type of point set

out. The Building Industry Act was referred to and

that had previously been rejected by His Honour

Justice Keely at 244. Over the page he says:

It was argued that this context dictates that

section 182(l)(d)(ii) should be construed as

dealing only with acts committed before or

during the Commission's exercise -

and he rejects that notion. He then sets out

section 83, the old section, and then quotes from

Nationwide(2) 16/4/91

Reg v Nicholls which was one of the cases dealing

with a scandalizing allegation and the full

quotation is helpful, but more relevantly, the end

of the quotation of the Chief Justice is helpful:

In one sense, no doubt, every defamatory

publication concerning a judges may be said to
bring him into contempt as that term is used

in the law of libel, but it does not follow

that everything said of a judge calculated to bring him into contempt in that sense amounts to contempt of court,tt

Now, having then dealt with other issues, at

the very bottom of page 248 Your Honours will note

that the question of whether or not there -

was an attempt to codify the law of contempt -

which was raised, His Honour later rejecting that

notion. But, may I take up the reading at

page 250, at about point 3:

The framer of s 83 of the C & A Act in 1904, if he or she was familiar with McLeod v

St Aubyn, could not reasonably have taken the

view that scandalising the court as a contempt

of court had become obsolete. Indeed, some

doubt might have existed after McLeod v

St Aubyn as to the proper method of dealing

with such a contempt. This doubt may have

contributed to the desire to create a separate

statutory offence. It is possible thats 83

may have represented an attempt to codify some

specific aspects of the law of contempt -

stopping there. A High Court, in a case called

Bell v Stewart which was one of the first cases in

this Court dealing with the then section 83, never

ever decided the issue of whether the then

section 83 was in fact a reflection of all of the

conduct which would have amounted to scandalising	the court.	It left the question open. And I read
on:

and to include a general reference to anything else that constituted contempt. Alternatively

it could have been the intention of Parliament

to clarify, or to extend in certain respects,
the law of contempt. Because of these doubts,

it is better to approach the task of

construing 182(l)(d)(ii) without

preconceptions based on the history of the

law.

It is always necessary to construe the

words of a statute in their context. It is

Nationwide(2) 16/4/91

not always safe to assume, however, that

Parliament intended to impose a range of

offences appearing in one subsection some

"flavour". It is especially unsafe to make

such an assumption where the words used in the

statute are quite capable of bearing a

rational meaning which would extend beyond the

"flavour" which might be derived from

neighbouring offences. There is every reason

why Parliament may have desired to protect the

Commonwealth Court of Conciliation and

Arbitration, and later the Commission, and

their members, from being brought into

disrepute at any time, not only when some

particular proceeding was in progress. The

Commission and its members carry out their

functions continually. They may be brought

into disrepute by words of a general nature,

without reference to any particular matter.

For instance, words conveying that a

particular member of the Commission would

decide matters in favour of whichever party

paid more money -

and so on -

For these reasons, no such limitation as

that suggested can be read into

section 182(l)(d)(ii) of the C & A Act.

Now, a little further on in the judgment, at

252, His Honour came to the question of penal

provision and quoted from the High Court's decision
in Gallagher v Durack, and it is important, if I
may just read this and the following page because

it does raise a number of important questions

concerning the qualifications which existed at

common law, and do exist, we submit, at common law.

That the words allegedly spoken by the

defendant involved criticism of the Commission

and one of its members cannot be gainsaid.

The difficult question is whether that

criticism was legitimate or otherwise. In one

sense, any criticism of the Commission or one

of its members might be said to be calculated

to bring the Commission or the member

concerned into disrepute. It was conceded on

behalf of the defendant that the word
"calculated" ..... does not require an
examination of the subjective intent of the

speaker of the words the subject of a charge;

rather the word "calculated" means "likely".

Section 182(1) is a penal provision. As

such, it must be construed strictly ..... It is

a reasonable assumption that Parliament, in

Nationwide(2) 9 16/4/91

enacting s 182(1), did not intend that the

Commission and its members should have greater

protection from criticism than would a court

and its judges.

Now, we submit that that is an unwarranted assumption on the part of His Honour because of the

clear and unambiguous use of the language, and one

can, for example, compare, only as a matter of

contrast, other federal Acts where, for example, in

the Trade Practices Act, at section 162, which is

not by any means peculiar, one sees in a very

similar provision dealing with contempt:

(d) do any other act or thing that would, if

the Tribunal were a court of record,

constitute a contempt of that court.

And the similar provisions are to be found in the Administrative Appeals Tribunal Act,

section 63; the Broadcasting Act, section 25AB, and

section 173 of the Copyright Act.

My learned friend, the Solicitor, and my

learned friend, the Director, will inform the Court

that the particular provision here under

consideration is to be found in some other federal

legislation in this form. I say no more about it

other than to indicate that, but we would be submitting at the end of the totality of the

submissions that that does not affect the argument

here. Moreover, it cannot be suggested that such

legislation is proforma or, as it were, de

rigueur, particularly in industrial tribunals,

although one of the Acts my learned friends will

refer this Court to is the Coal Industry Act.

TOOHEY J:  Mr Sackar, I am not clear what you are seeking to

draw from the judgment of Justice Gray. Certain

things are obvious, I suppose. One is that there

can be a breach of the provision even though a

proceeding is concluded. There can be a breach of

the provision without reference to any particular

proceeding. But is it implicit in the judgment of

Justice Gray that the statement must refer or must

be calculated to bring a member of the commission

into disrepute in relation to his or her activities

as a commissioner?

MR SACKAR:  Yes, I think that in the context in which he

decided that case it is certainly open to that

interpretation.	We put a wider interpretation upon
it.	Of course, the facts of that case would not

have suggested any wider import, but yes.

TOOHEY J:  When you say yes, you mean that the construction

that you urge is one that makes it an offence to

Nationwide(2) 10 16/4/91

bring a member of the commission into disrepute in
any respect, whether related to his or her

functions as a commissioner or otherwise?

MR SACKAR:  We submit that that is the thrust of the

section. May I just take Your Honour, if it is

convenient, back to section 299 and point out why

we submit that is so. Subsection (a) deals with -

a member of the Commission in the exercise of

powers, or the performance of functions, as a

member.

(b) clearly does; (c) explicitly again; (d) (i) is

not arguably so limited, but clearly the witness is

in the hearing context or the proceedings. And

(ii), we say, can be given the wide interpretation

we have advanced and it, in that context, would

appear to be unrestricted.	But that is the reason
why we put it.

Now, if I may go back to page 252, His Honour

goes on after having made that statement to quote
from the decision of this Court in Gallagher v

Durack, and may I read it:

"The principles which govern that class

of contempt of court which is constituted by

imputations on courts or judges which are

calculated to bring the court into contempt or

lower its authority had been discussed by this

Court in Bell v Stewart, Reg v Fletcher, and

Reg v Dunbabin was decided, and the judgment

of Rich Jin the last-mentioned case is

consistent with what had been said in the

earlier decisions. The law endeavours to

reconcile two principles, each of which is of

cardinal importance, but which, in some

circumstances, appear to come in conflict.

One principle is that speech should be free,

so that everyone has the right to comment in

good faith on matters of public importance,

including the administration of justice, even

if the comment is outspoken, mistaken or

wrong-headed. The other principle is that 'it

is necessary for the purpose of maintaining

public confidence in the administration of law

that there shall be some certain and immediate

method of repressing imputations upon courts

of justice which, if continued, are likely to

impair their authority' -

and there is a quotation there from Dunbabin.

The authority of the law rests on public

confidence, and it is important to the

stability of society that the confidence of

Nationwide(2) 11 16/4/91

the public should not be shaken by baseless attacks on the integrity or impartiality of

courts or judges. However, in many cases, the

good sense of the community will be a

sufficient safeguard against the scandalous

disparagement of a court or judge, and the

summary remedy of fine or imprisonment 'is

applied only where the court is satisfied that

it is necessary in the interests of the

ordered and fearless administration of justice

and where the attacks are unwarrantable'.

Now, within that quotation alone, we submit, are

clearly a number of qualifications which other

courts have placed upon conduct, whether one would

properly describe them as qualifications or matters
of defeasance, none the less it does not matter.

From our point of view there are a number of such

qualifications, and may I simply give Your Honours

some further page references to Dunbabin, I think,

and some of the other cases mentioned there.

If Your Honours would go to Dunbabin at

pages 442 and 443, the reference is set out at

page 253, 53 CLR 434.	I do not ask Your Honours to
look at it.	I will simply give Your Honours a

number of references where qualifications of the

kind he mentioned are set out. Taylor, 63 CAR

at 308; in Fletcher at page 257 where the term

"unjustified" is mentioned.

In Dunbabin, at 442 to 443, which I have

already given Your Honours, one finds the comment

that the common law does not protect judges from

imputations made against them as individuals and

further in Dunbabin, the law does not prohibit:

honest criticism, based on rational grounds of

the manner in which the Court performs its

functions.

And further in Dunbabin at 442, 443:

The law permits in respect of Courts, as of

other institutions, the fullest discussions of

their doings so long as that discussion is
fairly conducts and is honestly directed to

some definite public purpose.

In R v Nicholls, 12 CLR 280, at 285,

Your Honours will see reference to a defence of

fair comment as if applying in the law of libel.

They are the only references, if I may,

Your Honours, for the moment.

May I go back to 253, point 5:

Mationwide(2) 12 16/4/91

If anything, greater care is to be taken

in ensuring that free speech is not stifled on the ground that the Commission and its members

might be brought into disrepute, than is the

case where criticism of a court is concerned. of a legal nature, but of a controversial,

politician and economic nature. Its decisions

and processes have consequences which are very

far reaching. Some of its proceedings are

attended by intense publicity, and its decisions are often preceded by public

debate ..... In such circumstances, a generous

view should be taken as to the kinds of

comments which the law permits to be made

about the Commission and its members.

And then there is as an extracurial statement of

His Honour Justice Ludeke, where he indicates the

frequency with which such criticisms are received:

One further aspect -

down at the bottom, His Honours says -

of the reach of s 182(l)(d)(ii) must be

mentioned. It is that which concerns truth.

It can hardly be suggested that the making of
allegations of impropriety about the

Commission or one of its members could

constitute an offence if those allegations

were true. If that were the case, the

provision would constitute an effective bar to

the unearthing of vices in the system of

conciliation and arbitration -

and then His Honour goes on to talk about examples

of such, and over the page quotes a number of

references in a discussion on bias.

May I stop there and say this:  we would

submit that if His Honour was intending to suggest

that one could read, for example, into this

provision, a defence of justification, we would

suggest, with respect, that that is not capable of

being done. I am going to take Your Honours, in a

moment, to a decision of Mr Justice Pincus, dealing

with the very same section where he, too, was

concerned that comment, if it were true, were

capable of being made against members of this

tribunal, and he rejected the justification
defence, but the clear concern which Justice Gray

is talking about here, with respect, cannot lead,

if one reading of what he says is to this effect,

to an importation of a defence of truth in these

words.

Mationwide(2) 13 16/4/91

The question may be asked, "Well how would it

be that a corrupt or member of the tribunal who was

misconducting him or herself, be reported?".	The
answer to that would be that as their removal,

pursuant to section 24 and 28 of the Act, is by

address of both houses, then the complaint, we

would submit, the legislature intended, would be

made by way of petition to the house and in which

case the petition would be the subject of absolute

privilege and I do not more than simply give

Your Honours a reference to Gatley on Libel &

Slander at paragraph 424. There are two

authorities referred to there for this proposition:
"an absolute privilege attaches to any statements
contained in a petition addressed to the

Parliament, or to a Committee of either House".

Now, likewise, we concede that in this section

one would not read out, as it were, either common

law privileges like legal professional privilege,

nor would one exclude clearly, we would submit, the

parliamentarians from making statements about such
persons and the Parliamentary Privileges Act and

Parliamentary Papers Act would give proper

protection in that regard.

Now, may I take Your Honours then briefly to the decision of Justice Pincus, which is reported in 85 ALR 495. At 497 the question of

likely/intended is raised and the decision of this

Court in O'Sullivan v Lunnon is referred to.

At 498 point 6, His Honour expresses the view that

he accepted the prosecutors contention that the

word "calculated" meant "likely". Further, at 498

point 8, he says:

I note at the outset that there may be relatively minor offences, as well as major

ones, against the provision.

Now, that is important we say as well because one

could not, we would submit with respect, read into

and one can discern that, in any event, perhaps	the word disrepute only charges of a serious kind
from the range of penalty that is to be accorded in the circumstances, but in any event we submit that
His Honour is correct in that regard.

At 499 point 2, he decides that:

Further, I hold, as mentioned above, that it is not necessary, for an offence to be

committed, that the writing or speech charged

be calculated to cause by itself any great

damage to the reputation of the Commission or

a member.

