Reith v The Honourable Mr Justice Morling

[1988] HCATrans 167

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M57 of 1988

B e t w e e n -

PETER KEASTON REITH

Plaintiff

and

THE HONOURABLE MR JUSTICE MORLING,

COLIN ANFIELD HUGHES, and IAN CASTLES, LIONEL BOWEN (Attorney-General for the

Cormnonwealth of Australia) and

COMMONWEALTH OF AUSTRALIA

Defendants

Application for declaration and

interlocutory injunction

DAWSON J

Reith

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

aT MELBOURNE ON FRIDAY, 12 AUGUST 1988, AT 9.29 AM

Copyright in the High Court of Australia

M2Tl/l/PLC 1 12;8/88

MR A.H. OOlDBERG, QC:  If Your Honour pleases. I apDear with my

learned friend, MR J.E. MIDDIBI'ON-, "for the pl.aintiff.

(instructed bYWeigall & Crowther)

MRJ.D. REYDON, QC: If the Court pleases, I appear with

MR~HAYES, for the first three defendants.

(instructed by Freehill Hollingdale & Page)

_MR G. GRIFFI'l'H, QC, Solicitor-C-eneral for the Canm:mwealth: I appear with

my learned friends, MR s~P •. CHARLES, QC and MRC.M. :MAXWEU..,

for the fourth and fifth defendants.

(instructed by the Australian Government Solicitor)

HIS HONOUR:	Yes, Mr Goldberg.
MR GOLDBERG:	Your Honour, the matter before you this morning

consists of two interlocutory proceedings, if I

can put it that way, based upon a writ that was

issued yesterday.	Has Your Honour had an
opportunity -

HIS HONOUR:  I have read the writ and the supporting affidavit

and the summons which is all I have.

MR GOLDBERG:	Your Honour has not got any exhibits?
HIS HONOUR:	No.
MR GOLDBERG:	Your Honour, if I can indicate briefly what the

situation is and the reason why we come before the

Court this morning.	Has Your Honour got a copy
of the REFERENDUM (MACHINERY	PROVISIONS)ACT 1984
readily accessible?

HIS HONOUR:	I have.
MR GOLDBERG:	Your Honour, there is scheduled to be conducted

on September 3 a referendum in relation to four

questions which are being put to the electors of

Australia. I use the word "electors" because that

is the word one finds in the legislation. The

government is proposing to have a television advertising
campaign which on the material appears to be starting

either on Sunday or later next week.

HIS HONOUR:	The date given in the affidavit is the 16th.
MR GOLDBERG:	That is so, Your Honour. There was some suggestion

that it was going to start on the Sunday but the

date in the affidavit is the 16th, Your Honour.

We contend, Your Honour, that the expenditure of

money on that advertising campaign is a breach of

section 11(4) of the REFERENDUM (MACHINERY	PROVISIONS)ACT
The Electoral Commission is charged with the

administration of that Act and under section 139 of

that Act - I think it is subsection (1), Your Honour,

on page 69 of·the print of the statute, there is

M2Tl/2/AC	2	12/8/88
Reith

entrusted to the Electoral Commission the power

to seek injunctions in a prescribed court, which

appears to be a supreme court of a State,to restrain

a contravention of any provision of the statute.

Mr Reith, Your Honour, the plaintiff, the

shadow Attorney-General, has had correspondence

and dialogue with the Electoral Commission and has

put to the Electoral Commission the fact, or his

submission, that these proposed advertisements,

or at least two of them and more particularly,

expenditure on them is a breach of section 11(4)
of the statute and has invited the Electoral Commission
to take proceedings to restrain the expenditure

on those advertisements in breach of the statute.

The Electoral Commission has not done so,

Your Honour, so we come to the Court on two levels and it may well be, Your Honour, that from a

procedural point of view the matter can be resolved

fairly easily. We come to the Court and we say,

as against the Electoral Commission and as against

the Commonwealth, we seek a declaration that the

expenditure by the government on these television
advertisements is a breach of section 11(4) and

in consequence of that declaration, Your Honour,

we seek injunctive relief. We, of course,

Your Honour, have no standing under the

REFERENDUM (MACHINERY PROVISIONS}ACT 1984 to seek

injunctions before the prescribed court so we have

adopted the procedure of seeking an order for a

writ of mandamus directed to the Electoral Commission
directing it to take proceedings in a prescribed

court to restrain the expenditure on these advertisements.

Now, Your Honour, the point that we wish to

have determined, if I can say this loosely and

in a non-legal way for the moment, is whether

or not the expenditure by the g0vernment on these

advertisements is a breach of the statute. We would

hope and expect if the Court were so to declare

then the advertisements would not be put to air

but out of an abundance of caution from a procedural

point of view we have adopted the procedure to which

I have already referred.

Now, Your Honour, if we can determine this

substantive point in this Court and the Commonwealth

indicates it will be abide the result - - -

HIS HONOUR:	What, do you mean today?
MR GOLDBERG:	Well, whenever it can be done, Your Honour - - -
HIS HONOUR:	What are you asking? Are you asking me to deal with the matter on a final basis?

M2Tl/3/AC	3	12/8/88
Reith

MR GOLDBERG:  Your Honour, I am because I believe, Your Honour,

it is a discrete point. The exhibits to the

affidavit, Your Honour, contain all the material

upon which the Court needs to determine the matter

because,in my submission,what is required in order

to determine whether or not these advertisements
involve a breach is to have a look at the advertisements,

to have a look at what I will call loosely the

pamphlet that the Electoral Commission has put out	to electors which has, loosely, the "yes" and the 11 no 11
case - the for and against the referenda -and then
it becomes a matter of proper construction of the statute and an analysis of the advertisements.

We have sought, Your Honour, in the time available

to us to reach an agreed statement of facts with our learned friends. We are not quite there but

I believe we are almost there

HIS HONOUR: All I have at the moment is an unsworn affidavit,

is it not?

MR GOLDBERG: Well, I understand that, Your Honour, and I had

hoped that the sworn affidavit would be before

Your Honour now. Mr Reith the deponent, Your Honour,

has been interstate and was arriving back very early

this morning and it appears that his plane has been

delayed or is not yet here if the affidavit has

not been sworn but I am instructed, Your Honour,

it will be sworn very, very soon. But what we wished

to do, Your Honour, was not lose any time and to

come before the Court as quickly as we could.

You see, Your Honour, what·has happened:when

these advertisements became known to us, or the

fact that they were going to go to air, as

Your Honour will see in the affidavit,Mr Reith

spoke to the Electoral Commission through Dr Hughes

and was subsequently given an advice from senior

counsel and then Mr Reith sought his advice.	The
advice that was given to him was conveyed to the

Electoral Commission and they were given the

opportunity to act upon it and the Electoral Commission

earlier this week indicated it was not disposed

to do so because it had received advice that the

advertisements were not in breach of the statute

so we have moved as quickly as we can thereafter,

Your Honour, to come before the Court.

Now, Your Honour, if - and Your Honour will

need to hear from my learned friends - we can agree

upon the facts fairly quickly which I think we

probably can, I would be asking Your Honour to deal

with the matter -today. If we are unable to do that,

Your Honour, I would be asking Your Honour to deal

with the matter on an interim or an interlocutory basis on the basis of the material before you and

M2Tl/4/AC	4	12/8/88
Reith

either seek an undertaking from the government that

it will not put these advertisements to air until

the matter is determined or if the undertaking is

not given on the basis of the material grant an

injunction. So that is the - - -

HIS HONOUR:  I take it you would be seeking a determination

of the ultimate issue before the Full Court?

MR GOLDBERG:  Not necessarily, Your Honour, I had not turned

my mind to that.

HIS HONOUR:  But in any event, there are constraints of time

1n this Court.

MR GOLDBERG:  Indeed. Well, that is why we have come 1n haste,

Your Honour.

HIS HONOUR:  And there is a procedure which is available that

would overcome that, of course, mich is remit it to the

Federal Court~

MR GOLDBERG:  We prefer to stay here, Your Honour,in terms

of time.

HIS HONOUR:  Yes, but it may not be possible and it may not be

the right thing to do because it may be, effectively,
either party would be deprived of an appeal which

would be available in the Federal Court at short

notice.

:MR GOLDBERG: Well, Your Honour, in a sense, I am in the hands

of my learned friends. If they are prepared to

not put the television advertisements to air

until this point is determined by the Court after

full argument and not imposing upon the Court in any

way, then I would accept that.	We are anxious for
the point to be determined, Your Honoµr.	It is a

short point. We are ready to argue it; my

friends may not be and I understand that.	But in
the meantime, Your Honour, we do not want the stable

gate to be closed after the horse has bolted.

HIS HONOUR:	Yes.
:MR GOLDBERG:	But I am ready to argue the point, Your Honour,

subject, of course, to the convenience of the Court and the readiness and ability of my learned friends to respond.

HIS HONOUR: Well, what you are asking for at the moment, any way,

is an interlocutory injunction, so we had better see

the advertisements and read the exhibits, I think.

:MR GOLDBERG: Yes, Your Honour. Well, Your Honour, what I should

do is if the exhibits could be handed up to

Your Honour - - -

M2Tl/5/PLC	5	12/8/88
Reith

HIS HONOUR:  There is an amount of reading there, is there?

MR GOLDBERG: Yes, Your Honour.

HIS HONOUR:  It would have been better if I could have done

that before but rather than sit here doing that would

it be preferable for me to retire and read this and

then come back?

MR GOLDBERG:  Your Honour, I ought to say this, and it is a

problem we have had before and it may be of assistance

in the future; we sought to file the exhibits for that

very reason. The Registry would not take them.

HIS HONOUR:  I see. All right, it would be a good idea if I

retired to read these, would it, rather than sit here
reading it while you maintain your silence?

MR GOLDBERG: Yes, indeed, Your Honour. HIS HONOUR: All right, I will do that.

AT 9.42 AM SHORT ADJOURNMENT

M2Tl/6/PLC	6	12/8/88
Reith
UPON RESUMING AT 9.56 AM:
HIS HONOUR: Yes, Mr Goldberg.

MR GOLDBERG:  Since Your Honour rose, two things have

happened. Your Honour, Mr Reith isnow in Court

and the affidavit will be sworn momentarily. Secondly,

Your Honour, we are well advanced and almost to the point

of an agreed statement of facts.

HIS HONOUR:	Yes.
MR GOLDBERG:	Your Honour, if I can indicate from a

procedural point of view what is before the Court

and how the matter can be resolved. When the

proceedings were instituted it was not clear to

us whether there would be a challenge to the standing

of the plaintiff to bring these proceedings. As I

said to Your Honour, under the legislation, only
the Electoral Commission has the power to seek

injunctions. All we could have got under the Act

was declaratory relief. The application for a

writ of mandamus was joined in the proceedings to give us the standing in this Court in relation- to the issue as to whether or not the Commission should

or not take proceedings and we had expected that if

we got the substantive point determined our way,

then both the Commonwealth and the Commission was,

as it were, apt according to law.

What I wish to do, Your Honour, in terms of

getting the matter resolved is to try and, as it

were, slice through the _procedural matters and have

the substantive point determined on that basis. I

believe my learned friends would be agreeable to

that, but perhaps they ought to indicate their view,

because if that is the situation, Your Honour, then

we would be in a position, subject to Your Honour,

to seek to have the point determined,so far as Your

Honour is concerned,at Your Honour's earliest

convenience and if that involves some delay, if the

Connnonwealth could indicate that thea:ivertisements

of which we make complaint would not go to air until
the matter was determined, then the matter could be

resolved that way.

