Stephens & Ors v West Australian Newspapers Limited; Theophanous v The Herald & Weekly Times Limited

[1993] HCATrans 274

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S22 of 1993

B e t w e e n -

THOMAS GREGORY STEPHENS & ORS

Plaintiffs

and

WEST AUSTRALIAN NEWSPAPERS

LIMITED

Defendant

Office of the Registry

Melbourne No Mll0 of 1993

B e t w e e n -

DR ANDREW THEOPHANOUS

Plaintiff

and

Theophanous	176	16/9/93
MASON CJ
BRENNAN J
DEANE J DAWSON J
TOOHEY J
GAUDRON J MCHUGH J

THE HERALD & WEEKLY TIMES

LIMITED

First Defendant

and

BRUCE RUXTON

Second Defendant

Cases Stated

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 16 SEPTEMBER 1993, AT 10.17 AM

(Continued from 15/9/93)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Hughes.

MR HUGHES:  Your Honours, I would conclude what I want to

say about the constitutional defence in

paragraph 20A by saying this:  no doubt the

law is the product of the accumulated judicial

founding fathers and the framers of the

wisdom of the ages.

If that be so, there really can be no

necessary implication of legislative intent in the interests established by the common law of

defamation, as it existed, should be disturbed in
with the implied freedom inherent in the	the future otherwise than by legislation compatible the majority of this Court, in the two cases so
much discussed.

I now move, if I may, to the defence raised in

paragraph 20B. Stripped of its cladding,

Your Honours, paragraph 20B depends upon the

proposition that there can be a qualified

privilege, a common law qualified privilege, for

the widespread dissemination by the mass media of

defamatory disinformation about people just because

they happen to be people involved in the workings

of representative government. That proposition, we

Theophanous 177 16/9/93

would submit, is opposed to authority, and it is opposed, if this needs to be said, to principle.

Very briefly, if I may put it, Your Honours,

the legal theory underlying the defence of

qualified privilege at common law is that there are

occasions upon which it is in the public interest

that a person may publish with immunity from legal

liability false and defamatory statements of fact

about an individual, provided that the publisher

believes them to be true and provided that the

publisher publishes them in pursuance of a duty,

legal, social or moral, or in protection of a

legitimate personal interest. Now, paragraph 20B

of the defence recognizes the legal requirement of

establishing interest or duty reciprocally, as

between publisher and publishee.

Your Honours, the latitude given by the common

law, with respect to the sorts of occasions to
which I have alluded, is counterbalanced, as the
cases would seem to show, by confining the
legitimate scope of publication by reference to the

particular exigencies created by the duty or

interest.

There are certain landmark cases in this

branch of the law, and I will not weary

Your Honours I can assure Your Honours by reading

them at length. May I refer, however, to a very

convenient review of the landmark cases by the
Court of Appeal in New South Wales in the case of

Morosi v Mirror Newspapers Limited,

(1977) 2 NSWLR 749, commencing at page 774.

I should, before I go very briefly to it, make

a correction to our outline.	We have given a
reference to Adam v Ward.	The reference starts at

the bottom of page 9 of the outline. At the top of

page 10 the reference to page 322 is incorrect. It

should be page 334. I am sorry for the error.

The treatment of the subject of common law

qualified privilege commences at page 772 and

really the landmark cases are summarized with

helpful quotations of the particularly important

passages. Of course, one starts as the court did

with Toogood v Spyring, and I shall not read the

passage from that case which is so much part of the
foundation of this body of law.

There is a reference to Loveday at page 777, and to the dictum of Sir John Latham. There is a

reference, on the same page, to Davis v Shepstone

and Your Honours will see at the bottom of page 777

a quotation from Lord Herschell in Davis v

Shepstone which reads:

Theophanous 178 16/9/93

"There is no doubt that the public acts of a

public man may lawfully be made the subject of

fair comment or criticism, not only by the

press, but by all members of the public. But

the distinction cannot be too clearly borne in

mind between comment or criticism and

allegations of fact, such as that disgraceful

acts have been committed, or discreditable

language used. It is one thing to comment

upon or criticise, even with severity, the

acknowledged or proved acts of a public man,
and quite another to assert that he has been

guilty of particular acts of misconduct.

Then there is a reference over on page 778 to

a helpful passage in the opinion of the Privy

Council in Arnold v The King Emperor.	I will not
read it.	Your Honours, in this area of the law

there is a passage in the judgment of

Sir Owen Dixon in Loveday which follows immediately

after the passage which we have cited in our

outline from His Honour's judgment. That passage is at 59 CLR 503, at page 521. The passage which

we cited in our outline appears at page 520 and I

will not read it, but His Honour went on to say:

In Chapman v Ellesmere, Lord Hanworth MR said:

"But though the vehicle of the public press

has been held to be a proper and protected

one, so as to defeat a claim for libel, where it has been used 'as the only effective mode'

to answer a charge which had already received

as wide a circulation (see Adam v Ward and

Brown v Croome), there is no authority which

protects the statement in the newspaper, where

it is made not in answer, but as a fresh item

on which a general interest, as distinguished

from a particular interest already aroused,

prevails. Buckley LJ, in Adam v Ward, stated

a proposition, which was approved in the House

of Lords, in the following terms: 'If the

matter is matter of public interest and the

party who publishes it owes a duty to

communicate it to the public, the publication

is privileged, and in this sense duty means

not a duty as a matter of law, but, to quote

Lindley LJ's words in Stuart v Bell, "a duty

recognized by English people of ordinary

intelligence and moral principle."'

I will not read the rest of the paragraph.

This passage -

said His Honour -

Theophanous 179 16/9/93

formulates principles which appear to me to be

fatal to the claim made by the defendant Sun

Newspapers Ltd to privilege, if the facts are

assumed to be that, without any consent,

invitation or incitement from the plaintiff himself, the newspaper published at one and the same time the criticism or attack upon

what had been done by or under the authority of the municipal council by the secretary of the unemployed relief council - - -

DEANE J:  Mr Hughes, would you support the last sentence in

the preceding paragraph which you did not read?