Nationwide(2) 14 16/4/91

We say that this offence is an objective one.	One
discerns its requisite quality by reference to

traditional defamation concepts, namely, whether in
the circumstances the ordinary reasonable listener

or reader would so construe the publication.	At
500 point 5:

Mr Dwyer also contended that there could

be no conviction because it was a necessary

part of the prosecution's case to show that

the statement made was false - specifically,

as to the charge presently being considered,

to show that it was not true that the decision

was written by person -

and so on -

In my opinion, that it not so. It is, of

course, plain that on its literal

construction, the provision does not make

proof of the untruth of the statement in

question a necessary element of the offence.

A little further down, he says:

On the other hand, the law cannot be that a

truthful accusation of misconduct made in good

faith to secure a redress is a contempt;

truth must be able to be put in issue in such

a case, at least when the accusation is

specific. Here it was not.

And, again, we have answered that aspect which also

concerned Justice Gray. Over the page at 501

point 4 His Honour said:

It should be mentioned that Mr Dwyer

contended that the prosecution had to show

that the operations of the Commission were in
fact interfered with; by the making of the

statement. This doctrine he sought to derive

from remarks made in contempt cases, and in

particular by three of the judges in

Bell v Stewart.

And so he goes on. His Honour then says at about

point 5 line 25:

Although it has to be conceded that the

earlier part of the remarks quoted above

appear to have been meant to be applicable to

both branches of the then section 83, that is,

the bringing into disrepute, as well as the

contempt part, it is unlikely that the High

Court intended so extensive a judicial emendation of a section as is suggested. That

is, I do not accept that the judges' statement

Nationwide(2) 15 16/4/91

of the legislative purpose in enacting the section was intended to do more than throw

light upon the construction of the language

used. Bell v Stewart does not establish that

the then section 83 should be read as if it

said, "calculated to bring the court into

disrepute and having the effect of obstructing

or interfering with its functions". I think

the High Court was concerned to exclude from

the ambit of the section, on the analogy of
the law of contempt, such matters as mere
discourtesy and other matters which no

sensible person could treat as, in truth,

calculated to affect repute.

Now, of course, as I have said before, one must

bear in mind that that provision, arguably,

incorporated the whole of the law of contempt as

far as it was understood to concern courts.

Now, for those reasons, we do submit that the

words cannot be read down sensibly. There is no

concept emanating from either cases like Beckwith,

for example, or cases like Bean, which would permit

a court to read down what we submit is the clear

width of such a provision and, therefore, we submit

that, as properly construed, it does amount, for

relevant purposes, to a complete prohibition of any

adverse criticism of this commission.	May I move
to - - -

McHUGH J: What, even to say that a decision is wrong?

MR SACHAR:  No, not to say that a decision is erroneous, but

every statement has to be looked at in its context.

To allege error may not bring a tribunal or a

member of the tribunal into disrepute. To allege,

for example, that the member of the tribunal missed
an obvious case, so as to give rise to an

imputation of incompetence, would carry the

requisite quality of bringing the tribunal into

disrepute but some of the more important

criticisms, which may from time to time be levelled

at such a body, would clearly have that requisite

quality.

McHUGH J:	What about an honest criticism based on the public acts of the commission? Would that
constitute an offence?

MR SACHAR: Well, if brought into disrepute, yes, because we

submit - - -

McHUGH J:  But why should that bring the commission into

disrepute? That common law fair comment was no defamation. That is the way it could be raised

under the plea of not guilty.

Nationwide(2) 16 16/4/91

MR SACHAR:  Yes but, with respect, Your Honour, to get to

that conclusion one has to import into the section
that such a defence would be available to the

speaker. The mere fact that it may be a defensible

comment would not remove the requisite quality of

it bringing the tribunal into disrepute. Indeed,

certainly if something is said which is critical

and false, then it has always been thought to hurt
the more, but one could not remove a hurtful
quality from something which was both critical and
true and one can think of many examples which, we

would submit, this provision would catch.

McHUGH J: But, surely in the ordinary community the members

of this Court are not brought into disrepute
because there are strong attacks on the bases of a

judgment? Is that your suggestion - submission?

MR SACKAR:  No, that is because, though, that if one were

looking at the common law there are plenty of words

used in the judgments I have referred to which

suggest that such a criticism may not amount to a

scandalising criticism. But one really has to

redraft this section.

McHUGH J:  No, one just gives it meaning read against the

general background of the law.	I mean, all
statutes should be read as part	of the general
common law.

MR SACKAR:  Yes, the problem is, we submit with respect,

this is a bespoke tribunal. There is no

suggestion, as one could easily have had it in this

provision, that the general law of contempt were to

be incorporated into such a provision and one,

therefore, has to look at the words of the

provision and construe them, we submit, so as to

incorporate such provisions.

If one has clear terms, such as set out here,

we suggest with respect, it really does require a

redrafting and what words do you use, particularly

where the legislature already has looked at the

various types of conduct and characterized it as

either wilful or insulting or other such terms.

And where, in the very same part of the Act, the

legislature has turned its mind to conduct which

would not attract punishment if there was a

reasonable excuse for it. For example,

sections 303, 305, section 315 talks about "without

lawful authority or excuse", so does section 317

and there are a number of other uses of the term

"improperly". And, in a number of other

provisions, for example, section 320 and/or 326,

the legislature has directed itself to the question

of either onus of proof or defence. "Without

reasonable excuse" again used in section 329.

Nationwide(2) 17 16/4/91

So that what we suggest, with respect, is this, that if the words are clear and unambiguous,

as we suggest, there is no warrant to incorporate

the whole of the law - that is, the common law - in

respect of the scandalizing of courts.

McHUGH J:  But it is not a question of incorporating the

common law; it is a question of understanding the

word "disrepute" against the background of the

Industrial Relations Commission when this section

was introduced.

MR SACKAR: Well, in Bell v Stewart, (1920) 28 CLR, in the

judgment of the majority at page 425, point 4, the

Court there suggested that the word "disrepute"

should be given its normal dictionary sense. That

is:

disesteem, discredit, disgrace or dishonour.

Now, with respect, there has never been a

suggestion by a court that the word "disrepute"

itself can do any more work than simply be

understood synonymously with those other terms.

There has never been a suggestion that one looks at

"disrepute" and reads in the myriad of

qualifications that have cropped up from time to

time in various fact situations where courts have

allegedly been scandalized.

And do you incorporate only the defence of

fair comment or do you go further and incorporate

the defence of justification which, on some

judicial dicta, seems to be open? And that does

not matter, as I have said earlier, whether one is

simply characterizing the conduct as opposed to

adverting to what might be called matters of

defeasance.

McHUGH J:  I am not sure why that sort of inquiry is

necessary. Does not the notion of disrepute itself

answer a lot of these questions, and a powerful but

reasoned attack upon the decision of a particular

commissioner, or a court for that matter, is not

likely to bring the commissioner into disrepute.

It may make him or her a target for criticism, but

that is a quite different concept.

MR SACKAR:  Yes. May I - - -

McHUGH J: That is why I have difficulty with what

Justice Pincus says on page 499, in the passage you

read to us:

that it is not necessary, ..... that the

writing or speech charged be calculated to

Nationwide(2) 18 16/4/91

cause by itself any great damage to the

reputation of the Commission.

MR SACK.AR:	No.
McHUGH J:	I understand that as a sort of general notion,

but if it is not calculated to cause great damage

then it is perhaps not likely to bring the

commissioner into disrepute.

MR SACK.AR: Well, he, of course, in the other portion of his

judgment, does talk about the spectrum of

seriousness and, if I may take up one of the

matters raised by Your Honour a moment ago, a

powerful and reasoned attack on this tribunal could

significantly hurt and injure its reputation. For

example, if there were a powerful and reasoned

attack by someone of status who, in effect, said

that it had either outlived its usefulness, was no

longer of any significance so far as the Australian

economy was concerned, and should be abolished, one

could not imagine a more serious - and if it were

supported by reference to authority of the

commission, particularly authority in which, for
example, it is shown that the tribunal had changed

its mind or suggested that an inadequate basis was

used for the purposes of decision making, or that

it had been too influenced by government of the day

- one could not imagine, with respect, a more

damaging and damning attack on the tribunal.

McHUGH J: Yes, I understand that. The example that I gave

you was a fairly narrow one of an attack upon a

particular judgment.

MR SACK.AR:  Yes, I accept that.

McHUGH J: But I appreciate the distinction you are making.

MR SACK.AR:  Yes. So for those reasons, Your Honour, we

submit that the section should be so construed.

May I come to the question of validity.

BRENNAN J:	Do you say anything in your argument about the construction of statutory language to conform to
the limits of constitutional power?

MR SACK.AR:  No, I do not. I am grateful to Your Honour for

raising it.	May I come back to that, if I may?
Thank you.

McHUGH J:  What about what Mr Justice Isaacs and

Mr Justice Rich said in Bell, that:

Words calculated to bring a Court into

disrepute are words imputing to it, not

erroneous judgments or a mistaken view of the

Nationwide(2) 19 16/4/91

subject it deals with, but, as in the case of

individuals, conduct or character that, if

true, would forfeit the respect of the

community.

MR SACK.AR: Well, some do and some do not. If, for example,

it was said of the tribunal that a commissioner or

deputy president made an error in that he or she

had forgotten to refer to a recent authority,

depending upon how that was couched, one would not

necessarily draw the imputation of incompetence.

But one could turn the words ever so slightly to turn what might, in the first example, be an

innocuous allegation which would not have the

requisite effect on the tribunal into something

which would, for example, an allegation that some

person in the tribunal recklessly disregarded. In

other words, that the decision was of such

notoriety and importance and substance that nobody,

properly exercising their functions, could have

missed it.

So that it will all turn upon the language and

the context, and there are many factors which will

impact upon whether or not the terms used in fact

have the requisite tendency. But what

Their Honours said there was true, and we would

respectfully agree that in a particular context the

allegation of error or misconception clearly may

not give rise to the requisite impression on the

part of those hearing the words used.

May I come to the question of validity. What

we submit, in terms of attempting to characterize

the legislation, is that the section is more

appropriately and properly characterized as a law
with respect to the control of what is written,

spoken or published rather than a law with respect

to conciliation and arbitration.

We accept, of course, as is set out in our

commission into being; it is necessarily incidental notes, that it is within power to bring the	to give it some protection in order to preserve its
decisions and properly perform its functions. If we are correct on the statutory construction, it is not reasonably necessary, to use one of the formulas adverted to in the authorities, to give it
what we have described as absolute immunity.

Now, the notion which we advance here, given

we accept the latitude and ambit recognized in the

authorities commencing relevantly with D'Emden,

1 CLR 91 at page 110 and particularly

Justice O'Connor in Jumbunna, we none the less say

that here the legislature has devised something

which is not appropriate and plainly adapted, to

Nationwide(2) 20 16/4/91

use the term, to the end aimed at by the

legislature. This is because the end aimed at can

only be to give the commission such protection from

verbal attack as is necessary to perform its

functions.

Now, by way of analogy only, may I refer to a

recent decision of this Court in O'Toole,

64 ALJR 641.

McHUGH J:  I am having difficulty following just what your submission is. Have you departed from

paragraph l(ii) of your outline?

MR SACKAR:  No, not as far as I believe what I have said.

McHUGH J: Well, you assert there that any adverse criticism

is within 299.

MR SACKAR:  I am sorry, may I ask Your Honour which - - -?

McHUGH J: Paragraph l(ii) of your outline is saying that

299 amounts to a complete prohibition of any

adverse criticism?

MR SACKAR:  Yes. Your Honour is correct to pick me up on

that. What I intended to suggest was of the

requisite quality, namely, with the tendency to

bring in disrepute. It must conform to that but it

is difficult to conceive of an adverse criticism

which would not have the requisite tendency, but I

concede that, theoretically, there may well be

criticisms which are adverse but none the less

would not have the requisite tendency of such as

trivial nature, for.example, that the members of

the tribunal wear too many pink shirts or blue ties

or something. Now, one can imagine, if one uses

imagination, but that is the way I intended it,

Your Honour.

McHUGH J: So, is it your submission that even a fair

comment on a judgment of the Industrial Relations

Commission is an offence against this section?

MR SACKAR:  If it had the requisite tendency, yes, for the

reasons I put.

May I come to, if it is convenient, page 641

of the judgment of this Court in the judgment of

Justices Deane, Gaudron and McHugh in the

right-hand column and may I just read the two

paragraphs:

The legislative power conferred by

section 51 (xxxv) extends to the establishment of a system of conciliation and arbitration by

a specialist tribunal such as that which the

Nationwide(2) 21 16/4/91

Act in fact established. Implicit in the

notion of conciliation and arbitration is the

power to determine a dispute by a binding

order. Plainly enough, paragraph (xxxv)

envisaged and authorized the establishment of

a tribunal with conciliation and arbitration

functions and jurisdiction in relation to

actual or threatened inter-State industrial

disputes and with authority to make binding

orders, in the exercise of those functions and

that jurisdiction, for the settlement or

prevention of such disputes. Because of the

nature and subject matter of inter-State

industrial disputes, it is inevitable that

such binding orders must, on occasion, take

the form of prescribing general rules of

conduct.