HIS HONOUR:	Mr Heydon?
MR HEYDON:	Your Honour, the position of the first three

defendants is this: we do not wish to be heard

on the question of whether the advertisements are

lawful or not.

HIS HONOUR:  You are not really - well, you are a respondent

to the summons, but no relief is being sought against

you, interlocutorily?

M2T2/l/JM	7	12/8/88
Reith

MR REYDON:  No, the only relief sought against is re,lief

in the nature of a mandamus. As I was indicating,

we therefore do not wish to be heard on the main

question of legality. Now that Mr Goldberg has

indicated that he is not really pressing for mandamus

against us either, there is probably no matter on

which we would wish to be heard.

The only matter we thought we would wish to

be heard on was the form of any order of mandamus

that was actually granted. On the other matters that

the Court has raised this morning, we do not mind
whether the matter is remitted or stays here and
we do not mind whether the matter is determined today,

or on some other day.

HIS HONOUR:  Thank you. Mr Solicitor?

MR GRIFFITH:  Your Honour, firstly as to the mandamus

proceedings, we see no effect in content in them,

Your Honour, because even if my learned friend was
right on the point of construction of the Act, we would

submit that it was still for the Electoral

Commissioner and the Electoral Commission to determine

how they should act in the circumstances on the basis

of that construction of the Act. But, certainly,

we would submit, Your Honour, it would not be a

situation that if the view were taken that there

was a phrase, perhaps, in one of the advertisements

that argued it was in contravention, then there

would be an absolute obligation upon the Commissioner

to take proceedings. We would submit that there

would be a discretion, Your Honour, that would repose in

the Commission and the Commissioner in respect of that.

Your Honour, to us the substantive litigation is

the action. As to that, Your Honour, we would not

make an issue of standing of the plaintiff in

respect of the claim for declaration.. We would,

however, Your Honour, in respect of the claim for

Your Honour, that that second matter is not one	the injunction in the action. But it seems to us,
which the Court need pursue because if there were
a declaration made by this Court, Your Honour,
that the text, the phrase or sentence in one of the advertisements would contravene the provisions sub-section (4) then, of course, Your Honour, those advertisements could not be promulgated with those
words in them. So that a declaration would be
sufficient, Your Honour, to resolve that controversy.
One problem my learned friend has, Your Honour, and really in a way it is of his own making, Your Honour,
he has chosen to put before the Court exhibits including
his own opinion, and also the opinion of my learned friend. So, perhaps, Your Honour, I have the advantage in that
I am able to put arguments unburdened by a display of
what my opinion as to them is. But, as we understand,

M2T2/2/JM	8	12/8/88
Reith

Your Honour, the thrust of the exhibits, there are

a few phrases in two of the advertisements - the

numbers have been cut from four to three, Your Honour -

to which my learned friend objects.

HIS HONOUR:  The number has been cut from four to three

what, one - - -

MR GRIFFITH: Advertiserrents - there are only three now there is not

going to be four. So, one of those - - - '

HIS HONOUR:	Which is the one that has been - - -
MR GRIFFITH:	The one that involved old film has been dropped,

Your Honour, No 3.

HIS HONOUR:  Which starts with?

MR GRIFFITH:  "Old film". My learned friend, Your Honour,

has, in effect, displayed his line of argument by

adopting firstly my learned friends', Mr Reydon and

Mr Meagher, line of reasoning to some extent and

then supplanting it with his own reasoning arid displaying

that to the Court as the basis of his application.

But the plaintiff's themselves, Your Honour, do not really identify specifically what one gleans from

reading the material in support is that to which

he complains. Now, as we understand it, Your Honour,

and perhaps - - -

HIS HONOUR:  Do we have to go into this? Really, what I

am seeking to ascertain at the moment, what is the

procedure which we are following; what is the

nature of this application?

MR GRIFFITH:  I am seeking to ascertain what my learned

friend's application is, Your Honour. If I am

right in my apprehension, as I now explain to

Your Honour, we feel, Your Honour, that then it

would probably in the public interest for that

issue to be resolved as a legal issue.

HIS HONOUR:  He appears to be asking me to determine it

on a final basis today.

MR GRIFFITH:  Yes, Your Honour, then the parties will know.

Your Honour, it is a matter of urgency and public

interest in that there is three weeks to go until

the referendum vote is put on September 3.

We would say, Your Honour, the chronology of my

learned friend's material is that the agreed

statement of facts that ):le puts up is .agreed, but not yet perfectly

agreed, and the affidavit, which indicates delay

from at least mid-July, Your Honour, a period of about

four weeks. We now have an application on the eve of

the promulgation of the first advertisement, the

substantial text of which has been in my learned friend's

M2T2/3/JM	9	12/8/88
Reith

hands for a month and my learned friend now effectively,

Your Honour, is choosing to apply directly and not

adopt a line of approach that involves the Commissioner

doing his duty. So, there are problems of delay,

but whether that be treated as water under the bridge,

or not, Your Honour, we see it an urgency, Your Honour,

to resolve as soon as possible what are the legal

ground rules in respect of this issue of any television

or other line of advertisement.

HIS HONOUR:  So, what are you asking me to do?

MR GRIFFITH: Well, Your Honour, we would ask my learned

friend to identify exactly the words and phrases in

the two outstanding advertisements to which he

objects; to indicate that he does not object to the

first advertisement, which we understand that he

does not; to say to Your Honour, "These are the

words and phrases to which we object. These are

the arguments we desire to put to them." And we

think, Your Honour, it is then appropriate for

us to address our argument to those phrases and

for Your Honour to determine the matter.

HIS HONOUR: Finally?

MR GRIFFITH:  Yes. It is in the public interest, Your Honour.

Your alternative - - -

HIS HONOUR:  The one thing you will not have then is an

effective appeal against my decision.	I should point
that out to you.

MR GRIFFITH:	Your Honour, one issue here is time -
HIS HONOUR:	You may not want to appeal, of course, but - - -

MR GRIFFITH: Yes: Your Honour, if one has the words

held to be in contravention of the Act, Your Honour,

well, that would be a basis of consideration and one

words or decide not to have an advertisement at	can then produce an advertisement that has other
all. But, Your Honour, to have a process of
possible appeal running, say, for the week after next, in our submission, would be against the
interest because that would leave only a matter of public
days until the referendum occurs. That is a fixed date and the function of this campaign, Your Honour, is to raise the public consciousness in respect of
the referendum and it seems to us, Your Honour, that
these proceedings have not been taken. That issue of public interest is the issue which should be
paramount. If Your Honour were finally to determine the
matter there would in theory be a right of appeal
because Your Honour would not be sitting as a
Court of Disputed Returns. My learned friend is not
applying to that court.; he is applying to the
High Court. But, Your Honour, as a matter of reality,

M2T2/4/JM	10	12/8/88
Reith

it would be a matter for consideration within the time

of a view, say, contrary to Your Honour I s view, would have any	frame as to whether or not even a vindication on appeal,
to be put before the public between now and 3 September.
relevance to the democratic issue of what material was take any points on standing. And, Your Honour, we
see that there would be a useful function in following
that course because if there is not my learned friend has indicated he will proceed with an application for an interlocutory injunction. As to that, Your Honour, we
would say that there is a complete disablement to that
because of my learned friend's delay and, in any event,
we would say that it was an overriding public interest
that there should be no interlocutory injunction. And
we would say, further, Your Honour, my learned friend is not offering any undertaking and if he were he - - -

MR GOLDBERG:	I have not been asked.
MR GRIFFITH:	If he were, Your Honour, we would say it could

have no content because the effect of the order he asks for is to stop us continuing this campaign to increase the public awareness as to the opportunity

they have to vote"yes"or'ho" on 3 September and that

is something, Your Honour, which could not be compensated

for by any form of undertaking my learned friend may

offer if he has instructions to do so.

and practically, we see the issue of 11should there be an So, Your Honour, looking at the matter realistically

way, Your Honour, the issue is 'has there been	interlocutory injunctiorl'as a dead-end issue and in a
disabling delay!' and issue which, although, we would say
on this material, one which constitutes an appeal case,
something that in the public interest would be best
avoided by a clear reference point fixed by the September 3 date and in that context we do feel that
there is a strong public interest in the issue itself being resolved. And if Your Honour was able to determine
that matter, then each party would have a basis for
clear action between now and September 3.

HIS HONOUR: Well, perhaps we had better have Mr Goldberg

present his argument, I think, Mr Solicitor.

MR GOLDBERG:  Your Honour, I should say right at the outset

I have instructions to give the usual undertaking

as to damages but it must be apparent from what I have

said earlier that we are anxious to have the point

disposed of as soon as possible. Your Honour, we come in

the public interest. To that extent my learned friend,

the Solicitor-General, and myself are at idem because

we say it is in the public interest that the advertisements

be done according to law and it is no answer to say it is

in the public interest that public consciousness be
raised if it be raised in a way that is not allowed, and

that is the point that we want determined.

M2T2/5/JM	11	12/8/88
Reith

So, Your Honour, in a sense I am in Your Honour's

hands. The interlocutory injunction is not a dead end.

If we cannot have the matter determined today, the government says that it will undertake not to put the

offending advertisements to air until the point is

determined. Well then, Your Honour, they can still go
on with their public consciousness raising campaign.

But we are ready, subject to my learned friends and

finalizing the agreed statement of facts,to have the

matter commence as soon as possible.

So far as my learned friend says about the fact

that I have committed myself to writing and therefore

my argument is set in concrete, I make no apologies

about a written opinion, Your Honour.

HIS HONOUR:  I do not think we need bother about that,

Mr Goldberg. Why do we not get down to the issue of

what you say about these advertisements?

MR GOLDBERG: Well, Your Honour, I would need to see - the one

thing I have not done is seen the videos and I would

wish to see those before I finally commit myself. I

believe I can but out of an abundance of caution I would

wish to see the videos because at the moment I have only

seen the transcript of the - - - HIS HONOUR: Well, do you want to see them before I see them

or do we see them together?

MR GOLDBERG:	I am happy to see them together, Your Honour.
HIS HONOUR:	Very well, let us see them.
MR GOLDBERG:	I do not mind my learned friend seeing them

either, Your Honour.

MR GRIFFITH:  Your Honour, perhaps if I could assist Your Honour

as to that. My learned friend has exhibited the original

proposed text upon which he gave advice and also the

final text which will be the words spoken in the

advertisement. Your Honour, I have a version of the

final text which highlights the differences from those

which were the original text and if I could hand that

to Your Honour.

HIS HONOUR:	Yes, thank you, Mr Solicitor.
MR GRIFFITH:	What I hand Your Honour should be the words spoken.
HIS HONOUR:	And these are the three that remain?

MR GRIFFITH: Yes, Your Honour.

M2T2/6/PLC	12
Reith
HIS HONOUR:	And the old film is the close-up of the actual

CONSTITUTION document, is it?

MR GRIFFITH: One that looks like it, Your Honour. I think

the original is in a tower at Westminster.

HIS HONOUR:  Very well.

Mr Solicitor, while that is getting to the next one - the highlighted pieces.are

added pieces, are they?

MR GRIFFITH: Yes, they were not in the original text upon which

the advices - - - - - -

HIS HONOUR:  They are now on the film and they are in the

text you handed up, yes.