MR HUGHES:	Yes, Your Honour.
DEANE J:	You would?

MR HUGHES:  Yes, I should have read it. I am sorry, I am

trying to hurry up.

DEANE J:  So that disclosing new facts can never attract

this particular privilege?

MR HUGHES:  The principle seems to be, as I would take it

from that passage, that a newspaper cannot create

an occasion of qualified privilege by disclosing,

as fact, falsehoods which are defamatory.

DEANE J: Well, you say "falsehoods", but the question of

qualified privilege or not normally would not be

asked in terms of falsehood. You would ask whether

there was an occasion of qualified privilege for

what you believed to be true but then proved to be

false.

MR HUGHES: 

Yes, I accept Your Honour's correction but, of

course, the question of whether the facts
voluntarily disclosed by the newspaper are false

comes into the equation when one considers the

aspect of whether it is in the public interest, or

made.  for the good of society, that such a disclosure be

DEANE J: If you are in the old common law, of course, it is

the sine qua non of qualified privilege being

relevant in a practical sense.

MR HUGHES:  Exactly. The matter published must be relevant

to the occasion of qualified privilege. There is

that passage. I will not read the passage in the

speech of Lord Atkinson at (1917) AC 334, where

His Lordship emphasizes the need for reciprocity.

It is important perhaps to realize that in this

case, in relation to this particular defence, the

defendant accepts the need for reciprocity because

the allegation of reciprocity is pleaded.

Theophanous 180 16/9/93

TOOHEY J:  Mr Hughes, I was going to ask you in what

respects you say that the pleading in paragraph 20B

goes beyond the existing law as to qualified

privilege, but you may really have answered that in

answer to Justice Deane's question. Do I

understand you to be saying that in no

circumstances is the plea of qualified privilege

available to a newspaper?

MR HUGHES:  Except in the sort of situation dealt with in

Adam v Ward where the plaintiff had made a speech

in the House of Commons defamatory, but of course

covered by absolute privilege, about the defendant.

In the interest of protecting the defendant's reputation, the secretary of the army council - who

was the defendant - published a refutation of the

attack made under absolute privilege. In that case

the ratio was that because the plaintiff, the
member of Parliament, had made his attack to the
world in the House, then it was appropriate to use

a mode of dissemination of equal scope or

approximately equal scope, hence publication

legitimately of the reply in the newspaper.

MR HUGHES:  Now, it is very dangerous in dealing with the

common law to say never can a newspaper claim

qualified privilege, but on the state of the

authorities up to now the law would, in our

respectful submission, be that, except in that type

of case, a newspaper cannot get the privilege, and

that is supported by what has been said in this

Court, particularly in Loveday, the passage that I

cited and also, and I will not cite the passages,

in Becker v Smiths Newspapers, an earlier case,

47 CLR; I hope that answers what Your Honour put to

me.

TOOHEY J: Yes, thank you.

BRENNAN J:  Mr Hughes, if we start with the proposition that

the doctrine of qualified privilege depends at base

upon the common convenience and welfare of society

and if we were to accept that the adaptability of

the law of privilege can be such as to meet the

varying conditions of society and the requirements

and habits of the current age, why is it that the

revelation of facts, material to the conduct of
public affairs by the media, could not fairly fit

within the doctrine?

MR HUGHES:  First of all, there is the difficulty created by

the requirement of the common law of reciprocity.

We have dealt with this in our outline. A

newspaper has no duty, cognisable by the law, to

publish defamatory facts about anyone; it is not a

matter of duty, it is a matter of choice. And that

is the point fairly vividly made by Lord Herschell,

Theophanous 181 16/9/93

Your Honour, in the passage that I cited from

Davis v Shepstone.

BRENNAN J: That seems to me to be a proposition which at

least is open to consideration in the modern age.

MR HUGHES:  Well it may be, but when it is being considered

it ought, in my respectful submission, be borne in

mind, as a matter of great importance, that there

is the need for balance in the working out of the

common law. And, unlike the situation in the

United States, the common law does place importance

on the value of reputation; in the United States

they do not seem to do so because of the

requirements of their Constitution. Now when one

is considering, quite apart from the question of

reciprocity, whether it is in the interests of

society that false defamatory statements of facts

should be published about an individual because he

happens to be involved in the workings of

government, some emphasis and considerable

emphasis, we would submit, should be attached to

the fact that the statements are false as well as

defamatory. That is under the rubric or the

heading of public interest.

This problem which Your Honour has raised with

me is dealt with in a Canadian case, which is

mentioned in our outline, that is The Globe and

Mail Ltd v Boland, (1960) 22 DLR (2d) 277. Now I

think we have got copies for Your Honours. This is

a decision of the Supreme Court of Canada, the

leading judgment was given by

Mr Justice Cartwright. This was a case involving

defamatory statements made about a candidate's

fitness for office during the course of an election

campaign and at page 280, Justice Cartwright dealt

with the decision of the trial judge which upheld
the defence of qualified privilege, and this is

what Justice Cartwright said at the bottom of the

page 280:

This is what Justice Cartwright said. It is

at the bottom of the page 280.

With respect it appears to me that, in the

passage from his reasons quoted above, the

learned trial Judge has confused the right

which the publisher of a newspaper has, in

common with all Her Majesty's subjects, to

report truthfully and comment fairly upon

matters of public interest with a duty of the

sort that gives rise to an occasion of

qualified privilege.

Then there is the citation from Arnold v

The King Emperor which is a citation which equates

Theophanous 182 16/9/93

the position of a journalist with that of any other

member of the public.	He has no more right, nor
less.	Then His Honour went on:

To hold that during a Federal election

campaign in Canada any defamatory statement

published in the press relating to a

candidate's fitness for office is to be taken

as published on an occasion of qualified

privilege would be, in my opinion, not only

contrary to the great weight of authority in

England and in this country but harmful to that "common convenience and welfare of

society" which Baron Parke described as the

underlying principle on which the rules as to

qualified privilege are founded. It would

mean that every man who offers himself as a

candidate must be prepared to risk the loss of
his reputation without redress unless he be

able to prove affirmatively that those who

defamed him were actuated by express malice.