In our view, the legislative power to establish such a specialist tribunal for the

purposes specified in paragraph (xxxv)

encompasses, of itself and without need to

resort to the incidental power contained in

section 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. In the context of the limited nature of the

immunity from any challenge to the validity of any orders made by such a tribunal

grants of legislative power to the absolute

upon constitutional grounds could not properly

be seen as reasonably necessary or incidental

in that sense.·

Now, by way of analogy, we draw, respectfully,

comfort, we submit, from that notion. In addition,

we rely upon what His Honour Justice Deane said in

the Tasmanian Dam's case, 158 CLR 260-261. May I

read the extract, it is short, without asking

Your Honours to go to the volume:  Implicit in the requirement that a law be

capable of being reasonably considered to be

appropriate and adapted to achieving what is

said to provide it with the character of a law

with respect to external affairs is a need for

there to be a reasonable proportionality

between the designated purpose or object and

the means which the law embodies for achieving or procuring it. Thus, to take an extravagant

example, a law requiring that all sheep in

Australia be slaughtered would not be sustainable as a law with respect to external

affairs merely because Australia was a party

Nationwide(2) 22 16/4/91

to some international convention which
required the taking of steps to safeguard
against the spread of some obscure sheep
disease which had been detected in sheep in a

foreign country and which had not reached

these shores. The absence of any reasonable

proportionality between the law and the

purpose of discharging the obligation under

the convention would preclude characterization

as a law with respect to external affairs

notwithstanding that Tweedledee might,
"contrariwise", perceive logic in the
proposition that the most effective way of

preventing the spread of any disease among

sheep would be the elimination of all sheep.

The law must be seen, with "reasonable

clearness", upon consideration of its
operation, to be "really, and not fancifully,
colourably, or ostensibly, referable" to and

explicable by the purpose or object which is

said to provide its character ..... In that

regard, the "peculiar" or "drastic" nature of

what the law provides or the fact that it

pursues "an extreme course" is relevant to

characterization.

So here we say, if we are correct on

construction, that this is an example of an extreme course, that there is no reasonable proportionality between the designated purpose or object and the

means which the law embodies for achieving or

procuring it.

McHUGH J: But there does not have to be. Take a case like

Burton v Hohnen where it was held that the commerce

power authorized the seizure of vehicles that had

passed into the hands of bona fide purchasers of

vehicles.

MR SACKAR:  Yes.

McHUGH J: Well, a lot of people might have said that was

not proportionate to the mischief.

MR SACKAR: That is true. Three answers: first, defence

power; second, the notion of conforming to a

standard pattern or practice of legislation which,

we submit, despite other examples which this Court

will be told of is absent here; and third, does

not derogate, we submit with respect, from the
notion because the proportionality will, we submit,

be a relevant factor to take into account, and if

an extreme course, extreme in the drastic sense or

peculiar sense that His Honour there was talking

about and which this Court observed in the Davis

case which I want to come to in a moment, then,

Nationwide(2) 23 16/4/91

with respect, the law will be regarded as invalid,

in our respectful submission.

Now, may I come to

McHUGH J:  Just let me press you on this. A provision like

299 can be seen as designed to protect the

commission. Now, the justice and wisdom of the

section is a matter entirely for the legislature.

You have to say in some way that it cannot be seen

as protecting, or you have to read in some other

limitation.

MR SACKAR: What I say, with respect, is this: that

certainly the wisdom and expediency is not capable

of challenge except in so far as, we submit, it is

clearly disproportionate and clearly beyond what is

reasonably necessary. Now, I pick up the notions

which Your Honour used in that decision of O'Toole

in juxtaposing that notion as against the absolute

immunity from review in the privative clause which

was being looked at in that case. Therefore, we

submit that it is entirely consistent not to

inquire into the wisdom and expediency, but none
the less, if one is confronted with such a
provision, then the proportionality aspect is

indeed a relevant consideration to take into

account. And if it is so drastic, and particularly

as in the Davis case, it came hard up against

another interest, another right, the freedom of

expression, then in that circumstance is a very

good example, we submit, where the Court - - -

McHUGH J: That is a weak right. When I say "weak", I use

it in contrast to a "strong" right. Freedom of

speech in this country is a right that you have

because legislation has not interfered with it. It

is not a right that you are given by statute, or a

right to have something done.

MR SACKAR: Well, I am hoping to persuade Your Honour to the

contrary of that in about ten minutes.

accept what Your Honour says to me in argument. But I

Not so, we say, in the Davis case where when one

juxtaposed the exercise of the power against, we

submit, more powerful interests, one does not see

the difficulty and one is not interfering with

notions of wisdom and expediency of the kind that

Justice O'Connor and Justice Barton talked about in

Jumbunna.

Now, may I come to one quote only in Davis, at

166 CLR at page 100. We suggest, with respect,

that one finds here, in the judgment of the

Chief Justice and Justices Deane and Gaudron, a reflection - application, perhaps - of the

Nationwide(2) 24 16/4/91

proportionality concept.	I commence reading at
about point 8 on page 99:

The illustrations given in the two

preceding paragraphs indicate that the effect

of the provisions is to give the Authority an
extraordinary power to regulate the use of

expressions in everyday use in this country,

though the circumstances of that use in

countless situations could not conceivably
prejudice the commemoration of the Bicentenary

or the attainment by the Authority of its

objects. In arming the Authority with this

extraordinary power the Act provides for a

regime of protection which is grossly

disproportionate to the need to protect the

commemoration and the Authority. It is

therefore no answer to say that the

Authority's power to refuse written consent is exercisable only for the purpose of ensuring

such protection, assuming that to be a

permissible construction of s. 22(1).

Here the framework of regulation created

bys. 22(1)(a) withs. 22(6)(d)(i) and (ii)

reaches far beyond the legitimate objects

sought to be achieved and impinges on freedom

of expression by enabling the Authority to

regulate the use of common expressions and by

making unauthorized use a criminal offence.
Although the statutory regime may be related

to a constitutionally legitimate end, the
provisions in question reach too far. This
extraordinary intrusion into freedom of

expression is not reasonably and appropriately

adapted to achieve the ends that lie within

the limits of constitutional power.

I stop there to say that if, as we submit the

position is, that this provision would not

tolerate, as it were, an otherwise defensible

comment then this provision will have reached too

far. For those reasons, Your Honours, we submit

that the provision is invalid.	May I come to the
third and more difficult - - -

McHUGH J: Well, before you do, have you got anything to

say, or any submission to make if section 299 is

construed so as not to cover cases of fair comment

on the public acts of the commission?

MR SACKAR: All I have got to say is that it makes it more

difficult.

McHUGH J:  From your point of view.

Nationwide(2) 25 16/4/91

MR SACKAR: Other than acknowledging that increased

difficulty, no. May I come to this question of

implied guarantee which is both interesting and a

difficult question. In relation to freedom of

speech it is true that there is very little by way

of authority perhaps in this Court and, indeed,

perhaps in this country. I will be referring the

Court briefly to authority in Canada and in the

United States and two New Zealand cases in order to

suggest that it is indeed a constitutional concept

and guarantee and has been so regarded elsewhere.

The notion we advance in our submission is,

first, in (ii), we have tried to formulate what we

say the guarantee is, if I may say with some

difficulty. It may be because no such guarantee

exists but we submit it does. And we put it this

way: there is to be implied into the Constitution

a guarantee in favour of the people of Australia to

the effect that the Commonwealth Parliament has no

power to make a law which impairs the capacity of

people of Australia to perform the functions and

responsibilities entrusted to them by the

Constitution.

We mean, essentially, two things in substance.

The first is that by reason of covering clause 5

alone, and to this extent I rely upon what

His Honour Justice Deane said, dare I say it, in

Breavington, 169 CLR 120, and I do not ask

Your Honours to go to it this week, but there

His Honour talked about the compact and,

relevantly, we say, one cannot exclude the people,

and one cannot exclude them simply because

ultimately the power, we submit, without wishing to

do too much violence·to Dicey's theories, rests in

them.

Importantly, under the Constitution, in

sections 7, 24 and 128, one sees the very vital part played by the people of Australia in the process, in the constitutional and democratic	process. Section 7, they are the electors of	people to the Senate; section 24, they are
responsible for choosing members of the House of
Representatives and ultimately under section 128,
they are responsible for deciding whether the
Constitution should be altered. To exclude their
rights is to deny, with respect, we say, a most
important constitutional principle. We say that in
a representative democracy such as this country you
can regulate political criticism, but you cannot abrogate it. If that could be done you would circumvent and stultify completely the democratic process because if public opinion could not be
freely and openly formed by debate and exchange of
thoughts and ideas then you could not say with any

Nationwide(2) 26 16/4/91

degree of comfort, perhaps, that the legislature,

or indeed that the democracy was truly

representative. And that is why, in answer to one,

at least, anticipated retort, "Well, leave it to

the legislature - - -"

McHUGH J:  What about the law of seditious libel?

MR SACK.AR: Well, seditious libel is different for this

reason, that, as Their Honours, the Chief Justice

Sir Owen Dixon and others in cases like Burns v

Ransley, which I want to take this Court to briefly

in a moment, one must draw a distinction between an

attack on the institution of government, which in

itself would properly be construed as an attack on

a democratic process, and the Constitution, and an

attack on the government of the day, and that is

the very distinction that His Honour Sir Owen Dixon

drew in Burns v Ransley, when he construed the word

"government" in the Act, and, of course, as

Your Honour will know, from R v Sharkey, in the

footnote on page 1, that Act set out a number of

defences.

So, one can put, with respect, as indeed this

Court did in Davis, in certain of the judgments,

seditious libel or sedition, to one side, with

respect, because there a different public interest

is in the balance. Now, what we say is that this

question of constitutional principle has been

recognized certainly in two passages, we submit

with respect, in Burns v Ransley. May I take the

Court very briefly to those? Burns v Ransley,

79 CLR 101 and, in particular, at pages 109 to

110 - first, although it is conceded that all

members of that Court found the particular

provision within power, Your Honours will recall

that there was a division between the four members

of the Court as to whether or not in the
circumstances the offence was proved; the Chief

Justice's vote prevailing, but on page 110,

point 7, His Honour the Chief Justice says this:

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.

Again, at page 111 in the decision of Justice Rich,

at about point 3:

In my opinion these sections do not purport to

prevent or punish mere criticism of a

political nature but are intended to defend

the existing regime against its overthrow or

suppression.

Nationwide(2) 27 16/4/91

And in the judgment of His Honour Sir Owen Dixon,

at page 115 at about point 1, may I read it:

In section 24A(l)(b), (c) and (d) I take the word "Government" to signify the

established system of political rule, the

governing power of the country consisting of

the executive and the legislature considered

as an organized entity and independently of

the persons of whom it consists from time to

time. Any interpretation which would make the

word cover the persons who happen to fill

political or public offices for the time
being, whether considered collectively or
individually, would give the provision an

application inconsistent with parliamentary

and democratic institutions and with the

principles of the common law, as understood in

modern times, governing the freedom of

criticism and of expression.

Now, it is true one may say, that what His Honour

was there doing was indeed construing a statute and

trying to resolve an ambiguity in the word

"Government". However, we submit with respect,

that it is clear, not having to read too much

between the lines, that His Honour would have held

invalid a law proscribing criticism, for example,

of the holders of public office or, indeed, we

would go further and suggest perhaps, "of the

government of the day". So that we find some
support in those two provisions for the type of

constitutional guarantee we are seeking.

McHUGH J:  They are not talking about guarantees, are they?

They are talking about lack of Commonwealth power.

Perhaps the trade and interstate commerce power

could be used to prohibit political criticism.

MR SACK.AR: Well, we say that what this section purports to

do is more than that but what we have said at the

outset is that we accept that there is power to

regulate but not proscribe and we have set out why
we say the electors in this country are entitled to
express their views, perhaps in an ordered and

regulated fashion, but none the less express their

views freely, openly and forthrightly about the

government of the day, and I add to that, "and any

emanation of it", because I have got to face up to,

in a moment, how it is I say that this provision

falls foul of such a principle if it exists as a

constitutional principle in the case of the

Industrial Relations Commission. And may I come to

that now because I have ultimately got to face it

and persuade Your Honours that the Industrial

Relations Commission should not be seen, in any

Nationwide(2) 28 16/4/91

situation or position, dissimilar to the government

of the day.

May I come to that before I go to the overseas

authority. The base proposition is, as I have

stated, one can regulate the criticism but not

proscribe it. This tribunal is the creature of

statute. Its creator is, from time to time, the

government of the day. The government of the day

tinkers with it from time to time in a small way or

in a wholesale way, as is exampled by the current

Act of 1988. It constructs it, it mans it, it

gives it its powers and functions, and it sets its

objects.