MR GOLDBERG:  I ought to say, Your Honour, there is nothing

in those amendment that I have seen to date that

will affect my argument one way or the other.

In other words, the alterations will not be relevant

to the points I believe I will be making.

HIS HONOUR:  Yes, Mr Goldberg.

MR GOLDBERG: If Your Honour pleases. I take it, Your Honour,

that what the Solicitor-General wishes me to
do now is to identify those parts of the advertisements
which I submit - in respect of which -I will
have to put this is a slightly convoluted way -
expenditure in relation to advertisements that

bear those matters is a breach of the section.

HIS HONOUR:	The offending parts, yes.
MR GOLDBERG:	And if I can summarize it, Your Honour, if

I may for the ease of analysis, just identify

the offending pieces of the advertisements as

relating to the subsection (4). In the second

advertisement, Your Honour -

HIS HONOUR:  There is nothing in the first advertisement?

MR GOLDBERG:  Nothing in the first, Your Honour. I should

say this, Your Honour, I can identify these matters

immediately. In the light of seeing the video

I would wish to take instructions on two matters

which I can do very shortly. It is something

I would wish to take instructions on. But other

than that, Your Honour, if Your Honour goes to

the second advertisement - - -

HIS HONOUR:	That is the Sir Henry Parkes advertisement?
MR GOLDBERG:	That is the one that starts on Sir Henry

Parkes, yes, Your Honour. That part of the

M2T3/l/ND	13
Reith

advertisement where Mr Luck - he is the

years ago 11 - I have just got the wrong advertisement. commentator, Your Honour - starts 11 Almost two

HIS HONOUR:  It is 11 0ver two years ago".

MR GOLDBERG:  I am sorry. Yes, Your Honour, I read the

wrong one.

Over two years ago, the Constitutional

Commission representing a cross-section

of Australians began a review.

They held public meetings in each state and accepted over 4000 submissions.

Their recommendations form the basis for

3 of the 4 proposed amendments on which

you'll be asked to say yes or no in the

September 3 Referendum.

HIS HONOUR:  Yes, you object to all of that?

MR GOLDBERG:  Yes, Your Honour. And in the fourth

advertisement, Your Honour, which is the one

which starts with Mr Luck outside the old parliament

house and then there is a dissolve to him standing

in front of the new parliament house. The words:

Just as our Federal Parliament has outgrown

its old home and moved to this magnificent

new Parliament House, you have the
opportunity on September 3 to review our

CONSTITUTION.

Those words, Your Honour, taken in conjunction

with what one sees visually.

HIS HONOUR:  And what one sees visually is the old parliament

house and the new parliament house?

MR GOLDBERG: Exactly, taken in conjunction with those

words. Your Honour, subject to seeking instructions

on one or two other matters, those are those

parts of the advertisements to which objection

is made.

HIS HONOUR:  Do you want to seek instructions now?

MR GOLDBERG: If it is not inconvenient, Your Honour.

HIS HONOUR: And you want me to retire while you do that?

MR GOLDBERG:  Your Honour, I realize the learned Solicitor

wishes to, as it were, brick me in and I am quite

happy to be bricked in but I wish to do so just

M2T3/2/ND	14
Reith

having seen the videos to make sure. If

Your Honour could adjourn for say 10 minutes.

HIS HONOUR:  I will retire. It will not take you as long

as that, will it?

MR GOLDBERG:  I doubt it, Your Honour, I am just being

cautious.

HIS HONOUR:	You can summon me back when you want me.
MR GOLDBERG:	Thank you, Your Honour.

AT 10.21 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.40 AM:

HIS HONOUR:	Yes, Mr Goldberg.
MR GOLDBERG:	Your Honour, I apologize for the 10 minutes being a barrister's 10 minutes but as a result
of that we have agreed on the statement of facts - the agreed statement of facts which is now going back to a word processor to be updated. It should
be back fairly shortly.  I do not seek to rely
on any further aspects of the advertisements,
Your Honour, other than those I indicated. Your Honour may appreciate that I have been
consistent with the written advice that was in the material and our position has not changed.
HIS HONOUR:	What, you just rely on the arguments that

are contained in your written advice?

MR GOLDBERG:  Yes, Your Honour.

HIS HONOUR:  And you do not wish to add anything?

MR GOLDBERG: If we are now at the point, Your Honour -

may I take it then that we have reached this

point that Your Honour will now embark on the

final hearing of the substantive question and

there are no procedural hurdles or barriers to

that which are now outstanding. I say that,

not so much for Your Honour, of course, but for

my learned friends because that is my understanding

now.

HIS HONOUR:  That is my understanding, that I am to treat

this hearing as the final hearing and that is

by consent except that so far as Mr Reydon is

M2T3/3/ND	15
Reith

concerned. I do not require his consent if

he does not give it. That is correct, is it

not, Mr Solicitor?

MR GRIFFITH:	Yes, Your Honour.
HIS HONOUR:	Yes, very well.
MR GOLDBERG:	Unless there be any misunderstanding, if

Your Honour is against, of course, that is the

end of the matter but if Your Honour is disposed

to accept our arguments and makes a declaration

accordingly then there will be no need for an

injunction as I understand it from the learned

Solicitor.

HIS HONOUR:	That is as I understand it, yes.
MR GOLDBERG:	Your Honour, might I then take Your Honour

to those parts of the statute which are relevant

and indicate the scheme of the legislation to

Your Honour. If Your Honour has before you the

REFERENDUM(MACHINERY PROVISIONS)ACT?	Has
Your Honour got the statute there?

HIS HONOUR:  Yes.

MR GOLDBERG: It is section 11, Your Honour, to which I

wish to go first. We need to identify - what

leads up to the referendum on September 3 is

this - and I do not need to trouble Your Honour

with the procedural parts in Part II of the statute.

Section ll(l)(a) provides that:

Where -

(a) a proposed law for the alteration of
the CONSTITUTION, being a proposed law
passed by an absolute majority of both

Houses of the Parliament, is to be

submitted to the electors; and .....

the Electoral Commissioner -

and I will speak loosely for the moment,

Your Honour - receives an argument in favour

of the proposed law authorized by those members of Parliament who voted for it and want to give

him such an argument and also a similar argument

from those members of Parliament who voted against

the proposed law, what the Electoral Commissioner

then is obliged to do, Your Honour, unless the

Minister tells him that the referendum is not

to be held, has got to print and post to each

elector -

M2T3/4/ND	16
Reith

a pamphlet containing the arguments

together with a statement showing the

textual alterations and additions -

et cetera.

Your Honour, it appears, on a proper

construction of section 11(1) that the pamphlet

which contains the arguments, that is a reference

to the arguments found in paragrapra (b)(i) and

(ii) - - -

HIS HONOUR:  What ip the position here? This is under

subsection (1) and not subsection (2), is it

not? In the case of each of the proposed laws they passed through both Houses of Parliament?

(Continued on page 18)

M2T3/5/ND	17
Reith
MR GOLDBERG:	Yes, Your Honour. For the purposes of this

argument, though, Your Honour, in the submissions

we are going to make today, it would not have
mattered whether it was subsection (1) or subsection (2).

And if I can then show Your Honours the pamphlet which is exhibit 2, and I am holding that up.

HIS HONOUR:	Yes.
MR GOLDBERG:	I think most of us, Your Honour, have probably

received that over the last week or so, in the mail

from the Electoral Commission. It has gone to

every elector. Now, I want to come back to that in

a moment, Your Honour, but just identify the other

subsection which is relevant for the purpose of

the proceedings before you, and it is subsection (4):

The Commonwealth shall nort expend money

in respect of the presentation of the argument

in favour of, or the argument against, a

proposed law except in relation to -

and I will paraphrase it, Your Honour, (a) the

distribution of this pamphlet, (b) the provision by

the Electoral Commision of other information relating
to the proposed law, or (c) the salaries and allowances
of members of Parliament, their staff and public
servants. Now, if Your H:mour has had the opportunity of
reading the exhibits, Your lbnour has had the opportunity

to read Messrs Meagher and Heydon's opinion, and

Your lbnour has had the opportunity of reading the

opinion of Mr Karkar and myself, and Your Honour will

apreciate what the issues are from those. But may I

now take Your Honour through this pamphlet very

briefly to identify the structure of it.

Your Honour, the front sheet, "Yes or No Referendum·

that is Electoral Commission material. If Your Honour

looks at page 2 on the inside of the front cover,

Your Honour sees the sample ballot paper, again which

Electoral Commission material which identifies for	is Electoral Commission material. Page 3 again is
electors what the referendum is about; what the CONSTITUTION is; what the four proposed laws are and what the contents of this document are? Your Honour will
see in the top right-hand corner of page 3:

The arguments for and against the proposed

changes have been written by members of both

Houses of Parliament who either favour or

oppose the changes. I am required by law to

send these arguments to you.

That is a reference, Your Honour, to section 11(1)

to which I have already referred. If Your Honour

then goes to page 4, Your Honour will see what is

called, "The Yes Case Summary," and this is a summary

of the "yes" case in relation to the four proposed

laws, although they are dealt with separately shortly

M2T4/l/VH	18	12/8/88
Reith

after, and Your Honour will see on the right is a

summary of the "no 11 case.

HIS HONOUR:	Who determines the layout of each case?
MR GOLDBERG:	I assume the Electoral Commission, but my

learned friend, Mr Reydon, would be able to tell

Your Honour that. I assume we have no role in it;

by "we" I mean - the members of Parliament on

more than 2000 words. either side just send their arguments which are no

MR REYDON:  If the Court is interested, the pamphlet's pages

which have "Authorized by the Australian Electoral

Commission," on the bottom are laid out by the

Australian Electoral Commission. So, for example,

pages 2 and 3, and then, for example, page 4, is laid out by the proponent of the "yes" case, and

5 is laid by the proponents of the "no" case,

in camera-ready form.

HIS HONOUR:	Yes.
MR GOLDBERG:	Your Honour, we are concerned in these proceedings,

of course, with the "yes" case, because it is

alleged that there are part of the argument in the

"yes" case in the advertisements. But if Your Honour

looks at page 4 - has Your Honour got only one copy

of the exhibit? I was going to hand up to

Your Honour a second which Your Honour may wish to

annotate and mark. I will just make sure it is not

marked and that can be a copy for Your Honour's own needs

because I will be identifying certain passages

in the course of this submission.

HIS HONOUR:	Yes.
MR GOLDBERG:	Your Honour, the "yes" case on page 4 says:
Vote yes for fewer elections, for fair elections, to recognize local governmmt, to guarantee people's rights.

It then sets out what Your Honour will appreciate,

that this is the argument provided for in section 11(1).

If Your Honour glances down that - I will not read it

all, but I will identify those parts upon which we

rely. It is in the second column, the second paragraph

that says:

They -

and that is obviously a reference to the proposals

are the results of an extensive process of

consultation with ordinary Australians.

And that is a passage upon which I will be relying,

Your Honour. It then goes on to say:

M2T4/2/VH	19	12/8/88
Reith

They reflect the concerns of ordinary Australians.

In a few words what they will mean is, fewer

elections, fair elections, the recognition of

local government and rights for the people.

Then at the bottom, Your Honour:

At last there is a chance to change the

CONSTITUTION for the benefit of people and not politicians.