I would like to adopt the following sentence

from the judgment of the Court in Post Pub Co

v Hallam:  "We think that not only is such

sacrifice not required of every one who

consents to become a candidate for office, but
that to sanction such a doctrine would do the

public more harm than good."

Then His Honour cites Gatley, and then His Honour

cites the passage from Chief Justice Cockburn in

Campbell v Spottiswoode, and that is the passage he

reads:

"It is said that it is for the interests of

society that the public conduct of men should

be criticized without any other limit than

that the writer should have an honest belief
that what he writes is true. But it seems to

me that the public have an equal interest in

the maintenance of the public character of

public men; and public affairs could not be

conducted by men of honour with a view to the
welfare of the country, if we were to sanction

attacks upon them, destructive of their honour

and character, and made without any

foundation."

I do not think I need read any further,

Your Honours. A newspaper has no duty to publish

false and defamatory statements of fact, nor does
it have a legitimate interest from the viewpoint of

the public welfare in so doing, and in that

connection I refer Your Honours, if I may, to the

very pithy statement by Lord Macnaghten in

MacIntosh v Dun which we have referred to and set

out in our outline. The law of qualified privilege

Theophanous 183 16/9/93

is not concerned with the protection of publishers

who trade in people's character for profit by

disseminating false material.

DAWSON J:  Mr Hughes, why was this not a matter for argument

at the trial? Why do we have to decide this here?

MR HUGHES:	Because, Your Honour, the matter has been removed in this Court and it is asserted in the
defence that a newspaper publisher has an interest
or a duty in publishing these false defamatory
statements of fact. We did not consent to the
removal, Your Honour. We have to deal with the
matter as it is on removal, and we have to deal
with that allegation in the defence and that, we submit, makes it legitimate and, indeed, necessary
to examine the authorities on the interest, duty,
reciprocity question.  I do not think I can say
anything additionally to that.
DAWSON J:	But surely the party is entitled to plead it.

Whether they will make it good is another question.

MR HUGHES:  But this is a question of law, Your Honour. It

was removed as a question of law, and in the

Supreme Court of Western Australia, an unadorned

defence of qualified privilege in this case, not in

the form of paragraph 20B, was considered by

Justice Owen in the supreme court, and His Honour

struck out the ordinary defence of qualified

privilege consistently with the decision of the

Full Court of the Supreme Court of Western

Australia in Nationwide News v Wiese,

(1990) 4 WALR 263. So this was a special defence

which really raises questions of law. It is not a

traditional type of common law -

DAWSON J:  I may be being very dull about it, but I do not

see why they are not entitled to argue questions of

law.

MR HUGHES:	I am not suggesting, Your Honour - - -
DAWSON J:	Why you should strike out a pleading because it

raises a question of the scope.

MR HUGHES:  Your Honour, I am not for one moment contending

that they are not entitled to raise the question of

law, but because it is a question of law - - -

DAWSON J:	I mean, we would have to determine it now.
MR HUGHES:	Removed to this Court for determination, it has

to be determined here. I do not think I can help

Your Honour any further on that.

Theophanous 184 16/9/93

Your Honours, may I add one further factor to

the equation which we submit is relevant in
evaluating public interest or the common
convenience and welfare of society in the situation
revealed by the pleadings in this case. It seems
inappropriate, we would suggest, to say that the

mass media have a common law right to publish false

and defamatory statements of fact about a

politician involved in the workings of

representative government when one bears in mind

that the mass media are under no legal duty

whatsoever to publish a corrective statement if it

happens to be false. On the case put for the

defendant, they have this right or freedom but

there is no countervailing right in the victim to

insist upon corrective statements. That must bear

on public interest.

Your Honours, I am not going to read it, but

there is, in a case which we have not listed - we

found it only this morning - Silkin v Beaverbrook

Newspapers Ltd, (1958) 1 WLR 743, a very, if I may

say so with respect, lucid statement by

Mr Justice Diplock, as His Lordship then was,

charging a jury in a defamation case; a statement

about the balancing function of the common law in

dealing with questions of reputation. This is

under a plea of fair comment, but it is perhaps
worth reading.

There is, we would submit, a degree of imprecision in one aspect of the defence raised in

both paragraph 20A and 20B. It is said in each

paragraph that the publication was reasonable.

That leaves one wondering, I suggest, whether they

are saying that the conduct of the publisher in
publishing this concededly false material was
reasonable, or whether the content of the

publication was reasonable and, at the end of the

day, one encounters the difficulty pointed up in

the course of argument by Justice McHugh yesterday

when Your Honour said that as a yardstick for

immunity, reasonableness would seem to be - and I
am paraphrasing - a very slippery concept indeed.

The virtue of the common law, if I may use

that expression, was that in matters relating to

qualified privilege or comment, honesty was made

the criterion, or the main criterion of immunity

plus, of course, interest duty in qualified
privilege situations.

So highly did the common law regard the need on occasions, where there was a reciprocity of duty

and interest to make a defamatory publication, that

the onus of proving lack of belief in the truth of

what was published was cast on the plaintiff.	It
would seem incongruous, in our respectful

Theophanous 185 16/9/93

submission, to allow to the mass media a qualified

privilege, at common law, to publish this sort of

material in circumstances where the onus would be

upon the plaintiff to prove lack of belief in

truth. That is disturbing the balance unduly, the

delicate balance worked by the common law.

So for those reasons we say that the common

law defence, paragraph 20B, is opposed to principle

and authority. We would also say that the common

law defence gains no added impetus from any implied

freedom if we are correct in our submission that
the implied freedom is not in the nature of the

grant of a private right. For those reasons, we

would submit, that the Court will hold that each of

the defences is bad in law. If the Court pleases.