One of its objects, or two, rather, is, first, the mandate and direction that in each of the cases which come before it, not only should the interests of the particular parties be a relevance, but the

Australian economy should be a relevance. One only

has to start talking in general terms such as that to see that litigation before the tribunal is very

often class action where, on the one side of the
bar table is a representation from capital and on
the other a representation from labour. That is an

oversimplification. Government intervene from time

to time, most relevantly during national wage

cases.

So that one can see, we suggest, with respect, that government is very much involved in both the

workings and in the issues which come before the

Industrial Relations Commission. A further object

of the commission is to induce democratic control

of unions. So that, again, one sees the commission

invited by its objects to move from time to time,

when required, into what might be regarded as a
purely political exercise. Regulate, of course, in

the direct sense, by reference to ballots, union

rules cases where disputes may arise as to

elections, and matters of that sort, but in a very

real political sense intervene in the conduct of

the parties.

The fixing of wages, which affects every

person in this country, with respect, directly or

indirectly, is its prime function allied, of

course, with the resolution of disputes. Apart

from its functions of an executive nature, it is a
legislator, because its awards are given

legislative status. The three authorities, without

asking Your Honours to go them, for that

proposition are Colvin, 68 CLR 151 at pages 160 and

161; Ansett, 142 CLR 237 at page 277; and Collins,

92 CLR 529 at pages 548 to 549.

Nationwide(2) 29 16/4/91

If it were needed, and it is arguably otiose, section 152 of the Act says this:

Where a State law, or an order, award,

decision or determination of a State

industrial authority, is inconsistent with, or

deals with a matter dealt with in, an award,
the latter prevails and the former, to the

extent of the inconsistency -

and so on. So one can see a clear intent to carry

forward, as I say, if it were thought legally

necessary, the thrust of section 109 of the

Constitution.

Now, what we say is this: one cannot say

clearly that every criticism of this commission is

a criticism of the government, but one should be

able to criticize the government in all areas of

policy. We say the government cannot immunize

itself in any area of its policy from criticism, it

can regulate it, but otherwise it would be a
subversion of democracy, and clearly many
criticisms of the decisions, the powers, the
functions, the procedures or the personnel, must be

seen as not only a criticism of the particular functionaries or bodies, but as a criticism of

their creator. That is the way we put it. Now may

I briefly then - - -

DAWSON J:  I am not sure how you put the concept of a

guarantee. Is it as a restriction on a legislative

power that is already there, apart from the

guarantee?

MR SACKAR:  Yes. I put it directly to this effect, that it

would be a - - -

DAWSON J: Otherwise you could just simply say, well that

power does not extend so far.	Is it just the other
side of the coin?

MR SACKAR:  No, it is not just the other side of a coin. I

wish to put it that there is an implied guarantee
which would restrict an otherwise valid law from

operating so as to abrogate criticism of the

government of the day, as I put it, to include the

IRC.

DAWSON J:  The same matters which could give rise to that

implication would restrict the legislative power.

MR SACKAR:	I am so sorry, I did not hear, Your Honour.
DAWSON J:	The same matters as would give rise to that

implication would serve to restrict the

interpretation of the various legislative powers.

Nationwide(2)	30	16/4/91
MR SACK.AR: It may well do.

DAWSON J:  You do not need to look for a guarantee in those circumstances.

MR SACK.AR:  I agree. May I briefly then, in conclusion on

this aspect, simply give Your Honours some

references to some overseas authorities. First, so

far as Canada is concerned, may I simply give

Your Honours the names of the cases and the page

references.

BRENNAN J:  Do these arise under Charter of Rights or Bill

of Rights?

MR SACK.AR: 

No, what I am about to give Your Honour arise

pre-charter. Recognition of a right - a common
law/constitutional right, as we would have it.

BRENNAN J: 

Under the Canadian statute that existed before the charter?

MR SACK.AR: 

Under the Canadian Constitution - pre-charter.

BRENNAN J: But not dependant upon the Statute of Canada?

MR SACK.AR: No. Oil v Chemical, (1963) SCR 584 at page 600;

Alberta Statutes, (1938) SCR 100, particularly at
page 134-135; Saumur, (1953) 2 SCR 299 at the
following pages 331, 353-4, 373-4, 363; Switzman,
(1957) SCR 327-328 and Retail Wholesale &

Department Store Union, 33 DLR 174, and may I ask

if Your Honours would briefly go to two pages of

that decision of the Supreme Court, particularly at

page 183.

At page 183 under the heading "Freedom of

Expression", His Honour Justice McIntyre, with whom

all other members of the court, including

Chief Justice Dickson agreed, said this:

As had been noted above, the only basis

on which the picketing in question was

defended by the appellants was under the

provisions of s. 2(b) of the Charter which

guarantees the freedom of expression as a

fundamental freedom. Freedom of expression is

not, however, a creature of the Charter. It

is one of the fundamental concepts that has

formed the basis for the historical

development of the political, social and

educational institutions of western society.

Representative democracy, as we know it today,

which is in great part the product of free

expression and discussion of varying ideas,

depends upon its maintenance and protection.

Nationwide(2) 31 16/4/91

The importance of freedom of expression

has been recognized since early times -

and His Honour quotes a number of those works.

Over the page, at 184:

The principle of freedom of speech and

expression has been firmly accepted as a

necessary feature of modern democracy.	The
courts have recognized this fact.	For an
American example -

and then His Honour quotes from Abrams v

United States. And, stopping there, I propose, in

a moment, to give Your Honours some references to

New York Times v Sullivan in order to suggest that

although that court was talking about First

Amendment principles, we submit with respect from

the pages I propose to give this Court, it is

recognized that such a principle is referable to

the Constitution as well by reason of the nature of

the democratic government set up. In the middle of

the page, at 184:

Prior to the adoption of the Charter,

freedom of speech and expression had been

recognized as an essential feature of Canadian

parliamentary democracy. Indeed, this court

may be said to have given it constitutional

status. In Boucher v The King -

and then there is a long quote which I will not

read to the Court. Then, over the page, there is

the reference to Switzman and if I may just read

that excerpt:

"But public opinion, in order to meet

such a responsibility, demands the condition

of a virtually unobstructed access to and

diffusion of ideas. Parliamentary Government

postulates a capacity in men, acting freely

and under self-restraints, to govern

themselves; and that advance is best served in

the degree achieved of individual liberation

from subjective as well as objective shackles.

Under that Government, the freedom of

discussion in Canada, as a subject-matter of

legislation, has a unity of interest and

significance extending equally to every part

of the Dominion. With such dimensions it is

ipso facto excluded from head 16 as a local

matter.

"This constitutional fact is the

political expression of the primary condition

of social life, thought and its communication

by language. Liberty in this is little less

Nationwide(2) 32 16/4/91

vital to man's mind and spirit	than breathing
is to his physical existence.	As such an
inherence in the individual it	is embodied in
his status of citizenship."

And the next quote, if I may be permitted:

"The right of free expression of opinion

and of criticism, upon matters of public

policy and public administration, and the right to discuss and debate such matters,

whether they be social, economic or political,

are essential to the working of a

parliamentary democracy such as ours."

And, again, there is a further quotation from the

Alberta Legislation case and if I may be permitted

again to read it:

"Although it is not necessary, of course, to

determine this question for the purposes of

the present appeal, the Canadian Constitution

being declared to be similar in principle to

that of the United Kingdom, I am also of

opinion that as our constitutional Act now

stands, Parliament itself could not abrogate

this right of discussion and debate. The

power of Parliament to limit it is, in my

view, restricted to such powers as may be

exercisable under its exclusive legislative

jurisdiction with respect to criminal law and

to make laws for the peace, order and good

Government of the nation.

Now, at the bottom of the page His Honour then

goes to the charter and looks at the law

accordingly. One might say, or be forgiven for

saying, that even if those earlier decisions

referred to did not have the requisite

constitutional status, this decision of Retail

Wholesale & Department Store may well be a

recognition of it as such.

Now, in New York Times v Sullivan, fully

accepting the differences, particularly the First

Amendment, may I simply give, without asking Your Honours to go to it, the following page

references in 376 US: 269 to 276 inclusive - that

is in the majority judgment of Justice Brennan and

six other members of that court; and at pages 296

to 297 in the judgment of Justices Black and

Douglas; and at pages 299 to 301 in the judgment of

Justice Goldberg; and in particular, if I may

suggest to the Court, discussion in the judgments about the Sedition Act which was there indirectly under discussion by all members of that court.

Nationwide(2) 33 16/4/91

In respect of peace, order and good government, may I say only this: that I recognize

the two problems of Union Steamship and the plenary
nature of the power, and I recognize the words

"subject to the Constitution" in section 51,

preceding as they do the relevant words. We

suggest, therefore, that although it should be

considered, if the Court is to accept our

submissions the implied guarantee submission is the one we would ask the Court to accept. If the Court

pleases.

DEANE J: Mr Sackar, can I ask you this: where in this

implied guarantee do you fit the express guarantee
of freedom of intercourse, of interstate

intercourse?

MR SACKAR:  May I put it this way, Your Honour, that it may

well be a separate and discrete guarantee, although

I concede that there may be an overlap.

DEANE J:  And what application do you say it has to this

section, the express guarantee?

MR SACKAR: Well, if there is an overlap then, clearly, if

intercourse includes freedom of speech, then it

would have, in my respectful submission, the

requisite impact.

DEANE J:  Thank you.

MR SACKAR: If Your Honour pleases.

MASON CJ:	Mr Weinberg.
MR WEINBERG:	If the Court pleases, could we hand to the

Court copies of our outline of submissions.

MASON CJ: Thank you. Yes.

MR WEINBERG: If the Court pleases. If we could move,

initially, to paragraph 4 of our submissions which

is simply an attempt to distil and present to the

Court a picture of what the Industrial Relations

Commission is and does and, in our respectful

submission, it is appropriate to regard the

commission as performing a number of functions

which are analogous to those traditionally

performed by the courts while, of course,

recognizing that the commission is not a court and

is not entrusted with the exercise of the judicial

power of the Commonwealth.

We note, in our submission, that the

commission resolves disputes between parties and

does so by making binding orders. We note the

non-consensual nature of the jurisdiction of the

Nationwide(2) 34 16/4/91

commission; the obligation of the commission to

act judicially; the fact that the commission

regularly determines questions of fact and law;

the tenure and status of members of the commission

and, in particular, we have taken the liberty to

quote precisely from the words used by Your Honour

Mr Justice Deane in Your Honours, as it was, a

dissenting judgment but not, we submit, in relation

to this part of the judgment in Re Queensland

Electricity Commission; ex parte Electrical Trades

Union of Australia which we have reported only at

(1987) 72 ALR 1 at 12 and the quotation, the

particular part that we have extracted in
paragraph (f) of proposition 4 is, that the

jurisdiction of the commission:

is properly to be seen as an important part of
the overall jurisdiction of the courts and
other public tribunals to which recourse may

be had, as a matter of right, for the

resolution of disputes.

We then move in paragraph 5, of our submissions, to
consider some reasons justifying the granting to
the Industrial Relations Commission and its members

of what we describe as a level of protection which

is not dissimilar to the protection traditionally

accorded to the superior courts of record by that

form of common law contempt of court known as

scandalizing the court. We outline a number of

such factors. Firstly, we point to the public

interest in ensuring that so far as possible public

confidence in the integrity and independence of the

commission is not undermined. The Court will find,

readily, observations in a number of the decided

cases which identify that as a relevant factor.

In particular, we draw attention to the

observations in Howard v Gallagher, (1987) 18 FCR
233 at page 240 in the judgment of
Mr Justice Northrop and also in Howard v Gallagher,

85 ALR 495 at page 499 in the judgment of

His Honour Mr Justice Pincus, identifying that

particular factor as being of importance.

We turn in paragraph (b) to the fact that the

commission depends upon a high level of acceptance

of its decisions by those who are directly and

indirectly involved in disputes before it for its

effective operation. It cannot be that it operates
entirely upon sanctions, although there are
sanctions for non-compliance with orders and
determinations of the commission contained within

the Act.

We point in paragraph (c) to the fact that the

law of defamation itself is a singularly

Nationwide(2) 35 16/4/91

inappropriate vehicle for the protection of the

commission and its members, particularly when

attacks are made upon the commission as a whole,

and in paragraph (d) to the fact that the

commission and its members are unable to respond

publicly to scurrilous abuse or attacks alleging
bias or corruption without themselves becoming

embroiled in controversy which would detract from

the commission's ability to perform its own

functions as an independent arbiter.

We say of the commission that while it is a

tribunal exercising no more than arbitral powers, the way in which it functions, the powers that it

has as clearly set out in the legislation make it

clear that this is a tribunal which is more akin to

a court in the way it performs many of its

functions than are most other tribunals, in our

respectful submission.

DAWSON J: Are you using these submissions as justification

for going beyond the law of contempt - - -

MR WEINBERG:  No, we are not, Your Honour. We are

using -

DAWSON J:  - - - or really as justification for saying that

the section goes no further than the law of

contempt and that is all right.

MR WEINBERG:  Yes, Your Honour.

DAWSON J: Well, as I understand it there is no argument

about that.