And again, Your Honour, that is a passage upon which

we wish to rely. Now Your Honour then sees on the

right-hand side on page 5, a summary of the "no" case

and if Your Honour then goes through from page 6 on,

Your Honour will see the argument in favour of the

first question, the first proposed law; 6 and 7,

7 and 8, the "no" case in relation to the first

question, and so on. Now, there is nothing in those

pages upon which we wish to rely and Your Honour will

appreciate from having read the opinion in the

exhibit that those passages to which I have referred

are the passages which were referred to there.

Now, Your Honour, what we say in relation to

the advertisements is this: if Your Honour could
put it in front of you - and I think it is exhibit 10.

HIS HONOUR:  Which is this?

MR GOLDBERG: Exhibit Rl0, Your Honour.

HIS HONOUR:	What is that?
MR GOLDBERG:	I am sorry, that is the latest or the revised

second advertisement, Sir Henry Parkes one, Your Honour.

HIS HONOUR:  Would it be convenient if I proceeded with the

document Mr Solicitor handed up?

MR GOLDBERG:	Yes, I am happy for that to be dealt with.
MR GRIFFITH:	It may assist Your Honour if I give you a copy of the original which has a note of the alterations,
as it was.  There is a change of ex~ression from
'which you will be asked to decide upon' to'yes or
no!' That is put in pencil to show things that were
left out, if read with the final  one, Your Honour.

HIS HONOUR:  Thank you. Yes. Well now, you do not object to

the first advertisement, as a rule?

MR GOLDBERG:	Do not object to?
HIS HONOUR:	The first advertisement.

MR GOLDBERG: The first advertisement? No, Your Honour. If Your Honour has got the transcript open at what I

call exhibit 2, the Sir Henry Parkes one -

M2T4/3/VH	20	12/8/88
Reith

HIS HONOUR:	Yes.
MR GOLDBERG:	If you look at advertisement 2, over on the

second page, the audio which says:

Over two years ago, the Constitutional Commission•

representing a cross-section of Australians

began a review.

They held public meetings in each state and

accepted over 4000 - - -

HIS HONOUR:  You do not need to read it. We have read that

already once.

MR GOLDBERG:  No. Well, Your Honour, the effect of that, in

our submission, is part of the argument in favour of
three of the proposed laws and in particular that
part of the argument - and when I use the word,

"the argument," Your Honour, I am referring to the

pamphlet - which is on page 4 of the pamphlet

which says:

They are the result of an extensive process of consultation with ordinary Australians.

where it opens with Mr Luck standing in front of

If I can then take Your Honour to advertisement

the old parliament house and then standing in

front of the - - -

HIS HONOUR:  The first paragraph of the audio that you say

offends the section there.

MR GOLDBERG:	Yes, Your Honour, this is one where we take in. cotjunction - the opening visual presentation of
advertisement 4 - that is, changing from
the old parliament house to the new parliament house,
paragraph:
taken in conjunction with the words in that first

Just as our Federal Parliament has outgrown

..... you have the opportunity - - -

Now, Your Honour, we submit that that is also a

part of the argument in favour of the proposed laws.

That is, that the Australian people have outgrown

the CONSTITUTION and it is time to change it. In

effect what that is saying is, because it was

appropriate to leave the old parliament house and
to move to the new parliament house, so it is
appropriate to move from the present CONSTITUTION

to a new CONSTITUTION and in relation to that,

Your Honour, which is - if I can put it this way -

an overriding cover or claim in relation to the

referendum-the need for the referendum.

M2T4/4/VH	21	12/8/88
Reith

If Your Honour looks at the bottom of page 4

of the pamphlet, Your Honour sees the words:

At last there is a chance to change the

CONSTITUTION for the benefit of people

and not politicians.

Now, Your Honour, in substance, what I have now done

is to sunnnarize what was in that part of the written

opinion, which is exhibit R4 before Your Honour,•

paragraph 15 of it. We submit that that then offends

section 11(4) of the Act having regard to what is

the proper interpretation of section 11(4) and I

have set that out in detail in the opinion,

Your Honour. If Your Honour has had the opportunity

of reading it and understanding it - - -

HIS HONOUR: Well, I have, obviously.

MR GOLDBERG: Well, that is it, Your Honour.

HIS HONOUR:	But you do not wish to add anything~
MR GOLDBERG:	I do not wish to add anything to it.

HIS HONOUR:  Very well. Thank you, Mr Goldberg. You do not

wish to say anything, Mr Reydon?

MR REYDON:	No, Your Honour.
HIS HONOUR:	Mr Solicitor?
MR GRIFFITH:	Your Honour, it is a pity my learned friend is

not able to rely upon his opinion of authority,

but it is difficult, of course, to argue its effects.

Your Honour, it seems we are in agreement that the

argument referred to in subsection (4) is the argument as is referred to and defined in the previous three subsections.

(Continued on page 23)

M2T4/5/VH	22	12/8/88
Reith

HIS HONOUR: What struck IIE is that apparently_ both parties are prepared to

adopt a somewhat narrow interpretation of the words,

"the argument" as referring to "the argument"

which, if I may put it that way, is contained in

the pamphlet of the argument.

MR GRIFFITH:  Your Honour, we do not think it is surprising

because we think that is right, in our submission,

Your Honour.

HIS HONOUR:  Everyone seems to be in agreement about that.

MR GRIFFITH: Well, Your Honour, the words are so clear that that,

we would submit, is a reasonable approach Your Honour,

in our submission.

HIS HONOUR:	I had thought they were not as clear as all that.
MR GRIFFITH:	Or, Your Honour has not yet heard argument

to the contrary. But, Your Honour, one could say,

I suppose, that either that is the m:arring or it is not.

Now, Your Honour, then one says, "Well, what is

there to indicate that this is the meaning?"and the presentation of the argument in favour of,
then perhaps, "What is there to indicate that is not
the meaning?" If looking at the positive side,

which refers back to, for example, ll(l)(b)(i),

an argument in favour of the proposed law and then

the reversal or the argument against the proposed

law, - that is the corresponding paragraph (ii).

HIS HONOUR:  I suppose in a sense if the Commonwealth sought

to put additional argument in favour, that could

be said to be in respect of the presentation of

the argument contained in the pamphlet?

MR GRIFFITH: That could be said, does Your Honour say?

HIS HONOUR:  Yes.

MR GRIFFITH:  Well, Your Honour, we say the inquiry is

as whether or not,Your Honour,it is something which

can be characterized as the argument. Now,

Your Honour, "in respect of", of course, is not

a phrase attached to the argument, it is an

expression attached to the presentation.

HIS HONOUR:	Yes.
MR GRIFFITH:	So it refers to the aspect of presentation.

So if one says in respect of, in effect, words

of extension, Your Honour, it extends the meaning,

we would submit, of presentation not the meaning

of argument. But one still has to come down to the meaning of the noun and the noun is not the presentation of the argument, Your Honour, the noun

is the argument in favour of, or the argument against.

M2TS/l/MB	12/8/88
Reith	23

Your Honour, we submit, of course, that that is a

reference to either an argument in favour of or

an argument against, it is not a reference to saying,
"Well, there is an issue which has arisen which

you could vote for or against." That would not,

Your Honour,· we would submit, be something

which could be called in respect of the argument

in favour of or the argument against. Perhaps, that

is confirmed, Your Honour, if one goes to page 5

of the pamphlet, the sunnnary of the "no" case:
one sees, Your Honour, there that the proponents
of the "no" case in the settled case have said

in their case:

The case for and against each question

is set out clearly in the following pages.

They show why you should vote no to

all four questions.

Your Honour, we would say that if one says, "Well,

there is an issue here to be determined, there

is arguments for and against it, it is up to you

as to whether you vote for or against", that could

not, in our submission, be characterized, something

in respect of the presentation of the argument in

favour of, nor in respect of the presentation

of the argument against. It is in respect of the

presentation to the fact that you have to make up

your mind about the argument for or against, which

is a separate matter.

Your Honour, one can, we submit, see a ready

distinction between that, that it is clear in our

submission, Your Honour, that subsection (4) is

directed to material which goes to promote something
and the something is either the case in respect
of the presentation of the argument in favour of

or a case in respect of the argument against the

proposed law. Now for subsection (4) to attach,

Your Honour, in our submission, there has to be

a proposed law and one finds one has a proposed law

within the meaning of paragraph (a) when it has
been passed by an absolute majority of both Houses
and is to be submitted to the electors or, in
subsection (2), where it has been passed by one

House and the requisite procedure under the

CONSTITUTION, as is referred to in

subsection (2~Cb), have been complied with.

Now, obviously, Your Honour, at some time, once

the laws have been passed by each House one will

come to a point that one has a proposed law. Whatever

time that is, Your Honour, that is now passed because

action has been taken to take matters to

a referendum. So, Your Honour, we are agreed

that there is a proposed law. Next, we submit,

Your Honour, it is necessary to determine what

M2TS/2/MB	24	12/8/88
Reith

is the reference in subsection (4) to the argument

in favour of the proposed law? Well, as we just

indicated to Your Honour, our submission is that

that in the ordinary meaning of subsection (4)

attached to what proceeds it in section 11 is a

reference to the particular defined argument

either in favour of - under subsection (l)(b)(i)

and (Z)(b)(i) - or the argument against proposed

law in the corresponding paragraph (ii) of those

paragraphs of those sections.

Now, Your Honour, in subsection (3) one finds

that those arguments so identified are paraphrased

in paragraph (a) by reference to the arguments in

relation to all the proposed laws. Then paragraph (b)

refers to the argument in favour of proposed law

and then, Your Honour, we have a reference to the arguments against the proposed law. So once more

it is obviously the same expression referring to

this no more than 2000 words for each proposed law

with the provision enabling and averaging out of

the case. Here, Your Honour, one can see that that
flexibility has enabled there to be a sutmnary case
for each of the "yes" on page 4 and the "no" on page 5

and then the various cases for each question put

out.

We have not counted the "no" case number of

words, Your Honour, but it would seem apparent

that the "yes" case does not use the available

8000 words and if one could, for example, rely

upon the taxi-driver who brought me in today who

did not know we had a CONSTITUTION, Your Honour, one could perhaps say, 11 Well, possibly electors

will read some of these words, r.ossibly a few

electors will read all of them. ' but there is the

entitlement to have 8000 words in total which

may or may not be exercised.

Your Honour, there is no mechanism provided

Act for how those who want to settle the argument

should settle it, but, in fact, Your Honour, a practical way

mechanism has been devised with, of course, the

active participation of the Electoral Cotmnission

and the acquiescence of those of the Parliament

who have voted for and those who have voted against.

So that without a statutory mechanism, Your Honour,

there is no issue that the requirements of

section 11 ( 1) (b) have been sat_isfied by those

who voted for the proposed law and desiring .•...

the argument having agreed and those of th~ contrary

similarly having agreed.

HIS HONOUR:  It is a very narrow view of subsection(4)though,

is it not? One would have thought that at least the

spirit of the subsection was that the Cotmnonwealth
should restrict its expenditure in putting a case

to putting forward the pamphlet?

MZTS/3/MB	25	12/8/88
Reith

MR GRIFFITH:	Well, Your Honour, why?
HIS HONOUR:	Because the words "the argument" in favour

or "the argument" against can on the one hand

refer to the argument which is submitted under

subsection (1) or it can mean "the argument",

without giving it any content, in favour or "the

argument" against, giving it a broad meaning;

you can give it either. What it seems to be saying

is simply that this is the expenditure which should

be expended for this purpose and no more. But

no one is putting that proposition so perhaps I

have made the observation and that is that. That

is in accordance with - I am now allowed to look

at Hansard - what I read in Hansard, of course.