MASON CJ:	Thank you, Mr Hughes. Mr Rose?
MR ROSE:	If the Court pleases. Your Honours should have a

copy of our written outline.

MASON CJ: Yes.

MR ROSE:  As Your Honours will see from that outline the

Commonwealth adopts the submission by both defendants that the implied freedom based on

representative democracy applies not only as a
limit on Commonwealth legislative power, but also

as a limit on State legislative power and the

common law. But we do not adopt all the reasoning

relied upon by the defendants. Both defendants

mentioned covering clause 5 of the Constitution as

having a primary role on that issue, but for

ourselves we think that no real assistance can be obtained from covering clause 5 in the sense that before one can apply it with its reference to this

Constitution Act
Act as the which includes the content of the Constitution is.

There may be some issue, in fact, whether

covering clause 5 applies at all in respect of the
common law, but if it does not there is, of course,

the general rule that the common law is superseded

by any valid legislation, in this case the Imperial

Act containing the Constitution. So we have the

same problem that the content of the constitutional

implication cannot be derived from either covering
clause 5 or from that general principle. When we

turn to the question, "What is the content of the

constitutional implication?", we submit that there

are two main forms that it could take as

alternatives.

One would be in the form, on the model of

section 114 or the first part of section 116 that

Theophanous 186 16/9/93

it is in the form "A Commonwealth or a State shall

not make any law ..... impairing the freedom."	The
alternative form would be one in which the

Constitution contains an implication in the terms

that "There shall be a system of representative

democracy which shall be implemented by means of

the following provisions for parliaments" and so

on. In our submission, it is the latter

formulation that fits better into the Constitution

into the context of the sections which are the

primary basis for the implication, in the case of

the Commonwealth Parliament, section 7, 24 and 128.

If there is a constitutional implication in that

form, in our submission it must override any

inconsistent State legislation and in our view must

also override anything inconsistent in the common

law. If the common law gives a right of action for

damages which would be inconsistent with an

implication in those terms, then the common law

must yield.

In paragraph 5 of the outline we present an

assumption that in 1900 the common law or, for that

matter, colonial or imperial legislation, had given

to any defamed minister of the Crown a right to

damages - I suppose in New South Wales it would be

a right to damages and costs - without any defences

being available to the defendant. If that were the
terms of the common law in 1900 or of any colonial
or imperial legislation, that must have been

overridden by an implication in the terms I have

mentioned. So that, in our submission, is one

consideration which should lead to the conclusion

that the common law yields to the implication based

on representative democracy.

We proceed to point out what appears to us to

be an anomaly if the constitutional implication

were only to preclude impediments that were found

in Commonwealth legislation or in Commonwealth

legislation or post-1900 State legislation and not
in the common law.	It would also be very odd if

the Constitution were to strike down, for example,

State codifications of the law of defamation. If

that were done, it would leave the common law there

doing the same thing.

A further reason why a constitutional

requirement of representative democracy overrides

both legislation and the common law in relation to

State political matters is based on the various

references in the Constitution to the State

Parliaments, and in that regard we refer to the

judgment of Your Honour Justice Gaudron, with whom

Your Honours Justices Deane and Toohey agreed.

Theophanous 187 16/9/93

We proceed to submit that acceptance of an argument along those lines does not amount to

implying into the Constitution anything in the

nature of positive rights. The constitutional

implication merely removes or prevents criminal

sanctions such as those that were held invalid in

Nationwide News, or civil sanctions which may be

found in statute or in the common law such as

actions for damages or injunctions, if they are

incompatible with representative democracy. In the

absence of those criminal or civil sanctions, the

position is that there is a freedom or a liberty to

engage in the relevant conduct, just like what is

colloquially called the right to cross the street.

It is a freedom or liberty that arises because

there is no impediment, or there may be no

impediment, in either the criminal or the civil
law.

We proceed, if the Court pleases, to the question whether the implication descends to

communications about political affairs at the State

level. We refer to the views of the majority of Your Honours in the Political Broadcasting case. With respect, we regard the passages referred to

there as correct and see no reason why they should

not be followed as stated in those judgments.

We next proceed to submit that the test is not whether the common law, which is in issue here, is

the most reasonable solution, the test that emerges

from the Political Broadcasting case and earlier,

Nationwide News v Wills, is whether the law in
question is within the range of reasonable
solutions to the balance of the competing interests

involved, and we then submit, with respect, that it

would be somewhat surprising if the current common

law rules were outside the range of solutions that

can be considered reasonable, given that the courts

have sought to develop the common law with a

concern for justice and reasonableness. Of course

there are occasionally problems where the court

finds that because they may be dealing with a very

old and entrenched rule that it might not be clear

what alternative would be better. It may be that

there are alternatives that are best left to
legislative solution and give a case which typifies

that sort of situation. But so far as the law of

defamation is concerned, we are not aware of any

such impediment to the development of the common

law to accord with what is reasonable. It may be

that legislatures could take other views, that
there is a better solution, but that is not the

issue, in our respectful submission, here.

Theophanous 188 16/9/93

So far as the common laws requirement of truth in the typical situations that are relevant to this

case, we have given, in paragraph 12, some

hypothetical examples which suggest that it is far

from unreasonable for the common law to require

truth as a defence, or as part of a defence, in
these cases where people are publicly defamed
through the mass media. We do not, with respect, see it as at all unreasonable that if a newspaper

has published accusations that a member of

Parliament has voted in a particular way, or a

judge has decided in a particular way, because of

some private financial interest, if that statement

is untrue, we would see it as perfectly reasonable

that there should be an action for damages.

The factors which go into that assessment of the reasonableness, we have listed some of them

there at the end of our paragraph 12, in

particular, the chilling effect on the entry to

public life; reference is often made to the

chilling effect on freedom of communication, but

there is a chilling effect on entry to public life

if there is to be no opportunity for people

attacked in those ways to vindicate their
reputations with a trial as to the issue of truth.