MR WEINBERG: Well, we understood that there is no argument

about that proposition, Your Honour. The question

is where the line should be drawn and, in our

respectful submission, these propositions

demonstrate that the line -

DAWSON J:	Where what line should be drawn?
MR WEINBERG:	The line should be drawn between what may be

prohibited as a form of scandalizing or contempt of

the industrial relations - - -

DAWSON J:  I may be wrong, but I understood the argument

that was put by the other side was that if it goes

no further than the law of contempt goes, there is

no complaint.

MR WEINBERG:  Your Honour, we did not understand that to be

a complete concession by the other side. We

understood the other side to be saying that there

was a difficulty in their argument if the section

were to be construed as going no further than the

Nationwide(2) 36 16/4/91

common law of contempt. Some of the further

arguments advanced by the applicant about

guarantees of freedom of speech and so forth might

also need to be considered in the light of these
propositions.

I had almost completed what I was going to

say, simply a matter of identifying the common
factors which would - - -

DAWSON J: Just to get it clear, you as prosecutor do not

contend that the section goes any further than the

law of "contempt"?

MR WEINBERG:  No, Your Honour, we do not, and we will be

addressing that submission almost immediately after

we have completed this point.

McHUGH J:  But does that take you far enough? What about

the impact of section 92? In Cole v Whitfield the

Court left open the meaning of "intercourse" in

that section. I must say it has always seemed to

me that if there is any guarantee of freedom of

speech in the Australian Constitution it is

basically to be found in those words in section 92.

Now, this is a newspaper which circulates

interstate. Why does not section 92 strike at this

section, even if it is confined to contempt of

court in a classical sense, because many people

have been very critical about the extremes of

contempt of court?

MR WEINBERG:  Your Honour, we would be saying that the

section does no more than reasonably regulate in a

non-discriminatory way. If there was one section

that I was not prepared to come here and argue,

Your Honour, it was section 92.

DEANE J:  I do not think non-discriminatory will come into

intercourse, will it7 That is the one thing that

Cole v Whitfield made quite clear, I would have

thought.

MR WEINBERG:	Your Honour, I am optimistic that the learned Solicitor-General will be in a better position to
respond to that precise point than I would, but I
would simply say that the answer to Your Honour's question would be that this is no more than an
entirely piece of reasonable regulation. That
properly construed, the section does no more than reasonably regulate and that the section does not operate in any discriminatory fashion so as to
invoke - - -

Nationwide(2) 37 16/4/91

MASON CJ:  I think you better read Cole v Whitfield,

Mr Weinberg.

MR WEINBERG:  Your Honour, I have many many tasks to

perform. My duties do not always permit me to keep

up to date with the latest decisions of the High

Court, even in section 92 cases and I can only say

that I would defer to the learned Solicitor in

dealing with that matter. If the Court pleases.

Could I say this that it is, in our

submission, common for tribunals, whether State or

federal, to be accorded statutory protection from

published attack which, if addressed to a court,

would amount to a contempt of court and our

submission is that it is entirely understandable

and reasonable that the Commonwealth Parliament

would accord protection to various of the tribunals

that it establishes to perform various roles,

including, in particular, the Industrial Relations

Commission.

Paragraph 6 of our submissions - - -

BRENNAN J:	Mr Weinberg, just before you go past there, I am a little puzzled to understand how one translates
the notions of scandalizing the court to a tribunal
which is not constrained as a court is constrained with respect to the reception of evidence and the
formation of evaluative judgments upon evidence
publicly tendered. Is the commission, for example,
entitled to conduct research on its own account, or
to receive submissions otherwise than in open hearings?
MR WEINBERG:	The matter has to proceed, Your Honour, by way

of analogy. The common law certainly went no

further, in our submission, than to ''protect" a

court from being scandalized. In our respectful
submission, the fact that courts proceed by way of

application of the rules of evidence as a normal or

general matter is not an invariable consequence of

the exercise of judicial functions. There are

courts which, from time to time, are permitted to

and, if I am not mistaken, the Family Court is not

strictly required to comply with the rules of

evidence in all circumstances.

BRENNAN J:	I was not thinking of the rules of evidence as such, but if ohe were to say of a judge, he
receives information or advice about this case
pending before him from a source which was not a
party in the proceedings or not tendered in open
court or something of that sort, one might say that
that is scandalizing the court to say it of him.
MR WEINBERG:	Yes.

Nationwide(2) 38 16/4/91

BRENNAN J: There are some tribunals - I do not know whether

the commission is one of them - which, of

necessity, derive some information from sources

which come otherwise than from the parties. What

does one say in the case of those tribunals, if one

says too much weight has been given to the source

of information or advice that comes extrinsically?

MR WEINBERG:	The analysis of whether the particular allegation constitutes words calculated to bring
the tribunal into disrepute must, of course,
depend, in our submission, upon what the relevant
tribunal does and how it is intended to operate.
If the Industrial Relations Commission, as a matter of law, pursuant to its statute, is permitted to advise itself of matters by having direct contact
with participants other than through the normal
mechanisms that would be followed by a court, then,
in our respectful submission, to criticize the members of the commission for doing what the
statute expressly empowers them to do, could not be
said to be bringing them into disrepute. There is
a different content, in our submission, to the
obligations placed upon members of the commission
as to what they should do and how they should conduct themselves properly.

So we would say that one reasons by analogy;

one takes from the common law of scandalizing so

much of that particular doctrine as can be bears in mind that the commission is not a court,
appropriately transferred to a body like the

operates under a different statute and conducts

itself in ways that would not necessarily be

regarded as suitable if judges were to do exactly

the same thing. It is a matter of considering the

particular circumstances in each case, in our

respectful submission.

BRENNAN J:  The powers and the procedures of each tribunal.

MR WEINBERG:  Yes, Your Honour.

BRENNAN J:  I see, yes. Thank you.

MR WEINBERG:  We turned in paragraph 6 simply to give the

Court our submissions regarding the express

incidental power and we said that upon a proper

construction of the section and upon that power,

this provision can be described as really

incidental to the attainment of an independent
system of conciliation and arbitration. It

certainly cannot be said to be manifestly

unconnected to that end, if one applies the tests

laid down in Jumbunna.

Nationwide(2) 39 16/4/91

We say that the provision of

section 299(l)(d)(ii) is conducive to the success
of the conciliation and arbitration process and
removes an obstacle to its effective operation if
one were to use the language of the High Court in

Stemp v Australian Glass Manufacturers Company

Limited, and we note that Parliament is not confined to those means which are indispensably

necessary to give effect to the constitutional head
of power.

In relation to paragraph 7 we move directly to

the construction of the section, and here we
challenge, quite directly, the submissions made on
behalf of the applicant. His contentions, as we

understand them, are that the section, upon its

proper construction, is absolute and antithetical

to the rights of free speech. We say that a

careful analysis of the section will demonstrate
that far from being absolute and far from being

antithetical to rights of free speech, the section

conforms comfortably with those rights as they are

understood and does not go beyond the common law of

contempt of court as it has developed by the courts

in the form of scandalising the court, in our

submission.

BRENNAN J:  And as modified, in the way in which you have

indicated just now.

MR WEINBERG:	And as modified, Your Honour.
BRENNAN J:	What is the statutory foundation for that view?

MR WEINBERG: For the proposition that the section -

BRENNAN J:	A modified doctrine of contempt of court can apply to a non-judicial tribunal.
MR WEINBERG:	Your Honour, the statute itself has been modified as changes in the common law of contempt
Originally the statute contained the word of court have emerged through the courts. "wilfully" and "wilfully" covered the words "calculated to cause the commission or member of
the commission to fall into disrepute". As the
common law developed and it became plain that the
mens rea for this form of contempt of court did not
extend to doing more than knowingly or
intentionally publishing material without having the specific ulterior intent, so it becomes clear, in our submission, that the Parliament responded by
keeping the statute in conformity with the common
law and removing the word "wilfully" from the
section.

Nationwide(2) 40 16/4/91

One finds that the section comes into

existence in 1904 and one finds that it is enacted some four years after the leading pronouncement by

His Lordship, Lord Russell of Killowen, the

Chief Justice in Gray's case, in language that is almost precisely identical to the formulation of

the common law offence of scandalizing the court as

laid down in that case. One can turn to the word

"calculated", which is a word that appears both in

the common law formulation, the leading formulation, and in the statute itself.

There are many indications, in our submission,

of a legislative intent to make these sections

conform so far as possible, and to go no further

than does the common law of contempt of court, even

when the common law itself is adapted by the

courts, as it has been from time to time. So, what

we say, Your Honour, and we say this in relation to

paragraph 7(b), and this is only to pick up a point

that Your Honour Mr Justice McHugh raised earlier,
that in our submission this section should be

construed as going no further than the common law offence of contempt. As a general rule a statute

should be construed in conformity with the common

law rather than against it, except in so far as the

statute is plainly intended to alter the course of

the common law.

Of course, there is no common law offence of scandalizing a tribunal and we do not submit that

there is, or ever was. The section proceeds, we

say, by analogy. It is dealing with a tribunal

which has about it a number of the characteristics
of a court, and the attributes of a court, and

which in many respects is not dissimilar to a

court, and we say that what the Parliament has done

is to seek to extend the common law protection of

contempt of court, scandalizing the court, to an

analogous body, using such language as is adapted

to, and designed to achieve that result, but not

with any legislative intent to go beyond the

proscription contained within the common law

offence of contempt of court.

We move, on page 4 of our submissions, to the proposition that the statutes of the Commonwealth,

in so far as they create offences, rarely

themselves contain any statement of the general

principles upon which criminal responsibility

depends. They are often silent as to whether mens

rea is required, and if so, what form of mens rea

will suffice. They are almost invariably silent as

to which, if any, of the general defences

recognized at common law may be invoked in answer

to a charge brought under a particular provision.

They are not to be read literally and in their

Nationwide(2) 41 16/4/91

widest sense, as my friend would have it in his
contentions, but rather as penal provisions to be
construed narrowly and in favour of the liberty of
the subject, and we would add also, of course, to
be construed pursuant to section 15A of the Acts

Interpretation Act, if it becomes necessary to

invoke that particular provision.

We submit that that principle that is set out in paragraph (c) is almost trite. There are many

examples of its operation, perhaps the best example

in recent years is the case of He Kaw Teh v Reg,

where this Court took a statute which made it an

offence to import prohibited import into this
country and, in effect, read into that statute

additional requirements of knowledge or mens rea,

which are simply not there, and the Court did so

because it was a penal statute, a statute which

involved the liberty of a subject and could lead to

a lengthy term of imprisonment if a person were

convicted of it, and as a matter of statutory

construction, read the statute as intending to

convey that knowledge of the requisite kind was a

prerequisite for guilt.

In the same way, we say this statute should

not be read literally, in its broadest possible

way, but subject to that general recognition.

There is a mens rea for the commission of this

offence, and there are forms of actus reus, or

elements of actus reus required. There are also,

we would submit, defences open to anyone charged

with this offence.	My friend submits that the
section abrogates all defences.	We say with

respect that that is not so. It is almost unknown
for a Commonwealth statute creating an offence to

contain within it most of the traditional defences

which are applicable in the criminal law.

For example, duress, a statute which creates a

Commonwealth offence does not say, "Any person who

not acting under duress commits the relevant act is

guilty of an offence". If one were to imagine the publisher of a newspaper with a pistol held to his head being required to publish this sort of

material, not being able to raise duress as a

defence because the statute was silent as to that

matter, then one has only to put the proposition,
we would say, to realize that the section does not
purport to be a complete codification of everything
that is relevant to the circumstances of the
commission of the offence. In the same way other

defences, such as honest and reasonable mistake of

fact, or necessity, would also be invoked, we would

submit, by the section in its ordinary

construction.

Nationwide(2) 42 16/4/91

We would submit that concepts which are

recognized as either defences or elements of the

offence of scandalizing a court at common law are

also, in our respectful submission, picked up by

this section upon its proper construction. They
are either picked up by the use of the word

"disrepute" and all that is implicit in that word -

and here we will come back to that argument in a

few moments - or, alternatively, there is another

way or route in which one can say that those

concepts are picked up and incorporated into the

section and that is by virtue of the application of

sections 79 and 80 of the Judiciary Act.

This is similar to the submissions that we put

to the Court, of course, during the argument about

the constitutional validity of the War Crimes

legislation.	We there drew the Court's attention
to the two decisions:	Osborne v Goddard,

(1978) 18 SASR 481, and Reg v Drury,

(1984) 1 Qd R 356. Just to remind the Court,

Osborne v Goddard held that the defences of duress

and marital coercion could be invoked in defence to

a prosecution for a Commonwealth offence under the

Social Security Act in South Australia and that

they were picked up and applied to that offence by

virtue of section 79 and 80 of the Judiciary Act.

In Drury's case it was held that the

requirement in Queensland that there be

corroboration of an accomplice's testimony was

picked up and applied to a Commonwealth trial -

that is, actual corroboration and not merely a

warning - by virtue of the application of

sections 79 and 80, I think particularly section 79

of the Judiciary Act.