MR GRIFFITH: 

Your Honour, I am not sure that my learned

friend intended to take you to Hansard, Your Honour -
well, he was reserving his decision as to whether
he was going to refer to it.

HIS HONOUR: 

But it is not of great assistance -

MR GRIFFITH: 

Your Honour, now he has can I hand Your Honour

another part of Hansard, 7 December 1983, when

this amendment was first foreshadowed by - - -

HIS HONOUR:  Just while we are developing this a little,

if, for instance, the Commonwealth sought to have

a series of advertisements putting additional
argumentswhich are not the arguments contained

in the pamphlet, additional and cogent arguments

as to why there should be a "yes" vote, it would

seem to at least defend the spirit of subsection (4),

would it not, but you say it can do it?

MR GRIFFITH:  The question is what is its spirit, Your Honour,

in that Your Honour's proposition is something

that any government can do.

HIS HONOUR:  Well, just answer the question, you say it could

do that, do you?

MR GRIFFITH:  Yes, I do, our submission is it: .could,

Your Honour. That is the ordinary operation of democratic process, Your Honour, that one side may

put whatever arguments it might chose, the other

can put whatever arguments it may chose against.

HIS HONOUR:  Why would paragraph (b) be necessary at all

if that is right?

MR GRIFFITH:	Well, Your Honour, because the function of the Electoral Commission, Your Honour, in that it
is able to publish this case in this form. But
to be quite specific, Your Honour, it is stated
exactly in the Hansard reference Your Honour refers

M2TS/4/MB	26	12/8/88
Reith

to as to why that is there and that is because

of section 7(l)(c) of the COMMONWEALTH ELECTORAL

ACT which says the functions of the Conunission

are:

to education and information programs and by other

promote public awareness of electoral and

means -

and electoral matters includes referendums.

HIS HONOUR:  Well, that is right, is it not? Well, that

has got power but why do you need an exception.	If
it is providing other information then it is not

the argument in favour or the argument against and

you do not (b).

MR GRIFFITH:  Your Honour, the Electoral Conunission, for

example, might want to publish a sununary or itself

have television advertisements. It did not present
the case, which is this case of 8000 words, but just
to present some cogent parts of each case, for

example, Your Honour, to increase public awareness.

HIS HONOUR: Well, that would not be other information?

MR GRIFFITH; That would be other information. Your Honour,

if it would be other information then the Electoral

Conunission is able to do that. It is able to, itself,

Your Honour, present versions of the case for or
versions for the case against. It is able to

translate it, of course, into other languages.

HIS HONOUR:	Precisely.
MR GRIFFITH:	It has a specific power now, Your Honour,

under section llAA of the Act to make versions

of the material for those who are visually impaired.

HIS HONOUR:	Yes.
MR GRIFFITH:	So that, Your Honour, the Electoral Conunission

has this general capacity to do things in respect

of the promotion of the referendum and what

paragraph (b) says it is not limited to merely
preparing, printing and distributing this pamphlet.

It could have a 60-second advertisement raising

public consciousness. We would submit, Your Honour,

it could have one, for example, in the form of

the first advertisement to which my learned friend

does not object. We would say, Your Honour, that

has nothing to do with the presentation of the

argument in favour of or the argument against.

My learned friend concedes that. It could if it

wanted to, Your Honour, uplift, for example, the text

of the vote "yes" sununary on page 4 and the text

M2T5/5/MB	27	12/8/88
Reith

of the vote "no" summary on page 5, and either publish

it in the press or put it on the television and

say, "We invite you to read the rest of this in

the pamphlet which we have prepared, printed and

distributed under paragraph (a)." That, Your Honour,

is something which would not otherwise be specifically

authorized without paragraph (b), or argued, we say.

So that to put the matter beyond doubt, Your Honour,

one has that provision that the Electoral Commission

can do things in respect of that which my learned

friend would seek to characterize as something

in respect of the presentation, the argument in

favour. Your Honour, perhaps the clearest example

is to say if the Commission presented this or that

or that together and said, "You should look at this

and then go further and read all the pamphlet, what's

there", we would say, Your Honour, that would

be characterized, in our submission, is in respect

of the presentation of the argument in favour and

the argument against and that paragraph (b) is

very useful because it authorizes, we would say,

in the obvious public interest,	the Electoral
Commission to do that.	So there is a content there.

Similarly, Your Honour, to deal with the point my learned friend raises, there is content

in paragraph (c) to make it clear that members of

Parliament who presumably are going to be there pushing the issues in respect of the presentation, the argument in favour or the argument against,

either as litigants in person in this Court or on

some public platform, Your Honour, they are

authorized in that pursuit to have their salaries paid and to have their assistants and secretaries with them.

(Continued on page 29 )

M2TS/6/MB	28	12/8/88
Reith
MR GRIFFITH·(continuing):	Your Honour, if	there were

a wider meaning of the sort that Your Honour

refers to as-a possibility, all that paragraph (c)

not authorize the plaintiff to get a plane from	authorizes is the payment of salaries. It would in respect of the presentation of the argument
against the referendum, or to go to Perth - if
that is why he went to Perth to present the argument
against it. So that the fact that one has these
exceptions to what we say is a limited prohibition,
Your Honour, does not in itself, in our submission,
give any indication of a broader meaning of the
limitation.

Your Honour, it is possible that those that

put forward this amendment had in mind some wider

operation but, in our submission, that is not

the point of inquiry before Your Honour.

HIS HONOUR:  No one is putting the argument, Mr Solicitor,

and it would be an aberration of my own to proceed

on that basis.

MR GRIFFITH: If the Court please. Unless my learned friend

is excited, Your Honour, in reply to think that

it is worth putting it.

HIS HONOUR:  I think we can proceed with your argument

on the basis that you put it.

MR GRIFFITH:  Your Honour, our basic approach, in our submission,

is to say, well, the ordinary democratic process

in an issue such as this, which might be regarded

as a political issue of debate, is to expect
both sides to go hammer and tongs in the political

debate and inasmuch as the resources of the

government are available to one side, ordinarily

they would be available and if there is moneys

appropriated which may be spent without further

appropriation, Your Honour, they may be used

for the furtherance of government policy.

Of course, by definition, oppositions,

Your Honour, oppose things and do not have access

to the same resources but whatever resources

they have they can go hammer and tongs - including
briefing counsel to apply before the Court.

That is the nature of the democratic process.

We submit, Your Honour, the inquiry is to

what extent does subsection (4) trespass upon

that area where otherwise the ordinary democratic

process of responsible government is to permit

a free range of capacity to influence opinion.

So that it becomes a matter of identifying a

limitation which otherwise is only restricted by

the question of having available moneys, resources

and inclinations and platform and opportunity

M2T6/l/SDL	29	12/8/88
Reith

to present a case which, of course, we are all agreed,

Your Honour, ultimately has to be determined

"yes" or ''no" at the referendum on 3 September.

Your Honour, as to that, we submit the mechanism,

as is referred to in subsection (4), is to say,

firstly, one identifies the subject-matter to

which subsection (4) attaches, namely this document

which includes the argument in favour of - we

are not here concerned with the argument against -

and then to impose a limitation on the Commonwealth,

saying it shall not expend money in respect

of the presentation of this argument.

We would submit that, firstly, it must follow

that that contains no prohibition upon the presentation

of information concerning the issue that there

is going to be a referendum and that it is necessary

to vote - there is compulsory voting on 3 September -

and that for that matter it is necessary to

vote one way or the other. That is entirely

neutral, Your Honour. We would go further and

submit, Your Honour, that the prohibition is
one in respect of the presentation of the argument
as is defined in subsection (4) and we would
say the notion of presentation involves some

action of presenting to notice or mental view setting forth a statement and if I could just

hand Your Honour, for convenience, the extract

from the Shorter Oxford Dictionary.

HIS HONOUR:	In short,you say that this material is only intended to raise public awareness and does not
relate to the presentation of the argument one
way or the other?

MR GRIFFITH: Yes, but even if it did, Your Honour, we

would go further and submit that that is no objection;

that one has to have a further inquiry and say,

"Is it putting not an argument in favour of the

can be characterized as respect of the presentation	referendum but is it presenting something which
of the argument so defined, namely the argument
included in this pamphlet"?

HIS HONOUR: It is put against you but what is said strengthens

the argument that is contained on page 4 of the pamphlet, as I understand Mr Goldberg's

submissions. But you say that is not so?

MR GRIFFITH:  Yes, we say that is not so, firstly, but,

Your Honour, if one has four arguments or ten arguments as to why one-should vote "yea'.', if one has put one of them in the pamphlet and then

there are another three that are not there, of

course the other three can be said to strengthen

the fourth because that means you then have four

arguments. But, in our submission - - -

M2T6/2/SDL	30	12/8/88
Reith

HIS HONOUR:  Perhaps "strengthen" was the wrong word:

"emphasizes".

MR GRIFFITH:  Your Honour, we submit that it is not a matter of

characterization of emphasis; it is a question,

Your Honour, of whether or not it fairly can

be said in respect of the presentation of that

argument.	Not that it can be said to be in respect
of a matter which might be touched upon.	However,
incidentally, Your Honour - - -

HIS HONOUR:  If you were merely to repeat the argument

would-that amount to doing something in respect

of the presentation of the argument?

MR GRIFFITH: If you were to repeat it either verbatim,

Your Honour, or substantially in the same form,

yes, it would be a matter of characterization.

We concede that it would be, Your Honour.

For example, here, if one turned to question 1

where one has the "yes'' vote in a fairly sunnnary

form, but if one were to repeat these paragraphs

or possibly even one of them, Your Honour, if

this is what we are doing, will say exactly the

same thing though perhaps in slightly different

words to the extent that one would characterize

it as a plagiarism or merely a restatement of

exactly the same thing - then that would be

an issue of characterization.

But it is significant here, Your Honour,

that my learned friend does not rely upon one

word of any of the four cases for "yes". He

is only relying upon, Your Honour, two parts

of the summary and those, Your Honour, are of

the most general nature of platitude.	The bottom
box:

At last there is a chance to change

the CONSTITUTION for the benefit of people

and not politicians -

in our submission, Your Honour, is not even

ammenable to be characterized as an argument

at all; certainly not an argument in respect

of the presentation of the argument in favour

as settled here. It is motherhood statement,

Your Honour; it is the sort of thing a politician

would say and we would not even notice him saying

it, in our submission.

HIS HONOUR:  An argument does not have to be rational or cogent to be an argument. I hear lots

of arguments from day to day - - -

MR GRIFFITH:  Perhaps it is preferably not to in this context,

Your Honour. It has to be an argument,

Your Honour. What are you saying when, "At

M2T6/3/SDL	12/8/88
Reith	31

last there is a chance to change the CONSTITUTION

for the benefit of the people and not politicians"?

That is the same as what is said on the other

side - there is a case for and against each

question, you have to vote. One side says "No",

one says "Yes", but if one says, "You have to

make up your mind to vote; you have a chance

to change the CONSTITUTION", we submit, Your Honour,

that is not something which is ammenable to

be characterized,in the way my learned friend

says, 'that is going directly to this issue of

being in respect of the present case in the

argument.

Your Honour, that is the deal with the

third advertisement; the one of the parliamentary

buildings, the old one and the new one.