Generally on that aspect of the issues, if the

Court pleases, we would adopt what has been put by

the plaintiffs and what is to be put by my friends,

the Solicitors-General for the States.

Finally we draw attention to the fact that in

Nationwide News v Wills this Court held that

legislation imposing a criminal sanction on

unjustified criticism of the Industrial Relations

Commission was compatible with the constitutional implication, and we would see that a common law

rule imposing the sanction of damages for untrue

criticism must be similarly compatible with the

implication. In our respectful submission, it is

difficult, if not impossible, to draw a distinction

between the two. If the Court pleases.

MASON CJ: Thank you, Mr Rose. Mr Solicitor for Western

Australia?

MR PARKER:  If it please Your Honours, we would commence,

not as dramatically as that might have suggested,

respectfully adopting the submissions of my learned

friends, Mr Hughes' and of Mr Castan's, so far as

they are referable to the Western Australian case.

It will be readily apparent that some aspects of

our submission are intention with passages in the

reasoning of some of Your Honours in the ACT TV and

Nationwide News cases. Your Honours have had full

reference to those passages in the last two days.

Theophanous 189 16/9/93

For that reason we have refrained from further specific reference.

Now, in the Stevens' case the publications

which found the action solely concern the fitness

of members of the State legislature to hold that

office, and their conduct as members of a committee

of a house of the State Parliament. That
committee's functions being to supervise State

statutory authorities. There is no hint of any

matter of relevance to the federal Parliament, or

of any federal issue. In that setting, as we

understand it, there are two principal foundations

on which it is said that an implication reaches

from the federal Constitution so as to strike down

any legislation of the State, or to alter the

common law, in so far as the legislation or the

common law impedes comment solely referable to such

State issues.

The first of those foundations is that the

Commonwealth Constitution so depends on or enshrines representative democracy in each of the

State Constitutions that an implication of freedom

of political comment and, therefore, a limitation
of State legislative power to deny it, is to be

implied in each State Constitution. The second is

that the nature of the freedom of political comment

to be implied in the federal Constitution to

support the federal parliamentary structure is

indivisible, so that it must follow that no power to limit that freedom, in respect of any subject-

matter of political comment, can exist in any State

Parliament.

The first six of the submissions in our

outline are directed to aspects of the first of

those two contentions and submissions 7 and 13 to

aspects of the second. In respect of the first,

submissions 3 to 6 are in support of the

proposition set out in our first paragraph, and may

I make these general comments.

The people of the colonies who framed and

approved the federal Constitution relevantly were

concerned to establish a structure for the new

federal Parliament and to establish it as an

institution of representative democracy. They also

were to provide for its future functioning as such

an institution so that it sustained the character

they desired for it, and to equip it with only

those legislative powers thought necessary or

appropriate for the central parliament. To achieve

this, inter alia, they made express provisions

concerning the nature of the houses, their

representative character of two different types,

the Representatives and the Senate, and made

Theophanous 190 16/9/93

provision for the electors, both temporary until carefully defined restrictions. All this
Parliament otherwise provided, and enabled the

established a representative parliamentary

democracy at the federal level.	By section 128
that was entrenched.

The Australian colonies at the time of

federation each had representative legislatures, at
least in the lower house, although with much

variation in form. The representatives of the

colonies who framed the federal Constitution and
the people of the colonies who approved it were not

concerned, however, in our respectful submission,

to effect any change in their own established

parliamentary systems.

We would submit that that is true as a matter of historical fact. It is apparent from the

Convention Debates. It is confirmed by the absence
of express provisions to this effect, and by those provisions of the Constitution which recognize the

persistence after Federation of the significant
variations between the established colonial State

structures, particularly as to franchise.

In some respects they expressly subjected the

new federal Parliament to limitations which they

were not concerned to impose on their own

parliaments - Sl(xxxv), acquisition of property on

just terms; 80, trial by jury; 116, freedom of

religion, are examples. The experience of the

people of the colonies had shown that at the State

or colonial level citizens' rights were adequately

and best left to the common law in association with

the doctrine of parliamentary sovereignty.

In these matters, while entrenching federal

characteristics, they were content to leave to

their own control without fetter the future nature
of the existing legislatures.	The choice of

particular limitations at a federal level does

nothing, we would submit, to suggest that the

people of each of the federating States chose to

establish those same limitations at a State level.

That has even greater force, we would suggest,

where a limitation of legislative power is to be

implied from the structures of the system created

for the federal Parliament. The implication

identified in Australian Capital Television and

Nationwide News arises out of such a structure.

We would submit that the structural aspects of the Commonwealth Constitution reflect only the

structures chosen by the people for the government

of the Commonwealth. They do not demonstrate a

Theophanous 191 16/9/93

desire to entrench those structures at a State

level. For example, a strict separation of

legislative, executive and judicial powers was

established and entrenched for the federal

structure with significant implications for federal

legislative power and governmental organization.

Nothing equivalent existed or was thereby imposed

on the States.

Responsible government was established at the federal level, more particularly as to form than in

any existing State system. In our submission, the

same can be said for representative government.

The structures of representative democracy and the

form it was to take was established more

extensively and with greater precision than in any

State system at the time, and particularly so by

sections 7 and 24 and the entrenchment of section 128. But, there is no equivalent

alteration or entrenchment at the State level.

While it may be correct to say that the federal Constitution recognized that in 1900 there

was a representative legislature in each State, at

least for the lower House, we submit for the

reasons that we have set out at length in

paragraph 5 of our outline, that there is nothing

in the expressed terms of the federal Constitution
which guarantees the representative nature of State

parliaments. It is the import of all of these

submissions, that an implication of such a

guarantee cannot validly be drawn from the federal
Constitution.