So, that is an alternative route by which one would say that in so far as, under State law or

State common law or the common law of Australia,

such defences apply and can be invoked in relation

to the common law offence of contempt of court by

scandalizing, so, also, this statutory formulation,

in our respectful submission, picks up and applies

all these traditional defences and applies them in

the same way with such modification as are

necessary given the different kind of tribunal that

one is dealing with and its different obligations

to an offence of scandalizing this sort of

tribunal.

BRENNAN J: But the relevant problem here is not in terms of

mens rea or defences, it is in terms of the actus

reus, what is it which amounts to something

offensive to the subparagraph?

MR WEINBERG:	Yes, Your Honour.
Nationwide(2)	16/4/91
BRENNAN J:	And if that is published and published

deliberately and without duress, then the offence

is established. We are not concerned with mens rea

or duress or other offences here?

MR WEINBERG:  No, Your Honour, we are not directly concerned

with mens rea, in these particular circumstances, we are simply using the argument that mens rea is required for the commission of an offence under

this section to rebut the suggestion that this

section is to be read literally and in an absolute

fashion, and that even an inadvertent publication of material which would satisfy the actus reus of this offence constitutes an offence.

BRENNAN J: That is not the argument that is raised against

you. The argument that is raised against you is

that the actus reus of the statutory offence goes

beyond the actus reus of the common law offence of

scandalizing the court.	What is your answer to
that?

MR WEINBERG:  Your Honour, we had understood that the

argument went further than that, but certainly we
accept that that is part of the argument that is
raised against us and relevantly, we submit of

course, that it does not, that if one were to go to

the common law offence of contempt by scandalizing

and examine the actus reus of that offence, one

will find built into it a number of qualifications

which make it clear that reasonable criticism or

fair comment or a number of other formulations that

are embraced by the courts does not amount to the

common law offence of scandalizing the court, and

my friend has referred to some of those cases - I

may come back to them in just a moment. What we

submit is that those qualifications to criminal

liability which are embraced by the common law

offence of contempt of court through scandalizing the court are also, as a matter of construction, embraced by section 299(l)(d)(ii), the section	properly construed with full recognition being	given to the narrow meaning, we would say, of the
word "disrepute" and full recognition being given
to all of the elements that must be proved for the
commission of that offence, does not take the offence beyond the common law offence of scandalizing the court.
Now, we submit, that there is some assistance to be gained from the cases which deal with the
forerunners of section 299(l)(d)(ii). These are set out in paragraph 8 and if we could just remind
the Court of what is said in those decisions. Bell
v Stewart, firstly, 28 CLR 419 at 424. We will not
repeat passages that have already been read to the
Court. Could we take the Court, actually, to 425

Nationwide(2) 44 16/4/91

and we note, and this has been drawn to the Court's

attention already, that the members of the

High Court, Chief Justice Knox,

Mr Justice Gavan Duffy and Mr Justice Starke, who

dealt with this point at this page, confined the

word "disrepute" to, in effect:

synonyms, disesteem, discredit, disgrace or

dishonour.

Now, we submit those are in fact strong words.

They go far beyond what my friends have described

as criticism or adverse criticism and that the very

word "disrepute" itself imposes its own limitation

upon the scope of this particular offence. We also

take comfort in the passage which has already been

drawn to the Court's attention by His Honour

Mr Justice McHugh at page 426 where the Court said,

at about point 8 on the page:

Words calculated to bring a Court into

disrepute are words imputing to it, not

erroneous judgments or a mistaken view of the

subject it deals with, but, as in the case of

individuals, conduct or character that, if

true, would forfeit the respect of the

community.

Now, if that is, in fact, the connotation of the

word "disrepute" then, in our submission, the

section has built within it its own limitation or

qualification such as to make it clear that

reasonable criticism or criticism even
intemperately expressed does not per se give rise
to the commission of an offence under this section.

Rather the section is limited and it is limited to

a particular kind of criticism which is of such a

nature as to transcend fair comment or fair

criticism, to amount to scurrilous abuse or

allegations of bias or corruption, to go to the

very heart of the independence and integrity of the

commission which, in our submission, properly fall

within the terms of the section properly construed.

The Court will also find in - - -

DEANE J:	Where do you get independence from?
MR WEINBERG:	The independence of the commission,

Your Honour?

DEANE J: Yes. I mean, so far as a court is concerned you

do not need to expand on it, but when you have a government body performing legislative functions and entitled to take account of government

policies, what do you mean when you say you are not

allowed to attack its independence by analogy with

Nationwide(2) 45 16/4/91

the way you cannot attack the independence of a

court?

MR WEINBERG:  Your Honour, could we take the Court to

section 90 of the Industrial Relations Commission
Act. It has been put by my learned friends that in
some way the Industrial Relations Commission can be
regarded as being the government, or relevantly
being identified with the government. Section 90
sets out the precise way in which the commission is
required to have regard to what is called the

public interest:

and for that purpose shall have regard to: (a)

the objects of this Act; and (b) the state of

the national economy -

and we might pause there to say that the state of
the national economy is not the interests of the

government but rather, in our respectful

submission, a manifestation of the public

interest - - -

and the likely effects on the national economy

of any award or order that the Commission is

considering, or is proposing to make, with

special reference to likely effects on the

level of employment and on inflation.

The government is but one party to arbitral

proceedings before the Industrial Relations

Commission. Sometimes its submissions are accepted

by the commission, sometimes its submissions are

rejected by the commission. It certainly has a

right to intervene and to present arguments to the

commission but, in our respectful submission, that

does not detract from the essential independence of

the body.

McHUGH J: Indeed, historically, successive governments have

wailed against the refusal on the Arbitration

Commission to give effect to its policies.

MR WEINBERG:  My learned friend, Mr Shaw, tells me that it

is quite common for people to be appointed to the

commission with expectations that they will perform

in a particular way, which are often dashed, which

would not be inconsistent with what has sometimes

happened in superior courts.

So that what we say, in effect, is that the

body is an independent body. Of course, the

Parliament can rid itself of the body. It can, if

it chooses to do so, repeal the Industrial

Relations Commission Act and abolish the

commission. It can in that way deal indirectly

with problems which may very rarely·arise, and

Nationwide(2) 46 16/4/91

there is precedent, of course, for what I am saying

in terms of the abolition of the Conciliation and

Arbitration Commission and its replacement by the

Industrial Relations Commission.

DEANE J: In relation to that notion of independence, would

it then be to infringe to say that in so far as the

State and national economy is concerned and the likely effects on the national economy of any award

or order, the commission just accepts what the

government says and does what the government tells

it?

MR WEINBERG:  Your Honour, the commission is required to

material or evidence about the state -

have regard to the state of the national economy.

DEANE J:	Mr Weinberg, I was not for one moment suggesting that the comment I made was a justified or a true
one.  What I was asking you was whether, in view of
your definition of "independence", if an employer
or a union leader were to make that allegation,
would that infringe the notion of contempt that you
are applying to the commission?
MR WEINBERG:	To assert of the commission or its members

that they had departed from the statutory

obligations required of them under section 90 and

the other provisions of this Act and consciously
favoured the government, not - having regard to

section 90 - - -

DEANE J: Let us not spell it out, but all that is said is

in so far as the important provisions of

section 90(b) are concerned, all the commission
does is accept whatever the government says and act

on that assessment.

Your Honour, that might constitute an

allegation which could fall within the terms of the

section, yes, because that is not what the
commission is required to do.	The commission is
required to - - -

DEANE J: .... what was previously put to you by

Justice McHugh, that is apparently what some

governments expect it to do.

MR WEINBERG: Well, if governments are acting under a

misapprehension as to what the commission should do

and how it should perform its functions, then they

act under a misapprehension.

DEANE J: I follow. There is a problem though in

transferring this notion of independence from a

judicial body over a non-judicial body.

Nationwide(2)	16/4/91
MR WEINBERG:	There is, Your Honour, because plainly this

non-judicial body in exercising arbitral powers is

exercising legislative or quasi-legislative tasks

or performing quasi-legislative tasks.	One does
not resile from that.	One does not resile from the
fact that the Parliament can abolish the body.	One

recognizes, of course, that there are rights of
tenure of a particular kind given to the members of
the commission, but that they may not be rights of
such strength and force as are given to members of

the judiciary.

Our argument is one of analogy. We do not

attempt to assert that the Industrial Relations

Commission is to be seen as being, in a sense, on

all fours with a court. All that we say is that in

many of the things that it does, it performs

functions which are analogous to those performed by
courts and that it is reasonably open to the
Parliament, bearing in mind the kinds of factors

that we identified earlier, to accord the commission protection, not to protect the

sensibilities of the members of the commission but

to protect the public interest in the perception

that the commission does act independently, does

not simply rubber stamp government or union demands

or employer demands - - -

GAUDRON J:  The difficulty with that is that there would

seem to be nothing in the Constitution to prevent
the government saying that the powers, presently

vested in the commission, shall be exercised by whoever is the minister for Labour and National

Industry on a given day.

MR WEINBERG:  The argument might be, Your Honour, that that

would not fall within section 5l(xxxv) which limits

the powers of the Parliament to enacting laws for

the purposes of conciliation and arbitration of

interstate industrial disputes.

GAUDRON J:  Why would you say that rather than that, if

there is any limitation, it simply effects the way

that the minister would, in that situation,

exercise the power?

MR WEINBERG:  It is not required - it was not a

pre-requisite of section 51 (xxxv) that an

Industrial Relations Commission or a court or a Conciliation or Arbitration Commission would be

specifically established in the way that this

commission has been established to perform these

functions. The power is simply limited to ensuring

that a mechanism is found, an appropriate

mechanism, for - - -

Nationwide(2) 16/4/91

GAUDRON J: Well, where do you get the notion of

appropriate, you see, or how do you give that

notion content?

MR WEINBERG:  Only, Your Honour, that it must be capable of

being characterized as falling within

section Sl(xxxv). And if what Parliament were to

do was simply to say, "The Minister shall resolve

all industrial disputes as he sees fit based on the

interests and needs of the government or the

political party in the majority of the day", one

might have difficulty in saying that legislation of

that kind is legislation which, properly

characterized, falls within section Sl(xxxv).

GAUDRON J: Yes, I understand that but it does show that the

independence notion is not necessarily precisely

analogous.

MR WEINBERG:	It is not precisely analogous, Your Honour, and we do not submit that it is precisely
analogous.  What we say is that there is a notion
of independence which is important.

GAUDRON J: But is it a notion. of independence other than a

notion of a requirement to act judicially and to

apply, so far as they are adapted to the situation,

the rules of natural justice - - -

MR WEINBERG: It may be no more than that, Your Honour. It

may be that the -

GAUDRON J:	- - - which is not necessarily the same thing as independence?
MR WEINBERG:	By "independence", Your Honour, what I had

intended to convey was simply that to assert that

the commission is the mere puppet of one or other

of the participants who appear before the

commission and does not perform its own statutory

functions is to do great harm to the perception in

which the commission is and ought to be held by

those in the community who depend upon the

commission to perform its statutory functions. And

if one can come to that by saying, "Well, the

commission is required to act judicially and not to

approach matters with a predisposition or

prejudgment", then one comes to the same point.

I accept what Your Honour says about the need

to be wary of pressing the point of independence

too far and attempting to equate the members of the

commission and the commission with the independence

of the court and the independence of the judiciary.

I simply say there is an analogy; it can be taken

to a certain degree. I do not attempt to submit

that the two concepts are exactly and precisely

Nationwide(2) 49 16/4/91

identical; they work in different ways, in our

respectful submission.

So, if I come back to Your Honour

Mr Justice Deane's earlier question, it has been a

circuitous route, but it is that sense that we say

that the integrity and independence of the

commission are matters of importance, and that,

certainly in Bell V Stewart - I think I was going

to take the Court to Howard v Gallagher and also

Howard v Gallagher, the judgment of

Mr Justice Pincus. I will not do that because we

have set out the relevant pages that we rely on,

but both of those cases demonstrate that there are

limits to the forerunners of section 299(l)(d)(ii).
It is at least paradoxical that if my friend's

argument were correct, and the section did have the

width that he contended for, that the defendants in

each of Bell v Stewart and Howard v Gallagher were

acquitted of either one or all of the charges

brought against. If his contention were correct,

one would have expected them and just about anyone

else who had ever uttered a critical word about the Industrial Relations Commission to be convicted of,

if charged, with these offences.

The submission that we made in paragraph 9 of

our submissions was that this is part of a long-

established doctrine in the common law which

recognizes that the common law defence of contempt of court by scandalizing is not an absolute bar or

prohibition upon reasonable criticism of the courts

or the judges, that it is not an absolute bar upon

fair comment being made, even if incorrectly made -

if factually incorrectly made about what the judges

or the courts have done. If we could take the

Court to what is regarded, I think, as the leading

statement of principle, recognizing that limitation
in the common law defence of contempt of court, in

the judgment of R v Nicholls, (1911) 12 CLR 280.