My learned friend, Mr Heydon, says, "Perhaps

one can characterize it as the opposite. If

one liked the old architecture and did not like

new architecture", but it is just a matter of

background and degree, in our submission.

My learned friend did say he relied upon

the the text, Your Honour. The next paragraph

of the text which my learned friend did not

refer to in that advertisement - he said the

first paragraph of the third advertisement,

together with what one sees visually - the very

next words, Your Honour, are:

You will be asked to say yes or no

to four amendments.

HIS HONOUR:  I am sorry, I have not picked that up,

Mr Solicitor.

MR GRIFFITH:  Your Honour, it is the final version, the

third advertisement, second paragraph, after

one sees visually, when one cuts to Peter Luck	the words in the first paragraph. with what	in the new parliament house, the first words
he tells you up there is:

You will be asked to say yes .or no to

four amendments.

In our submission, Your Honour, that effectively,

if I could use a strong expression, castrates

any subliminal suggestion, Your Honour, that

movement to new building carries with it a case

for clear movement to new constitution. It:

is saying a case to consider.

Your Honour, the expression he ties that argument to is, "At last there is a chance to

change the CONSTITUTION for the benefit of people

and not politicians". In our submission,

M2T6/4/SDL	32	12/8/88
Reith

that has not connection at all with the complaint
he makes about that first paragraph together

with what one sees visually. If, as my learned

friend says, it excites one to say, "If you go

to a new home you should perhaps get new home rules", in our submission, Your Honour, is an

argument which is not embraced by an expression

tha~'~t last there is a chance to change the

CONSTITUTION for the benefit of people and

not politicians." There is connection. Even

if there were, Your Honour, we would submit,

as a matter of characterization, one cannot say

that it furthers any such argument which, in our

submission, is difficult to perceive in that boxed

expression. We are prepared to concede that one

can attach to the words of the parliamentary third

video what one sees visually.	We say that that does
not make any difference to that.	So that our

submission on the third tape, which I deal with

first, Your Honour, is that on no view,

in our submission, could it be regarded as having

any connection with the summary page, particularly

the boxed sentence on page 4. Your Honour,

my learned friend, I am grateful to, Mr Charles,

assists me by stating what perhaps if I put it would

be the obvious. It must be that in every referendum

there is an opportunity to have a chance to change

the CONSTITUTION. That is why one has a referendum.

It is not really saying very much to put that.

Your Honour, when one deals with the second

advertisment, the first one that my learned friend
challenges - Your Honour, there is a reference to
the Constitutional Commission - again one has

in the text - and this is part of my learned

friend's objection, the third paragraph on page 2

of the text when the speaker picks up the

Constitutional Commission report he says that

in respect of the recommendations form the basis

of three of the four proposed amendments:

on which you will be asked to say yes

or no in the September referendum.

Now, our submission is, Your Honour, those three

sentences my learned friend relies upon, on any

view, must be characterized as neutral. They are

descriptive, Your Honour, of objective fact.

One could say anyone knows we have had a

Constitution Commission for the last two years.

Well, perhaps that is not true, Your Honour, perhaps

a lot of people do not know we have a CONSTITUTION.and

do not know we have a Constitution Commission.

But to say, descriptively, that we have, that it

did have public meetings and have submissions and

their recommendations form the basis of three of
the four proposed amendments is a mere fact, it

is not an argument, in our submission. Then if one

M2T6/S/MB	33	12/8/88
Reith

says,"Well, there is an overtone then of saying
if with this public connection these matters have

come forward, there must be something in it", there is

a clear statement, Your Honour, "You have been asked to say' yes' or 'no 1· about that". It is once more,

we submit, Your Honour, an issue of consciousness

raising and going no further than leaving someone

who sees the advertisement in a position to possibly

browse through this document to find out what it

is about, but certainly with no lead in to say, "Well,
there must be a "yes" case."

Your Honour, we say there is no prohibition, in our submission, upon Commonwealth otherwise

spending money save as is prohibited by this

section properly construed. If one is unable

to characterize these advertisements as presenting

any argument at all, well, of course, that must

be the end of the matter, one does not have to get

involved in these issues of construction at all and our

submission, Your Honour, is that neither of the

two advertisements attacked do present any of the

argument.

(Continued on page 35)

M2T6/6/MB	34	12/8/88
Reith

MR GRIFFITH (continuing): If one, sort of, goes further,

Your Honour, and says, "Well, yes, there is something there to indicate that it may be better to think about

a"yes"vote than a"no"vote, in our submission,

Your Honour, one has not even got to first base to

establish that what has been done can be said to

be in respect the presentation of, we say, this	argument, presumably the 11yes 1 argument.
The argument that he has referred to Your Honour~ is merely the statement of fact that there
was an extensive process of review. Now, when one
looks at the"yes"case, page 4, we would submit,
Your Honour, again the statement that they are the result of an extensive process of consultation with ordinary Australians is not so much an argument ll II b 1 °

f or t eyes case ut mere y Just a statement. But, h

if that be characterized as an argument, Your Honour,

because it is a part of the summary of the argument

in favour, well, then, once more, Your Honour, in our

submission a description of fact as in those three

sentences tied with the statement that you would

be asked to say "yes' or" no:' as is objected to my

learned friend, cannot, in our submission, be

characterized as a statement in respect of the

presentation of this argument.

It cannot be, Your Honour, that if one even

referred to the Constitutional Commission in the
''yes" case summary, one is then, in our submission,

prohibited in a public platform or advertisement,

Your Honou4 or on the television, Your Honour,

referring to the activity of the Constitutional

Commission. There is not an area of embargo. What

the embargo is, Your Honour, is to do something in

respect of the presentation of this argument. Now,

my learned friend still has 1his problem ~ith moving

from this argument on the first question back to

this general statement and then attaching another

general statement of the sort which is in the second advertisement as being something which could be said to deal with that.

The content, in our submission, Your Honour,

differs and it does not constitute trespass into the

forbidden area of subsection (4) merely, if one

could say, well, one could rephrase what is said

in respect of the Constitutional Commission to say

that that is what was said by saying they are the

result of an extensive process of consultation with

ordinary Australians. That is not the same,

Your Honour. It is something different and,
Your Honour, we have made the specific point, I

think, sufficiently that none of the material on

pages 6, 7, 12, 13, 16, 17, 21, 22, which deals

with specific arguments in favour of each of the matters is complained about so far as use of the

M2T7/l/SH	12/8/88
Reith	35

advertisements is- concerned. Your Honour, if

we may then go to another level of defence. In

our submission, subsection (4) would only be
contravened if the Court was satisfied that the

sole,dominant or substantial purpose of the

expenditure was promotion of the argument so

defined. So that we submit, Your Honour, there

is an element intention of dealing with intentional

or purposive action and our submission is,

Your Honour, that is clear from the language of

the provision itself and perhaps, Your Honour,

as my learned friend indicates that he is going

to refer to Hansard, we do not particularly

desire to rely on it but for completeness, if

I could tender to Your Honour an extract of Hansard,

7 December 1983, page 3368 and following and give a

copy of that to my learned friend.

Your Honour, perhaps just to go to Senator "Macklin, who is identified as the proponent of this .

amendment, page 3370 right-hand column, about

point 2, point 3, down:

The only objection the Democrats have is

to the additional funds which the Government intends to use exclusively for the yes case.

And that seems to indicate an element of purpose but we do not desire to rely upon that to any extent

because we say that it is a question of, "Well,

what is the plain meaning of the words which have

been used".

HIS HONOUR:	It does not aake you very far, does it?
MR GRIFFITH:	No, of course it does not, Your Honour, but I

did not want to get into it all.

MR GOLDBERG: If you do not, I will not.

MR GRIFFITH: All right, well, we are both out of that,

then, Your Honour. I accept that offer. But

when one deals with the question of purpose, we

say the manifest purpose of these three advertisements

is to encourage voters to think seriously about the II II II II

propose c anges an to vote on them, yes or no.and_ d h d

for the avoidance of doubt; Your Honour will see

from the amendments in the two which are under

attack, that has been specifically added. I think

the first one did not have that but it seems no one

wants it any way because it is not challenged but

the two which are under attack, to make it clear

what its purpose is, it comes back to saying, "Well,

here's something you will have to decide. You'll

be fined if you do don't."That is not said but that

is a fact. "You have to vote11 yes11 or"no" and,

Your Honour, that this is the purpose, we would

say, is confirmed by the press release, exhibit P12,

M2T7/2/SH	36	12/8/88
Reith

which indicates - that is a press release by the

Attorney, the fourth defendant - sorry, R12,

Your Honour, the second paragraph:

The campaign's aim will be to

inform Australians about the referendum

process and the issues to be decided. It

will increase public awareness of the

referendums and encourage voters to examine

the issues seriously.

No attempt is made in the campaign

to argue the Government's case for a YES

vote at the Referendum.

The Government has gone to great lengths

to ensure the proposed campaign is neutral.

I will leave out the next sentence. Your Honour, we would submit such material as Your Honour has

would seem to indicate that that is all that is

intended. Now, possibly my learned friend has

given an opinion. Opinions may differ as to how

successfully that is done but we would submit there

is no reason to doubt that that is the intention.

So that, even though our submissions do embrace

an operation of subsection (4) which would permit
a case, even a very strong case for the 11yes 'vote

to be done, to be pursued and presented, so long

as it was not done in a way which uplifted and

presented arguments which could be characterized

as being those comprised in the argument under

subsection 11(1) and subsection 11(2}~ which has

been approved and distributed.

In this case, in our submission, Your Honour,

the indications are that no such purpose is intended

and,we would submit, looked at fairly - Your Honour

has the text but Your Honour has also seen the

presentation and I suppose we leave with Your Honour

the video so Your Honour can replay it as you

consider - - -

HIS HONOUR:	I think I have seen it sufficiently.
MR GRIFFITH:	Yes, well, we would submit that when one considers

this issue of purpose, in our submission, on any

reasonable approach, it must be characterized as

going no further than, as we generally submit, an

educative, consciousness-raisirig statement

that there is a referendum and it is necessary

as is stated specifically in.these to challenge the

text to vote "yes" or "no."

Now, Your Honour, we submit that there is

nothing in those advertisements which indicate

that its purpose is to encourage voters to support

the proposed change and even if that is put

inferentially on the basis of, as my learned

M2T7/3/SH	37	12/8/88
Reith

friend puts what is visually seen, in our submission,

one does not then constitute the necessary connection
to say it is in respect of the presentation of the

argument in favour so to find, as we submit, it is. But, really, Your Honour, our general submission is

that neither of these advertisements have the effect

of presenting the argument in favour of the proposals.

Your Honour, as we are content for this matter to be regarded as the trial of the action, in effect,

without pleading as we have no statement of claim

but we take it that there is an oral statement of

claim and - - -

HIS HONOUR: Well, I am to get an agreed statement of facts,

am I not?

MR GRIFFITH: Yes, and Your Honour can take it that there is an

oral demurrer that takes no point on standing for

the claim for declaration. I think we can take it

that my learned friend is not pursuing a claim for an

injunction on me indicating that, if there were a

declaration, well, then, of course, the Attorney

and the Commonwealth would act in accordance with

any such declaration.

MR GOLDBERG:  Those are my instructions, Your Honour, on the basis

of what the learned Solicitor has just said.

MR GRIFFITH:  Yes. Your Honour, we then have avoided what

I referred to earlier, as the obvious issues as

to delay, interrogatory relief, absence of content

and that would seem, as we indicated earlier,

to be a matter strongly in the public interest that

we should just determine the issue but it - - -

HIS HOIDUR: What about the time constraints, Mr Solicitor?