In short, the people of the federating colonies and their representatives were confident

of themselves to manage their own institutions and

affairs, but were not at ease with a new parliament

and government in which forces of other colonies

might hold sway.	So they came to establish new
federal institutions subjected to many limitations

and controls which were entrenched in many ways,

but did not think it appropriate or necessary to

make equivalent changes at the State level.

The federal compact was satisfied by limiting

the State's powers and institutions only to the

extent necessary to ensure the federal aspects of

the new federal creation. The express limitations

which extended to the States were all in the

context of ensuring aspects of the new federal

structure.	We would mention sections 90, 92, 114,
117 and 118.

To say the least, it would be anomalous if in

a context where the only express limitations

directed to the States were to ensure the desired

Theophanous 192 16/9/93

federal structure that an entirely disparate and non-federal implication directed to the internal functioning of a State should arise by way of

necessary implication.

In these respects the attitude and objectives

of the representatives of the colonies who framed
the Constitution and the people who approved it can

be seen to reflect the position that had obtained

when the United States Constitution was formed and

established. We have in paragraph 3 given

Your Honours a reference to Barron v Baltimore,
(1833) 7 Pet 242, 8 Lawyers Edition at 672.

Your Honours have copies of that provided. May I

just take Your Honours to page 247 of the Peters,
674 of the lawyers' edition, where the judgment of

the court was delivered by

Mr Chief Justice Marshall. Commencing at the

second paragraph of the opinion:

The plaintiff in error contends that it

comes within that clause in the fifth

amendment to the Constitution which inhibits

the taking of private property for public use

without just compensation.

It was a Fifth Amendment case.

He insists that this amendment, being in favor

of the liberty of the citizen, ought to be so
construed as to restrain the legislative power

of a State, as well as that of the United

States .....

The question thus presented is, we think, of great importance, but not of much

difficulty.

The Constitution was ordained and

established by the people of the United States

for themselves, for their own government, and

not for the government of the individual

States. Each State established a constitution

for itself, and in that constitution provided

such limitations and restrictions on the
powers of its particular government as its

judgment dictated. The people of the United

States framed such a government for the United

States as they supposed best adapted to their situation, and best calculated to promote

their interests. The powers they conferred on

this government were to be exercised by
itself: and the limitations on power, if

expressed in general terms, are naturally,

and, we think, necessarily applicable to the

government created by the instrument. They

are limitations of power granted in the

Theophanous 193 16/9/93

instrument itself; not of distinct

governments, framed by different persons and

for different purposes.

If these propositions be correct, the

fifth amendment must be understood as

restraining the power of the general

government, not as applicable to the States.

And so the case held. Now that case is the

law today and it was the established law when our

framers came to be developing our own Constitution;

it is, in our submission, apposite and instructive.

We submit this reflects what the people of the

Australian colonies achieved by the federal

Constitution, both as to intention and effect. In

this respect my comment that covering clause 5

makes no difference, as article 6 section 2 of the

United States Constitution was to like effect, yet neither then nor now does this import into State

law and constitutions even the express personal

guarantees of the First Amendment.

It was in virtue of the interpretation of the Fourteenth Amendment, and only after 1922,

especially because the Fourteenth Amendment

expressly precluded the States from - and I quote

roughly - making or enforcing any law which shall

abridge the privileges and immunities of the

citizens of the United States. The States were

expressly precluded from that and it was by that

that the provisions of the express personal

privileges of the Bill of Rights have been held to

apply directly to limit legislative, executive and

judicial power of the States.

Now as I said, this has occurred since 1922

and we have given Your Honours a reference on

page 5 of our outline in the top section,

paragraph 6, to Malloy v Hogan, (1964) 378 US 1 at
page 4, and the Lawyers Edition reference is given.

case Justice Brennan of the United States Court, at I will not ask Your Honours to turn to it. In that	the passage indicated, outlines conveniently the
history of the development of the reliance on the the express protections of the Bill of Rights into
the State constitutions and judicial systems, and
he has summarized all the cases and how that
process has occurred since 1922.

In that process, the significance of the role

of the Fourteenth Amendment as an express guarantee of individual freedom and of the Bill of Rights, as

distinct from the Fourteenth Amendment's other role

of maintaining the political system, was

emphasized. And we have also given to Your Honours

Theophanous 194 16/9/93

a reference, which is to be found on page 6 of our

outline, in paragraph 7 at the end, to Curtis

Publishing Co v Butts, (1967) 388 US 130 - again I

will not ask Your Honours to turn to it - and
especially at page 149 Your Honours will see

attention drawn to the importance of distinction

between an express personal right and the operation

of the Fourteenth Amendment quite distinctly as

sustaining the political institution.

Having regard to these considerations and to those set out more fully in the written

submissions, it is our submission that it should

not be concluded that any implication as to the

structure of State Constitutions, or their

representative nature, should be implied from the
federal Constitution. In particular, that the

federal Constitution does not enshrine

representative democracy in State Constitutions,

and there is no consequent implication from the

federal Constitution of freedom of political

comment.

In respect of the the second of the matters to

which we drew attention at the beginning, whether an implication of freedom of political comment to

sustain the federal system of representative democracy requires, of necessity, a right of

political comment on any subject, may I just make

these brief points and, in essence, this is

something of a summary of the points we have made

in paragraphs 7 to 13.

A legislative prohibition which is implied

into a Constitution by reason of the structures,

which are created by it, must always, we would

submit, remain referable to the structure which

created it. It is inappropriate having identified the implied freedom in this case as arising out of the need to sustain representative democracy. It

is inappropriate then to divorce the implication

from its foundation and to develop it as if it were

an express freedom which guaranteed freedom of

speech for any citizen. As a consequence, we would

submit, it is necessary when faced with a

legislative measure, which is sought to be impugned

on the basis of the implication, not to ask, "Does

this measure restrain freedom of speech?" but,

"Does this measure threaten the structure of

representative government?"