I will just conclude my submissions before the

break, if that is convenient, by taking the Court

to this passage.

MASON CJ: Yes.

MR WEINBERG:  At page 286 in the judgment of the Court

delivered by the Chief Justice Sir Samuel Griffith,

His Honour said, in paragraph 2 on page 286:

It is said by Mr Weigall that they

suggest a want of impartiality, but we do not
find that in them, and I am not prepared to

accede to the proposition that an imputation

of want of impartiality to a Judge is

necessarily a contempt of Court. On the

contrary, I think that, if any Judge of this

Nationwide(2) 50 16/4/91

Court or of any other Court were to make a

public utterance of such character as to be

likely to impair the confidence of the public,

or of suitors or any class of suitors in the

impartiality of the Court in any matter likely

- to be brought before it, any public comment on

such an utterance, if it were a fair comment,

would, so far from being a contempt of Court,

be for the public benefit, and would be

entitled to similar protection to that which

comment upon matters of public interest is

entitled under the law of libel.

And perhaps, after the luncheon break, I will

attempt to demonstrate to the Court that that

passage has been followed and applied by this Court

subsequently.

MASON CJ:  Thank you, Mr Weinberg. The Court will now

adjourn and will resume at 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

MASON CJ: Yes, Mr Weinberg.

MR WEINBERG: If the Court pleases. Prior to the luncheon

adjournment, I had taken the Court to R v Nicholls

and cited from the judgment of the Court the

passage which we say supports the proposition that

at common law the offence of contempt of court was

subject to qualification or modification in

relation to a defence of fair comment.

Alternatively, that fair comment was not embraced

within the definition of the offence itself.

If we could take the Court to R v Fletcher;

ex parte Kisch, 52 CLR 248 and in particular, a
passage in the judgment of His Honour

Mr Justice Evatt at page 257. At the bottom of

page 257 His Honour, as part of an endeavour to

state a number of principles governing the legal

position said this, in paragraph 4:

Fair criticism of the decisions of the Court

is not only lawful, but regarded as being for

the public good; but the facts forming the

basis of the criticism must be accurately

Nationwide(2) 51 16/4/91

stated, and the criticism must be fair and not

distorted by malice.

_ His Honour referred to Nicholls' case in support of

-that general formulation. Furthermore, if we could

draw the Court's attention to a passage in

R v Dunbabin; ex parte Williams, 53 CLR 434 in the

judgment of Mr Justice Rich, delivering a judgment

which was agreed in by other members of the Court.

At page 442, towards the bottom of the page,

His Honour put the matter this way, about point 8:

The jurisdiction is not given for the purpose

of protecting the Judges personally from
imputations to which they may be exposed as
individuals. It is not given for the purpose

of restricting honest criticism based on

rational grounds of the manner in which the

Court performs its functions. The law permits

in respect of Courts, as of other

institutions, the fullest discussions of their

doings so long as that discussion is fairly

conducted and is honestly directed to some

definite public purpose. The jurisdiction

exists in order that the authority of the law

as administered in the Courts may be

established and maintained.

McHUGH J: Could I just ask you this question, particularly

having regard to what was said in Fletcher. When

Mr Justice Evatt spoke about "the facts", is he talking about non-derogatory facts, or is he talking about facts which themselves impugn

improper motives?	He says, "The facts must be
accurately stated."

MR WEINBERG: "The facts forming the basis of the criticism

must be accurately stated" is what His Honour says.

McHUGH J: Yes. Now, does that mean that you can allege

that a commissioner took a bribe and then say as a

criticism that he should be removed from the

commission?

MR WEINBERG:  If the fact forming the basis of the criticism

were true, namely, that the commissioner had taken

the bribe and the principle underlying statements

of this kind seems to be that it would be fair

comment or fair criticism to publicly assert that a

commissioner had taken a bribe if that were true,

then the criticism attached to that would, in our

submission, also be protected. One would be

perfectly entitled to say, "He took a bribe.

Therefore he is unfit for office. Therefore he

should be removed."

Nationwide(2) 52 16/4/91

McHUGH J: But in the scandalizing a court jurisdiction, you

cannot impute improper conduct or improper motives,

Cai) you, just as a fact? Supposing there was no

criticism, but just the allegation that the

commissioner had taken a bribe, what is the

situation there?

MR WEINBERG:  Your Honour, the cases are not entirely clear

as to whether justification or truth constitutes

what is described as a defence to a charge of

scandalizing the court, and there are two views:

one is that it ought to be a defence. A second

view is that it ought to be a defence, but only if

the true statement can be described as being in the

public interest as well as being true. And I

suppose there is a third view which says that it
ought not to be a defence at all because to

recognize it as a defence would be to invite

protracted litigation, litigants who were

unhappy - - -

McHUGH J: That was the view of the Phillimore report, was

it not?

MR WEINBERG:  Yes, that is so. I think, if I recollect,

Your Honour, that Phillimore recommended that truth

should be - - -

MCHUGH J:  And public benefit.

MR WEINBERG:  And public benefit ought to be a defence. But

that has not universally been accepted and there is

this other consideration.

McHUGH J: Well, now, assuming that you can raise these

factual matters, who bears the onus of proof in

relation to it?

MR WEINBERG: Again, Your Honour, this comes back to

something was debated during a War Crimes exercise.

The question is whether truth, if asserted,

constitutes an affirmative defence in which the

onus of proof would rest upon the defendant to

.affirmatively prove the truth of that which was

asserted. An alternative possibility would be that

the defendant must at least raise the issue of

truth in an evidential sense - adduce some

evidence to support the proposition of truth and

then it would be for the prosecution to prove

beyond reasonable doubt that the assertions were

not true. Those would be the possibilities.

The third possibility is that truth is no

defence at all. But what we say is the better view

in Australia seems to be that if an attack is made

upon the court and a charge is brought of contempt

of court by scandalizing, that where the attack is

Nationwide(2) 53 16/4/91

truthful and warranted and in the public interest,

then the offence is not made out. Now, whether

tnat be because there is an onus upon the accused

or whether it be because the prosecution has not

negated beyond reasonable doubt what he said about

that, would be a matter to be debated in other

places. But what we say is that a warranted attack

which amounts to justified criticism and is in the

public interest is not a contempt of court at

common law and is not, in our submission, caught by

the language of section 299(l)(d)(ii) upon its

proper construction.

If we could assist the Court by reminding the

Court that in Dunbabin's case, (1935) 53 CLR 434

there is a passage in the judgment of

Mr Justice Rich which I read to the Court - I read

that to the Court just a moment ago - and

His Honour then went on to say:

The cases are collected and the principles

expounded in the judgment of Evatt Jin

R v Fletcher; Ex parte Kisch.

Gallagher v Durack,
There is reference in in this be warranted or unwarranted in order to constitute

the - whether the attack must be unwarranted in
order to constitute the offence. Gallagher v

Durack is reported at 152 CLR 238 and in the joint judgment of the Chief Justice Your Honour

Mr Justice Mason, Mr Justice Wilson and

Mr Justice Brennan, at page 243, at about point 5

of the page - I think this passage may already have
been read to the Court but I might just read this

part of it again:

The authority of the law rests on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges. However, in many cases, the

good sense of the community will be a

sufficient safeguard against the scandalous

disparagement of a court or judge, and the

summary remedy of fine or imprisonment "is

applied only where the Court is satisfied that
it is necessary in the interests of the

ordered and fearless administration of justice

and where the attacks are unwarrantable".

The word "unwarrantable" appears and the reference

is made to the judgment of Mr Justice Evatt at page

257 of 52 CLR.

Nationwide(2) 54 16/4/91

In our submission, certainly His Honour

Mr Justice Gray in the case of Howard v Gallagher

iQ the Full Federal Court took the view that it

·- would be unthinkable that truth would not

·constitute a complete answer to a charge under the

~Orerunner of section 299(l)(d).

McHUGH J:  I must say I have difficulty with that. I can

understand the argument that section 299 does not

exclude a defence of fair comment. I have greater

difficulty in seeing how it allows a defence of

justification.

MR WEINBERG:  There are public policy questions involved,

because it might necessarily involve having to call

members of the Industrial Relations Commission to

give evidence to rebut the particular factual

allegation which was made against them and in the

context of a court to invite the judge or judges of

the court to give evidence, again rebutting the

particular factual allegations made against them.

McHUGH J: Particularly in the context of this section,

Mr Weinberg, because much might depend upon what

you are charged with. Supposing somebody said to a

member of the commission, "You are corrupt", if you

charge him with insulting language under

section 299(l)(c), it is difficult to see how the

issue of truth could arise there. On the other

hand if you charge him under section 299(l)(d), you

seem to suggest that the issue of truth would be

relevant.

MR WEINBERG: Well, we do submit that it would be relevant.

We submit that to truthfully, by writing or speech, use words which would have effect of bringing, or

have a tendency to bring, members of the commission

or the commission into disrepute, to do that

truthfully in circumstances where at least it can

be said that what is done is in the public

interest, could not, in our submission, constitute

common law, this section, we submit, ought to be	an offence, but would not constitute an offence at
_construed against the background of the common law.
It ought to be construed narrowly; it ought to be
construed in favour of the liberty of the subjects,
so far as any ambiguity in the section needs to be
resolved. It ought to be resolved that way.

McHUGH J: Bu.tit is because it is true that it would bring

a person into disrepute and therefore - - -

MR WEINBERG: False assertions can bring people into

disrepute.

McHUGH J:  Of course they can, but more so if it is true.

Nationwide(2) 55 16/4/91

MR WEINBERG:  And rightly bring them into disrepute, if I

could - - -

McHUGH i:· But that is not what the section says. It says

· if you bring a member of the commission or the

-commissioner into disrepute then you commit an

offence.

MR WEINBERG:	And we submit that the common law formulation of contempt of court in its pristine formulation
says nothing about truth or justification. If we
went back to Oswald on Contempt or indeed, the judgment of His Lordship Lord Justice Russell, the
Chief Justice in Gray's, one will find absolutely
nothing about whether justification or fair comment
is built in to the definition of the offence.
Perhaps I could take the Court to that as it is the seminal formulation of common law contempt of
court. It is R v Gray, (1900) 2 QB 36, and in
particular the passage appears at page 40, about half-way down the page, His Lordship the
Chief Justice said this - and this is the
formulation that has been picked up ever since and
adopted in England and many times by courts in this
country:

Any act done or writing published calculated

to bring a Court or a judge of the Court into

contempt, or to lower his authority, is a
contempt of Court.

Now, it does not use the word "disrepute". Oswald on Contempt speaks of "disrespect" and "disregard"

rather than "lowering his authority". It is the

Commonwealth statute which introduces the word
"disrepute". Then, a little lower on the same page

His Lordship says this:

The former class belongs to the category which

Lord Hardwicke L.C. characterised as

"scandalising a Court or a judge." That

description of that class of contempt is to be

taken subject to one and an important

qualification. Judges and Courts are alike

open to criticism, and if reasonable argument

or expostulation is offered against any

judicial act as contrary to law or the public

good, no Court could or would treat that as

contempt of Court.

McHUGH J: But it takes its stand on a judicial act, and the

hypothesis is that the judge has done something

judicially which attracts criticism.

MR WEINBERG: Well, it says, with respect, Your Honour:

and if reasonable argument or expostulation -

Nationwide(2) 56 16/4/91

it would be reasonable argument or expostulation,

in our respectful submission, to state truly facts

aoout a judge which would constitute a sufficient

criticism to bring the judge into disrepute.

McHUGH J:  And, are the strange results of this case that

you are arguing for a very limited view of this

section, and your opponent is arguing for a very

wide - - -

MR WEINBERG:  Yes, it is a paradox, Your Honour, because if

the Court were to accept my friend's submissions as

to the construction of the section, but none the

less uphold its validity, he would be constrained

to plead guilty.	He would have no possible
argument below.	We are prepared to embrace a

narrow construction of the section, not simply

because that assists constitutional validity, but

because we submit that is the correct construction

of the section in accordance with the common law

background in which it fits, and we are more than

happy to undertake the onerous task of proving all

these elements against his client if and when we

ever succeed in getting his client before a court

to have that matter determined. But Your Honour

correctly identifies that paradox.

If the Court pleases, I will not take the

Court to the somewhat florid language of Lord Atkin

in Ambard v Attorney-General for Trinidad and

Tobago, (1936) AC 322 at page 335, which we have

cited. It is a well-known passage; a little dated

perhaps now, but none the less it again makes the
point that the common law offence is subject to

these qualification, which protect reasonable

criticism and fair comment, query, justification.

That is the best we can do with justification.

The final matters - we have addressed the

matter contained in paragraph 10. It is the case
that the defendants in both Bell v Stewart and

Howard v Gallagher were acquitted of at least some

of the charges brought against them. It is the

-fact that if my friends's approach to construction

of the section were correct, then it is difficult
to see how those defendants could have escaped

conviction in those cases.