MR GRIFFITH: Well, Your Honour, the agreed facts would

indicate to Your Honour that the first advertis2ment

was to be run, I think, to at least next Friday so

that I certainly will not offer any undertaking but

the agreed facts indicate that the one not under

challenge is the only one to run until next Friday.

Now, we do not -

HIS HOIDUR: When you say, run until next Friday, they are to

commence when?

MR GRIFFITH:  The first one that is not under attack is to

commence on Sunday, Your Honour, yes, so that I

suppose we - - -

HIS HONOUR:  I think if I endeavour to give a decision today

sometime.

M2T7/4/SH	38	12/8/88
Reith

MR GRIFFITH:  I was not even going to ask Your Honrur

for that. I was thinking of indicating, well, there

is next week available, Your Honour, without

any need to get involved in undertakings or

inquiries or questions of injunction but if

Your Honour were able to do that, we would be

very grateful. They are our submissions.

HIS HONOUR:  Thank you, Mr Solicitor. Mr Goldberg?

MR GOLDBERG:  Yes, Your Honour. Your Honour, we submit

that the press release is not relevant to any

issue before the Court. It was put in to

indicate the time factor, Your Honour, and what

was proposed. We submit that the question of

purpose or intention is irrelevant in relation

to this subsection. It is for the Court to

determine objectively by reference to the

advertisement because it may well be that there

was no intention or purpose but the fact is, due

to a zealous attitude to information, the dividing

line has been transgressed and we submit Your Honour

ought not to take into account purpose or intention

but just to look at the advertisements to determine

a proper construction of the section and then decide

whether or not those advertisements are such that

it can be said that by spending money on them - that

is, in respect of the presentation of one of the

arguments.

Your Honour, my learned friend, in my respectful

submission, is seeking to have his case and eat it.

On the one hand he says that the word, 'the argument:'

in favour of or 'the argument:'against in subsection (4)

is limited to the pamphlet. On the other hand, he

says, Your Honour, when he has to confront the fact
that there is material in the advertisement which

one says is material in respect of the presentation

of that argument or part of it, he then says, "Oh

yes, but that is a motherhood statement. That is a

statement of fact!' But· that is not the point,

Your Honour. If it is a statement of fact which is

found is "the argument" in the pamphlet and it is

reproduced in the adverti.&-ement, then, in our

respectful submission, it results in the expenditure

of money in respect of the presentation of the

argument even_ though, Your Honour, it be what

my learned friend would call a motherhood statement.

(Continued on page 40)

M2T7/5/SH	39	12/8/88
Reith

MR GOLDBERG (continuing): It is true, Your Honour, that

it is a statement of fact that the proposals -

and I am looking at page 4 of the statement -

"are the result of an extensive process of

consultation with ordinary Australians': But,

Your Honour, that is what happened but those

in propounding the "yes" case see fit to put it in as part of their argument. They have to use

an economy of words, Your Honour.	They are
limited to 2000 words.	I forget how it works

out in relation to a number of proposed laws but there is a limitation. They see fit to put this

argument. The fact that they see fit to put what

my learned friend says his motherhood statement

is in it, is not to the point.

My submission was to Your Honour that if you

find in the advertisements part of what is the

argument, then there is a breach.	Your Honour put
to my learned friend, "Maybe	that is a too narrow

construction of the statute". In the same way as

my learned friend was wanting to say that the opinion

propounded and the opinion was wrong, our submissions

may be too narrow, as Your Honour put to my learned

friend and Your Honour is not bound by our submissions

but if Your Honour were to take the view that the

construction was wider than that for which we have

contended, then "the wider" includes, as it were,

the narrower, Your Honour, and if Your Honour were

to take - - -

HIS HONOUR:  I would be loathe to do that in the absence of

argument, Mr Goldberg.

MR GOLDBERG: Oh, I accept that. Yes, Your Honour. What I

am trying to say, Your Honour, is our opinion might

be wrong for the wrong reasons that my learned friend

would want it, that is all. But, Your Honour, if I

can then come to what my learned friend said and can	I just round that off. That is my response to him
is not the point .. If you find that there is a
statement in the advertisements which is in respect of a statement in the "yes" case or indeed, if it was the "no" case, that is the end of the matter,
in my respectful submission.
Now, Your Honour, the next matter to which I want to come is subsection (4)(a), (b) and (c) because
my submission is my learned friend's submissions
support our very argument in relation to that. He
says, Your Honour, that subsection (4)(b) is necessary because of section 7(l)(c) of the ELECTORAL ACT and
Your Honour may recall that section 7(l)(c) said that
one of the functions of the Commission was:·

saying, "Well, it is a motherhood statement', that

M2T8/l/SH	12/8/88
Reith

To promote public awareness of electoral

and Parliamentary matters -

and, of course, that is our very point because, as

promoting part of electoral awareness, the Electoral

Connnission might want to say on television, for example, as an Electoral Connnission public

consciousness-raising advertisement, "Look, we've
sent you a pamphlet. Please read it. Please don't

throw it out with all the other junk mail you get

from the supermarkets and look, here we'll show you
a bit of this page which shows part of the "yes"
case, and here's a bit of the page that shows the

"no" case. Please read it."

Were it not for subsection (4) (b) there would be a proscription on that. The very fact that you

have (a)'., (b) and (c), Your Honour, in, then excepts
what would otherwise be a breach of subsection (4) and

that, with respect, proves our point of the wide scope

of subsection (4). It is designed to ensure that

wherever you have the "yes" or the "no" case

propounded, it has to be either in the pamphlet

or any part of it - either in the pamphlet or by
the Electoral Commission or in relation to a member

of Parliament or his staff or a public servant in

some way propounding it.

My learned friend sought to say that,in a sense,

subsection (4) tr~spasses on the government's right

to influence opinion but that is right, Your Honour,

and that is the very point. It is designed to limit

the expenditure in that respect. What subsection (4)

does ; it says that this is the expenditure which is

to be expended and no more and you cannot, either
subtly or insiduously or under the guise, albeit,
inadvertently - let us accept for the moment, albeit

inadvertently, of a public consciousness-

arousing or raising carnpaign,put in part of

the "yes" case or part of the "no" case.

Now, Your Honour, my learned friend seemed to

accept the fact that the Electoral Commission could
uplift part of the "yes" case and part of the "no"

case and publish it because that would be within

(4) (b). It could also do part of it, Your Honour:-

have part of the "yes" case and part of the "no"

case. Our submissions are that if you can identify

something in the "yes" case in the pamphlet that is

matter, whether it be motherhood statement or not.	in the advertisement, then that is the end of the that it has to be the whole of the "yes" case or the
whole of the."no" case and, if that is what he was saying,
Your Honour, then we submit that cannot be right because, as we have said in the advice which is

M2T8/2/SH	41	12/8/88
Reith

one of the exhibits, in respect of the presentation

of the argument, would be in respect of any component

parts of it and to say, Your Honour - and perhaps this

relates back to the earlier point - that what we have

relied upon and what the plaintiff relies upon in

the pamphlet as being a matter of a general nature

and a platitude is not to the point. It is part of

the argument. Now, Your Honour, can I just then

take you, finally, to the two advertisements just briefly, and if I could start off, Your Honour -I

think my learned friend looked at advertisement 4,

that is, exhibit Rll, first.

HIS HONOUR: This is the old parliament house, new parliament

house.

MR GOLDBERG:  Old ·~:fiame-nt house, new oarliament house,

Your Honour. My learned friend said that the

second paragraph of advertisement 4 castrated the

meaning for which we contend in relation to the

old and the new and changing the CONSTITUTION.

If Your Honour looks at page 4 of the pamphlet,

Your Honour will see that the words start there:

At last there is a chance to change the

CONSTITUTION for the benefit of people

and not politicians.

And, Your Honour, this part of the advertisement

is very subtle and that is why it is important for

Your Honour to have seen the visual part of it

because an opening on an old parliament house and

going to a new parliament house shows - and I am

speaking colloquially, Your Honour - "Isn't this

terrific. Here's something that's new and up-to-date

and modern and state-of-the-art and for the next

century and look at the old building that's been

there since forever." And then to say, Your Honour,

in juxtaposition to that, both visually and orally:	Just as our Federal Parliament has outgrown
its old home and moved to this magnificent
new Parliament House, you have the opportunity on September 3 to review our CONSTITUTION.

And that is why, Your Honour, we submitted in the

opinion and we submit again, that that is part of

the "yes" case in the manner to which we refer.

Dr Griffith said:

In any referendum, there is a chance to change.

And he is right but that does not mean you show an old and a new in juxtaposition. Change is one thing and Your Honour will recall in some of the other

advertisement and, certainly, in advertisement 1

there is a reference to change, but that, of itself,

M2T8/3/SH	42	12/8/88
Reith

is a different matter. It is the juxtaposition of

old and new. May I then take Your Honour, finally,

to advertisement No 2 which is exhibit 10, Your Honour.

HIS HONOUR:  That is the Henry Parkes' advertisement.

MR GOLDBERG:  That is so, Your Honour. Of course, Your Honour,

I would put it a different way. I would call it - it

is the Constitutional Committee advertisement because

Your Honour will see, and this is why the visual part

of it is so important.:

The commercial opens on an oil painting

of Sir Henry Parkes. Dissolve to painting

of the Constitutional Committee of 1891.

My recollection is that was a two-dimensional drawing.

If Your Honour then goes over the page to page 2,

Your Honour will see the three paragraphs upon which

we rely and my learned friend says that they are
neutral and they are descriptive but, Your Honour,

that cannot be right. It is not neutral to say:

The Constitutional Commission representing

a cross-section of Australians ..... held public

meetings ..... accepted over 4,000 submissions.

And then the crux of it, Your Honour, the king hit:

Their recommendations form the basis of the

4 proposed amendments on which you'll be

asked to say yes or no· in the September 3

Referendum.

What my learned friend was saying, Your Honour -

he was not saying they are neutral or descriptive.

What he was seeking to say that they are factual but that is the point, Your Honour. If they are

factual, you then have to go back to this document

and say, "Is it part of the argument?" and part of

the argument there we see in paragraph 4 is:

They are the result of an extensive
process of consultation with ordinary
Australians.

And it is obviously and clearly part of the argument, a reference to the Constitutional Committee and that

is why, Your Honour, the Constitutional Committee is

in this advertisement and it is part of the argument.

Now, Your Honour, the final point is this -

and it was argued in a sense, I believe, albeit,

faintly, in this way:  my learned friend said,

as a matter of grammar, as I understood him, that

where you see the words "in respect of the presentation

of the argument" - and I had a little bit of difficulty

M2T8/4/SH	43	12/8/88
Reith

with this, Your Honour. Pardon me for one moment.

He seemed to be saying that the words "in respect

of" somehow related not so much to the argument but, in some way, the presentation of it, as it

were, the formal presentation of it or the pamphlet

presentation of it. Our submission is, Your Honour,

that that cannot be right and what is proscribed,

as I have submitted earlier, is an expenditure of

money in a manner which puts any part of the "for"
argument or the "against" argument other than as
allowed in (a), (b) and (c) and that is why,

Your Honour, we submit that (a), (b) and (c)

supports our construction. If my learned friend

was right on his gram:natical construction, then

you would not even need (a) and you certainly would

not need (b) and (c).