The implication arising from the federal

Constitution, which has been identified, is the maintenance of the representative character of the

federal Parliament. The implication arising from

the representative character of the federal

Parliament carries with it the freedom of speech

Theophanous 195 16/9/93

necessary to sustain that system. It does not

carry with it, we would submit, a right at large to

discuss the private affairs of private citizens	1
for such affairs generally would not arise from	or

affect the conduct of the federal Parliament or the

choice of its members. Occasionally there may be

some connection.

Similarly, the freedom implied from the

Commonwealth Constitution does not carry with it a

right to discuss the affairs of State or local

governments where there is no connection with the

Commonwealth Parliament. It may often be the case

that State and Commonwealth affairs are interlinked

as, for example, in complementary legislation or

State expenditure of section 96 grants, et cetera.

In such cases, we would submit, the freedom extends

to whatever is necessary for full discussion of

Commonwealth affairs.

However, as with private citizens, there will

often be State or local government affairs with no

Commonwealth element and we would submit that this

case affords an example. In such cases any

relevant freedom can only derive from, and its

content be determined by, the Constitution of the

State alone.

As a quite distinct issue from the matters we

have put so far, we should make it clear that it is
not the effect of our submissions that a State

Parliament has power to legislate so as to restrict

political comment in such a way as would impede the

proper functioning of the federal Parliament as an

institution of representative democracy. In our

submission, that is so not because of any implied

individual freedom of political comment which

reaches or affects the State Constitution in some

way and arising either from the federal or the

State Constitution, but it arises on a quite

distinct basis as a necessary concomitant of the

establishment of the Federation itself, that is,

the Melbourne Corporation doctrine which is founded

squarely in the essential nature of a federal

system and operates as a restraint on legislative

power of any parliament within the Federation, we

would submit, so that it may not impede the proper

functioning of an essential element of any other

polity in the Federation.

May I make two brief submissions in respect of

the common law. We would submit that it has two

particular relevances. First, when deciding

whether the implication is necessarily to be drawn
that the intended scope is wider than merely to

constrain legislative conduct, that is, whether of necessity to achieve its object it is necessary to

Theophanous 196 16/9/93

enshrine a private right in all citizens, we would

submit it is compelling that the Constitution was

not enacted in a legal vacuum but against the

background of an established legal system in each

colony State. That legal system was either common

law or common law and statute, according to the

colony, and in each of the colonies representative

legislatures existed and flourished.

Those established legal systems enabled public

political comment and struck balances with

competing public and private interests such as

personal reputation, but Your Honours will
appreciate there are many more balances that need
to be struck when considering the full spectrum.

Now, to draw an implication which reaches beyond a limitation of legislative power would

require, in our submission, a conviction that those

existing legal systems - and for the purposes of

Western Australia, the common law - were perceived,

or would have been perceived had attention been

directed to the issue, at the time of Federation to

be inadequate for the purpose of sustaining

representative democracy.

To the extent necessary for this purpose, we

would again draw attention to the Melbourne

Corporation, founded as it is not on any enshrined

personal right, as providing all that is necessary

by way of limitation on State legislative power.

There is, we would submit, therefore no necessity

for any wider implication than an implied

limitation on federal legislative power.

The second significance we would submit should be attached to the common law in this matter is

this: if, as it is contended, a private right of

political comment is a necessary implication and

whether at the federal or the State level, we would

pose the question: can it be shown that the common	law fails adequately to reflect the full measure of
that right? If its object is to protect
representative democracy, absent any evidence that representative democracy is unable to be sustained
under the common law and the established legal systems, the experience of 93 years tells us quite to the contrary. In our submission, there is no justification for a necessary implication that the
right must be more extensive than the common law
allows or that the existing legal structures in
common law States allows.

There is one further aspect relating to the

common law. It has been put that it would be

anomalous if the constitutional implication only

precluded impediments to the proper functioning of

Theophanous 197 16/9/93

representative democracy where those impediments

were found in post-1900 legislation. It would be

extraordinary if it had been thought that

impediments existed to representative democracy in

pre-1900 laws, and yet the means chosen to remove

and incredibly slow process of

those impediments were not expressed in the unpredictable

constitutional implication. It is more logical and
consistent with historical fact, we would submit,

to take the view that it was a basic constitutional

premise that the common law was a fundamental

substratum on which the Constitution was

established and, where there had been legislative

development of the common law, our submission would

extend to that for those colonies.

May I now turn to some specific consideration

of the Western Australian Constitution so far as it
is relevant to the Stephens' case.

The WA Constitution Act, 1889 was an Act of

the WA legislature, although there was an Imperial
Act to authorize Her Majesty to assent to it. That

was thought to have been necessary because of

treatment of wastelands in the Act.

There was no section 73(2) in the original

Constitution, and I think Your Honours have an

extract giving Your Honours section 73. What is

now section 73(1), with just grammatical changes to

the introductory words, was section 73 of the
original Constitution, and it required only

absolute majorities and reservation, et cetera, where there was a change to the constitution of

either legislative council or the legislative

assembly, but otherwise provided that -

the Legislature of the Colony should have full power and authority, from time to time, by any

Act, to repeal or alter any of the provisions

of this Act.

It was not until 1978 that subsection (2) was

added.	It was added by an amendment made by the
Parliament itself.	The 1978 amendment did not

introduce any change to the structure of the
Parliament or to the electoral system. It accepted
the existing structure. Its object and express
manner of operation was to fetter the capacity of
the Parliament to introduce change in respect of
the established structure, the structure which had
been established for some 90 years at the time the
measure was introduced; and the primary objects of

that fetter were the office of Governor, the

bicameral nature of the legislature and

representative parliamentary democracy.

Theophanous 198 16/9/93

Relevantly, in the view of the legislature as

revealed in the 1978 amendment to introduce

subsection (2) to section 73, WA had a system of

representative parliamentary democracy in 1978, one

of long standing, which was not to be changed, but

which the Parliament wanted to keep, and so far as

freedom of political comment in the community

concerned a system of representative democracy that

had been sustained by the common law since 1889,

assisted since 1913 by the three additional Code

defences that have been mentioned to Your Honours. Those had proved well and truly adequate to ensure

a healthy representative parliamentary democracy.