We then, in paragraph 11, cite the passage

that has already been read to the Court in

Gallagher v Durack and we, with respect, submit

that that must be right. There are two principles

and they must be reconciled and a balance must be

achieved and, in our respectful submission,

Parliament has, and is entitled to, draw the line

at the point at which it is drawn under

section 299(l)(d)(ii) properly construed.

Nationwide(2) 57 16/4/91

Might we also, in the same vein as Gallagher

v Durack, hand to the Court copies of a judgment

delivered by Your Honour Mr Justice McHugh when Your Honour was a member of the New South Wales

· Court of Appeal, in a case that we have not

included in our list of authorities. It is The

Prothonotary v Collins, (1985) 2 NSWLR 549. We

have copies of that judgment for the Court and a

copy for our learned friends. The passage we wish

to draw to the Court's attention appears at

page 562 and is marked by a yellow flag and also

highlighted. If we could just read that passage to

the Court.	Your Honour Mr Justice McHugh said in
that case:

Freedom to express opinions and to convey

ideas and information is basic to the
maintenance of liberty in any society. But
the common law, reflecting the overwhelming
opinion of Anglo-Australian society over

several centuries, has not treated this

freedom as absolute. Courts in the United

States have reached the same result

notwithstanding the powerful terms of the

First Amendment and the impassioned pleas of

Justices Black and Douglas. When the

expression of an opinion or the communication
of information is likely to interfere with the

fair trial of a criminal charge, the common

law has very much preferred the right to a

fair trial upon legally admissible evidence.

The law of contempt, or as I would prefer to call it - the law relating to interference

with the administrations of justice, seeks to

strike a balance between the competing values

of a fair trial and freedom of expression.

Many informed persons think that the present

law of contempt unduly restricts freedom of

expression. Opinions in a democratic society

will inevitably differ as to where should be

of information, ideas and opinions a criminal	drawn the line which makes the communication
offence. But that a line exists is not open
to doubt.

Now, we would, with respect, adopt that passage. Opinions in a democratic society do differ as to

where the line should be drawn and in a democratic

society it is the Parliament which gives
expression - primary expression - to where the

public interest lies and where the members of the

community believe that that line ought to be drawn,

the members of Parliament being answerable in a

democratic society to the electors who elect them

and can remove them from office.

Nationwide(2) 58 16/4/91

In our respectful submission, nothing in

section 299(l)(d)(ii) can be said to involve a
d~awing of the line at a point beyond the power of
the Parliament. It is a choice open to the
farliament to fix the line where it has been fixed.

-In relation to other statutes, it has chosen to use

a different formula. In relation to a number of

statutes of the Commonwealth Parliament this

formula, or something very much akin to it has been
used.

We draw the Court's attention to the Australian Law Reform Commission report No 35 on

contempt. Appendix D at page 596 contains a number

of examples of other legislation which uses and

adopts a similar formula or the identical formula

to the one under consideration here. Might we add

that it is not confined to statutes. One finds

this formula adopted in regulations as well and

could we, as an example, give the Court the

extradition regulations of 1988. Regulation 10 is

in identical terms to the section under

consideration in this case. I understand that the

learned Solicitor-General will take the Court to

the relevant materials in the book of materials

which illustrate that particular principle.

If the Court pleases, those are our

submissions.

MASON CJ:  Mr Weinberg, before you resume your seat, it does

seem to me that there is at least one problem in

this case. What I am about to say perhaps is

something that ought to be said more directly to

Mr Sackar than to you, but the first question is:

is the 78B notice in this case adequate? Now, the

78B notice merely identifies an argument of lack of

legislative power .

MR WEINBERG:	Yes, Your Honour.
MASON CJ: There is no reference in the 78B notice to an

implied guarantee or to section 92 of the

. Constitution.

MR WEINBERG: That is correct, Your Honour.

MASON CJ:	The question therefore is whether the Court can proceed further in the light of the adequacy of the
notice as reflecting the issues that appear to have
been raised in argument.  Now, of course, at the
moment we do not know precisely from Mr Sackar
whether he is relying on section 92. He did say in
response to Justice Deane that section 92 partly
overlaps with the implied guarantee argument that
he has presented. But I have taken it that he is
not disavowing reliance on section 92.

Nationwide(2) 59 16/4/91

MR WEINBERG:  Your Honour, we do not suggest that he has disavowed reliance on the section, nor did we

. di_scern from his argument that he was expressly

· relying upon the section or advancing argument

~ased upon the section.

MASON CJ:	So we have the defect in the notice, and in addition to that it seems that the special case
does not adequately raise reliance on section 92. One would need to have some recitation of fact to
bring the case within the ambit of that section assuming it otherwise falls within the ambit of
that section.
MR WEINBERG:	Your Honour, the first time that section 92 -

and it was perfectly obvious to the Court that this

was the case - had crossed my mind in relation to

this matter was this morning when I was confronted

with it at the commencement of my argument.	We had
not prepared to argue section 92.	We had not

anticipated that section 92 would be raised in any

way, shape or form in these proceedings.

MASON CJ: Well, that suggests that in every constitutional

case that is brought before the Court there ought

to be a directions hearing to begin with. But putting that to one side, there is obviously a
problem. Can the Court proceed further in the

case? I should say by the way that there was no

reflection on the removal application of an

intended reliance either on an implied guarantee or

on section 92.

MR WEINBERG: That is so in respect of section 92,

Your Honour. My recollection of the argument

addressed to the Court orally on the removal

application was that there was some reference

to - - -

MASON CJ:  Was there?

MR WEINBERG:  - - - implied guarantees during the course of

argument. So part of what Your Honour says we

would, with respect, endorse.

MASON CJ: Well now, what do you suggest the Court ought to

do in these circumstances?

MR WEINBERG:	Your Honour, in our submission, the Court ought to call upon my friend, Mr Sackar, to tell
the Court what his position is and then hear from
myself and the learned Solicitor-General once we have heard what his position is.

MASON CJ: Yes, Mr Sackar, what do you say?

Nationwide(2) 60 16/4/91

MR SACKAR:  Your Honour, on the question of implied guarantee I have seen Mr Charles' notes of

-· ar--gurnent. He raised squarely the question of

__ ·implied guarantee and I do not think the learned

·$olicitor would disagree with that proposition.

·But that being so, having discussed it over lunch,

I am seeking formal instructions as to the section

92 matter.	I anticipate having it within 10 or 15
minutes.	I do not wish to inconvenience the Court,

but I do not want to speculate as to what those

instructions will be.

MASON CJ:  What about the 78B notice?

MR SACKAR: Absent the section 92 point, we would submit

that the question on page 4 which was removed would

pick up the question that we have principally

directed our minds to and, in addition to which, as

I have said, Mr Charles raised explicitly on the

removal application, as I understand it. That is

irrelevant, but the first question would -

MASON CJ: But is that good enough in terms of the

78B notice?

MR SACKAR: Well, it may not be. It may not be, in which

case it may need to be remedied, clearly in that

respect, at least.

MASON CJ:  I am reminded, Mr Sackar, that in paragraph 5 of

the 78B notice, the contention that is recited is that there is no head of legislative power in the

Constitution that authorizes the enactment of the

section.

MR SACKAR:	Yes.
MASON CJ:	Now, that directs the attention of the reader

away from the existence of an argument based on an

implied guarantee.

MR SACKAR:  I accept that. To that extent it would need to

-be amended, and hopefully I can inform the Court

very swiftly of what the position on section 92 is,

but clearly the matter is unsatisfactory and it

cannot proceed if we want to take that more

substantive point.

McHUGH J: States have a very considerable interest in if

section 92 applies or an implied guarantee of

freedom of speech.

MR SACKAR: Unquestionably. Certainly, I accept that

without comment.

Nationwide(2) 61 16/4/91

MASON CJ:  Mr Weinberg, in the light of that illumination,

what do you now say?

MR WEINBERG:  Your Honour, we are very much in the hands of

-:the Court. We do not object to my friend having a

short time to gain some instructions if that is not

inconvenient for the Court, and being able to tell

the Court exactly what the position is. Maybe that

would be the best course, as he says that he

requires only about 10 minutes or so to get those

instructions.

MASON CJ:	But we are still left with the inadequacy of the notice.
MR WEINBERG:	I agree with that, Your Honour, and it may be

that if he gets those instructions he will seek to

adjourn the further hearing of this case and

reissue a further and fresh 78B notice. That is a

matter for him.

MASON CJ:  Yes. Thank you. Mr Solicitor, do you wish to

say anything on this issue?

MR GRIFFITH:  Our submission is, Your Honours, that this

matter is really beyond instructions. We picked up

from the section 78B notice only that the issue of,

as we read it, Your Honours, conciliation and

arbitration power was in issue. We read the

transcript of the removal, Your Honour, and picked

up the implied freedom argument and so we, as a

matter of fact, had some notice of that,

Your Honour.

We did not have any notice of the section 92

argument, of course, but Your Honour, I am in no

position to comment on behalf of each of the States

and Territories. It would be obvious, Your Honour,

the section 92 point would be of great moment to
the States and Territories. As to their view on

the implied freedom power, I do not know,

Your Honour, but of course section 78B does not

give the capacity for the Court to speculate about

response. It is the requirement for the notice.

And if the view is conceded, as I understand, and

taken by the Court, that the notice is inadequate,

apart from the possibility of severance and

proceeding on the non-constitutional points, which

would be a construction point, there does not seem

to be a capacity for discretion on the issue.

As to whether or not there should be severance

in the court proceedings, we are quite happy to
continue, Your Honour, but the problem is one

quickly gets, particularly in response to questions

from the Bench, to dealing with aspects of power in

dealing with issues of construction.

Nationwide(2) 62 16/4/91

MASON CJ:  But I suppose, in your case, you are entitled to the benefit, such as it may be, of consultation

_wi~h your colleague Solicitors-General.
MR GRIFFITH: Yes, well perhaps I could indicate to the

·court, Your Honour, we are having a meeting on

Friday so the consultations can occur very quickly

in that way. I will convey it orally to them so

there is no need for a great time, Your Honour.

But that would be so on the section 92 point,

Your Honour. It was the question left open in Cole

v Whitfield and one would expect a full house in

dealing with that, if that were to arise.

MR SACK.AR: If the Court pleases.

TOOHEY J:  Would it be possible to give us an idea,

Mr Sackar, what the section 92 point is.

MASON CJ:  Or might be.

TOOHEY J: Without tying you to the form of notice, but just

so that we can understand generally what the issue

is that might arise.

MR SACKAR:  If I may be permitted in one moment to do that.

All I was going to say was that we do not see the

benefit in severing the constitutional issue from a

construction point and therefore it would seem as a

matter of practical reality the 78B notice ought to

be amended to candidly raise the implied guarantee

point. For that to be properly dealt with it would

require the matter to be adjourned and it would

need to be done so in any event if we were to take

the section 92 point. So the only question really
is, with respect, the form of the ultimate 78B

notice which would be recirculated.

McHUGH J: There is one outstanding matter on the section 92

point and that is the facts.	They do not allege an
interstate circulation.

MR SACK.AR:  Yes, well, I do not imagine that would be a

difficulty. I cannot think of any factual matter

which would be a difficulty in terms of the

statement - I think it would be a matter of agreed

statement of facts. So, what I am saying is I need

the ten minutes to get some instructions, I will

then try and formulate, if need be, the section 92

point but in any event the matter should be

adjourned for the purposes of at least an amendment

to the 78B notice to candidly raise this implied

guarantee.

MASON CJ:  I see little point in that, Mr Sackar. It seems

to me that it is inevitable, having regard to the

command in section 78B, that the matter ·should

Nationwide(2) 63 16/4/91

stand adjourned to a date to be fixed and these
other steps can be taken in the meantime, both in
relation to the notice, whether or not that is to
include section 92 or not, and in relation to an

amendment of the special case if section 92 is to

:b~ raised. So I think the Court proposes to stand

the matter over to a date to be adjourned.

MR SACKAR:  Yes.

MASON CJ: Might I just say, and this may seem a somewhat

unkind remark, that the list of authorities handed

to the Court contained no less than 89 authorities.

It is not apparent at this stage that there was a

need to include so many authorities on the list.

It does entail a good deal of work on the part of

the Court's staff and, in retrospect, it can be

said that the one authority not mentioned on the

list was Cole v Whitfield.

Now, Mr Sackar, the Court will adjourn the

matter to a date to be fixed and before fixing a
date I think the matter ought to come before a

single Justice on a directions hearing to ensure

that it is then in proper order before it comes

back to the Full Court. So that is the order the

Court will make. It will stand adjourned to a date

to be fixed.

MR SACKAR: If Your Honour pleases.

MR WEINBERG:  Would Your Honours reserve the question of

costs of today?

MASON CJ:  The Court will reserve the question of costs.

The Court will now adjourn until 10.15 am tomorrow.

AT 2.50 PM THE MATTER WAS ADJOURNED

TO A DATE TO BE FIXED.

Nationwide(2) 64 16/4/91