Your Honour, those are our submissions in reply.

Might I hand up to Your Honour a photocopy of each

of the authorities which is referred to in the

opinion that should have formed part of the exhibit.

That is on the substantive point 'in respect of;

Your Honour, in paragraph 9 of the opinion. There

are three authorities referred to to deal with the

width of the words "in respect of". Your Honour,

I have not sought to repeat - I have sum:narized,

in a sense, the argument that is in the advice but

I - - -

HIS HONOUR:  TAIT is the case - - -

MR GOLDBERG: Pardon, Your Honour?

HIS HONOUR:	Is that the reference to the - I think it was a Victorian case in which it was said that the
word "in respect of" is the widest~· That just
cannot be right, can itJ I mean, you can think of much wider expressions like "having a remote connection with" or - - -
MR GOLDBERG:	Oh, in that respect, yet it is wide enough

to cover this, Your Honour, is the point.

HIS HONOUR:  Oh yes, but it is just if that is the citation

you rely on, I am just pointing out, I cannot accept it.

MR GOLDBERG:  I understand that, Your Honour. Now, Your Honour,

the agreed statement of facts is now before - if I

can hand up.	How many copies does Your Honour wish -
two?

HIS HONOUR: Well, I would be grateful for two, thank you very

much. You could distribute largess at a later time,

Mr Goldberg.

2T8/5/SH	44	12/8/88
Reith

MR GOLDBERG:  I am sorry, Your Honour. No, Your Honour,

I just wanted to make sure that there was no

suggestion - that every one had a chance to look

at it, Your Honour. That represents the collective

wisdom of all of us in relation to the facts. If

Your Honour pleases.

HIS HONOUR:  And those facts are agreed, are they?

MR REYDON:  Yes, Your Honour. Could I just say something

at this stage. The plaintiff only sought mandamus

against the first, second and third defendants and

make them after judgment,. firstly, to dismiss the
abandoned that claim soon after the outset this
morning. In those circumstances, Your Honour, would

proceedings against the first, second and third

defendants, order the plaintiff to pay the costs

of the first, second and third defendants and, so

far as necessary, certify for counsel?

HIS HONOUR:  I think it will be appropriate to deal with that

in my judgment, Mr Reydon.

MR REYDON: If the Court pleases.

MR GOLDBERG:  I would wish to be heard in relation to that,

Your Honour, because I only - as a result of what

the learned Solicitor said this morning and the

wish of the parties to get the point determined,

having got the undertakings from the Commonwealth,

that then became unnecessary. If. ,those undertakings

had not been given this ~orning, Your Honour, we

might have had to have adopted a different procedure.

(Continued on page 46)

M2T8/6/SH	45	12/8/88
Reith

HIS HONOUR:  I can hear you at a later stage, Mr Goldberg.

Yes, Mr Solicitor.

MR GRIFFITH:	Can I indicate I have given no undertakings.
HIS HONOUR:	Perhaps I ought to indicate my understanding that

I am to deal with this matter upon the basis that it

is the trial of the action and that what is being

sought is a declaration and you have indicated - not undertaken - that the Connnonwealth will abide by the

declaration and order its affairs accordingly.

MR GRIFFITH:	Yes.
HIS HONOUR:	Well that is satisfactory.
MR GRIFFITH:	Your Honour, we would think no such indication ordinarily should be necessary because it would
follow, Your Honour.

HIS HONOUR: That is satisfactory, is it not?

MR GRIFFITH: This is not TAIT's case, Your Honour. It is not

the State, it is the Connnonwealth.

MR GOLDBERG:  I accept that. I used the word "undertaking" as

indication, Your Honour.

HIS HONOUR:  If that is the basis upon which I am going to

proceed, I will now adjourn until 3.15 when I hope

to be able to give a decision.

MR GRIFFITH: If Your Honour pleases.

MR GOLDBERG: If Your Honour pleases.

AT 11.59 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 3.19 PM:

(Reasons for judgment were delivered)

HIS HONOUR: Consequently, I am prepared to make the necessary

declaration.

Now, do the parties wish to make any submission as to the form of the declaration?

M2T9/l/RB	46	12/8/88
Reith

MR GOLDBERG:  Your Honour, I would seek a declaration that

would identify the advertisements along these lines:

"A declaration that the expenditure of moneys by the

Commonwealth on a proposed advertising campaign

involving the use of the advertisements annexed hereto",

and then we could annex them as a schedule, Your Honour,

"is in breach of section 11(4) of the Act".

HIS HONOUR:  Very well. Do you have anything to say,

Mr Charles?

MR CHARLES:  Yes, Your Honour. We would ask that the declaratiom

identify the portions of the advertisements to which my

friend has made complaint because it is they, as we

understand it, which are said to promote or involve a

presentation of the case made in the referendum booklet.

Your Honour, we would submit that it is that to which

the plaintiff's case is properly directed and that to

which the declaration should be limited. So, Your Honour,

that would mean that in relation to the second of the

advertisements, it would be the three paragraphs, if

Your Honour accepts this submission, beginning "over two

years ago" and ending "in the September 3 referendum"

and in relation to the last of them it would involve a

declaration relating to the first paragraph, "Just as

our Federal Parliament has outgrown" and ending "review

our CONSTITUTION".

HIS HONOUR:  Well, the machinery for all of this you can work

out for yourselves. If I make an order in this form:

"I declare that the expenditure of moneys by the

Commonwealth upon the two advertisements now in question", which will be annexed to the order, "containing the

portions objected to by the plaintiff", which will be

indicated by underlining, "is or would be a breach of

section 11(4) of the REFERENDUM (MACHINERY PROVISIONS)

ACT 1984", that would suffice would it not?

MR CHARLES: It would, Your Honour. It would make it even more

clear if Your Honour included the words "to that extent".

HIS HONOUR:  Well, you do not have any objection to that, do

you? I will add those words: "to that extent".

MR CHARLES:	If Your Honour pleases.
HIS HONOUR:	Now, Mr Hayes?

MR HAYES:  I have nothing to say about the form of relief. I

have something to say about costs at the appropriate time.

HIS HONOUR: Well, this is the appropriate time.

MR HAYES:  Your Honour, we submit that the plaintiff should pay

our costs because although the plaintiff has been

successful, he has come here and not sought any relief

against us and thus we have had nothing to say to the

Court, and as such we are entitled to our costs.

M2Tl0/l/PLC	47	12/8/88
Reith

HIS HONOUR:  He, of course, did seek relief against you in the

writ but as things have worked out the parties have been

sensible in their approach to the matter and they would

be disposed of quickly and that is the reason, perhaps,

why we have never had to reach you.	Should the plaintiff
be penalized for that?

MR HAYES: Well, we rather apprehend from what was said this

morning, Your Honour, that the claim for a mandamus was

a fall-back position in case there was a difficulty with

standing and that, really, the complaint was between the

plaintiff and the Commonwealth and it was the plaintiff

and the Commonwealth who were interested in the question

of whether the advertisements did or did not infringe

the Act. Now, we came ready to argue the mandamus point

and would have addressed comments to Your Honour but

we would not have wanted to address arguments on the
substantive matter as, in our submission, we were not a

proper party to be arguing those. So, we have come here

on the claim for a mandamus; it has not been pursued;

there has been no standing difficulty - - -

HIS HONOUR: That is largely, again, because of the attitude of

the parties.

MR HAYES:  Yes, Your Honour, but it is not our fault that an

attitude was or was not formed before we came to Court.

HIS HONOUR:  I do not think anyone is suggesting you are at

fault in any way.

MR HAYES: No, Your Honour. Well, in our submission - I am

only repeating - we say we came here as a form of

convenience to the plaintiff and no order has been sought

or obtained against us and we should have our costs.

HIS HONOUR:  What do you say about that, Mr Goldberg?

MR GOLDBERG: Well, Your Honour, in my submission, either the

Electoral Commission should bear its own costs or the
Commonwealth should pay its costs.	I will be seeking

an order for costs against the Commonwealth and either

the Commission should pay its own costs or, if Your Honour

is disposed to make an order that we pay their costs,

those costs should _form part of the costs the

Commonwealth should pay to us.

Your Honour, the question of the mandamus was a live

issue until the learned Solicitor-General said if a

declaration was made the Conm:mwealth 'MJUld abide the result.

Until that concession was made, Your Honour, we were in

this position, that if the declaration was made we had

no way of having the order of the Court enforced.	It
is only the Commission that has the right under
against the Commission - and may I interpolate,	section 139 of the Act to get injtmctive relief. Our case
Your Honour, the Commission was clearly a necessary and a
proper party in these proceedings having regard to its

M2Tl0/2/PLC	48	12/8/88
Reith

role in the Act - the Commission had our argument and

in the light of our argument still said it proposed to

do nothing about the matter. So, my primary submission

is they should either bear their own costs or the

order for costs which I seek against the Commonwealth

should be - I think it is a BULLOCK order form, Your Honour,
that any costs that we have to pay the Commonwealth

should include the costs of the Commission. If Your Honour

pleases.

HIS HONOUR:  Mr Hayes?

MR HAYES: I have nothing else to say, Your Honour. If it came

down to a question of whether we should pay our own

costs or'the Commonwealth pay the costs, that would be

an academic exercise and we would not seek an order.

It would come out of the same source of revenue.

HIS HONOUR:	Government moneys going around.
MR HAYES:	Yes, Your Honour, we do not wish to get involved

in unnecessary circulation but we do pursue our claim

against the plaintiff.

HIS HONOUR:	Yes, I think - - -
MR CHARLES:	Your Honour, would Your Honour hear me very briefly - - -
HIS HONOUR:	Yes.

MR CHARLES: - - - in case anything seeks to land in this direction

rather than go around. Your Honour, the statement of

agreed facts makes it clear that the plaintiff

was aware of the nature of these advertisements at around

26 July, something of the order of a fortnight ago. The

plaintiff did not make any request, as I am instructed, to the Commonwealth to accede to a declaration. Had it done so, as I am instructed, that acceptance would

immm.ediately have been made.	The plaintiff's advisers,
in the form of the opinion which Your Honour has

had put before the Court,indicate that the plaintiff was

advised that it would have been equally appropriate to

seek a declaration had the plaintiff been minded to do

so. Had that course been followed, had the request been

made, it would not have been necessary to have the

Electoral Commission here. We would submit, Your Honour,

that it is not appropriate in those circumstances to make

a BULLOCK order or whatever other order Your Honour seeks

to make. Obviously, we cannot resist an order that we

pay the plaintiff's costs ourselves.

HIS HONOUR:  Yes, thank you, Mr Charles.

I think that in the circumstances, since the plaintiff

has made out its case on the merits and as I am not unable to

say that it was not justified in joining the members of

the Electoral Commission as defendants at the time at which

M2Tl0/3/PLC	49	12/8/88
Reith

it did, the proper thing to do is to make no order as

to costs in relation to the members of the Electoral

Connnission. Now, you seek costs?

MR HAYES:	I see an order for costs against the Connnonwealth.
HIS HONOUR:	Mr Charles has already indicated his att~~ude.

So, the declaration will be made with costs.

MR HAYES: If the Court pleases.

MR GOLDBERG:  Your Honour, might I, on behalf of those at the

bar table, thank Your Honour for hearing the matter with

such expedition.

HIS HONOUR:  Thank you.

AT 3.41 PM THE MATTER WAS ADJOURNED SINE DIE

M2Tl0/4/PLC	50	12/8/88
Reith