The object of section 73(2) was to ensure that

the Parliament could not effect any change in the

existing structure, including so far as it

impinged, the common law in a way which was

inconsistent with the system of representative

parliamentary democracy that was so established

unless the Parliament first took the matter to the

people in a referendum.

In that context, the sole object, we would

submit, can more readily be seen to restrict the

pre-existing legislative powers of the Parliament.

Thus, and on that footing, the enactment of

section 73(2) provides a quite sterile basis for

the implication of necessity out of the

Western Australian Constitution of a new private

right of freedom of political comment. They are

our submissions, if it please the Court.

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

South Australia.

MR DOYLE:  I think Your Honours have our outline.

MASON CJ: Yes, we have.

MR DOYLE:	If the Court pleases, we submit that the relevant implication operates as a limit on Commonwealth	legislative power and it is wholly expressed as
such and has no effect on State legislative power
or the content of the common law, and I will develop that point in a moment.

In our outline in the second section, we have

focused on the impact on the implication on powers

of State parliaments. We probably should have

included there a reference to the common law as
well. Could I just say something briefly about the

implication and the common law. If the implication

is, as we submit it is, solely one in terms of

Commonwealth legislative powers, then obviously it

affects neither common law nor State legislative

powers. However, if the implication does restrict

Theophanous 199 16/9/93

State legislative powers, then presumably, it seems

to us, it is also an implication with the capacity

to control the content of the common law because,

presumably, the implication is then being expressed

as "no law shall interfere with freedom of speech"

rather than "the Commonwealth shall not by a law of
the Commonwealth Parliament". If it is of that

wider type, then the common law would be unaltered

as a result of the implication, only if and because

its content was found to be consistent with the

requisite freedom.

We do accept that the Constitution has the capacity to alter the common law, although the

occasions for that would be few, although our

submission is that in this particular area, no

implication can or should be drawn that it does

alter the common law. An illustration of its

capacity, although one that ultimately was not

fulfilled, would be in relation to choice of law

rules. One can at least apprehend the argument

that the Federation required a change in the common

law choice of law rules. The Court, by a majority,

concluded that it did not, but I am simply

identifying that as an area where the issue would

arise: does the Constitution require an alteration

of the common law?

But, in our submission, an implication that

the Constitution does alter the common law is not

lightly to be drawn, bearing in mind the way in

which the Constitution itself seems to be premised

on the common law, and if one concludes that an

implication affecting the common law is not to be

drawn in this case then reciprocally, in our

submission, one would tend to conclude well, it is

all the less likely that there is an implication

effecting State legislative powers. Because it

would be odd, in our submission, if the implication

reached only to one and not the other, because that

would lead to the oddity to which Mr Parker alluded	a few moments ago, that a State statute in the same
terms as the common law would be within the reach
of the implication, but the common law in the same
terms would not be within the reach of it. Now,
nothing is impossible, but that does seem odd.

In our respectful submission then, coming to

the nature of the implication, free speech in the

Commonwealth is protected, first of all, by the

limit on Commonwealth legislative power; secondly,

by Commonwealth legislative action, as appropriate;

and thirdly, by the Melbourne Corporation

implication, and not by the particular implication,

and as to the particular implication identified by

the Court, no further than by way of a limit on

Commonwealth power.

Theophanous 200 16/9/93

Could I then put, briefly, our submissions as

to why the implication should be seen wholly and

solely as a limit on Commonwealth power.

Your Honours, the reason the implication is drawn

is because the Commonwealth Parliament lacks the

power to alter the Constitution. The Commonwealth

Parliament has no power to alter the provision of the Constitution relating to its own composition and, likewise, no power to alter things necessarily

implicit in its composition. It is significant to

bear in mind, in our submission, that section 128

is not a prohibition, or a limit, on the powers of
the Commonwealth Parliament. It simply lacks the

power to alter the Constitution, or its own

composition, and such power as there is is
conferred on the Parliament and the people together

through section 128. Lacking that power, in our

submission, the express powers that it does have,

have to be construed so as not to allow the

Commonwealth Parliament to do indirectly, by

attacking necessary incidents of representative

democracy, what it cannot do directly, remove the

elements of representative democracy from the

Constitution.

So, we start simply that way, and put the

submission that we are not dealing with the

guarantee, we are dealing at this stage with an implication limiting legislative power, and the

relevant contrast was drawn by Your Honour

Justice Brennan, I am not sure which of the two

cases it was, where Your Honour referred to the

United Kingdom Parliament. There, of course, in a

sense, the same freedom of expression exists, but
because that is an uncontrolled Constitution no
implication can be drawn because the United Kingdom

Parliament has power to change that flexible Constitution. So, it would be pointless and contradictory to draw any implications on the basis

of the freedom. So, in our respectful submission,

we start with what looks like not a guarantee but a

limit on Commonwealth power.

When we move to the States, certainly we find

that the States lack the power to legislate

directly with respect to the composition of the

Commonwealth Parliament or how it is chosen or its

structure. Again, there is simply a lack of power,

and we identify briefly the reasons for that.

First of all, such legislation would not seem to be for the peace, order and good government of the

State. Secondly, it would just seem to conflict

with the Constitution. Thirdly, to be contrary to
sections 106 and 107. And, fourthly, to be

contrary to section 5 of the Australia Act.

Theophanous 201 16/9/93

In relation to the States, the question is,

"Now, is there any need to go further than that

simple lack of power?" In the case of the

Commonwealth, in our respectful submission, there

is because, to treat the Constitution as a coherent

whole, you cannot read its powers as enabling it to

do indirectly what it cannot do directly. But the

question arises, "Do you need to do the same thing

in relation to the, what I call the general State

legislative powers?", that is, the powers to enact

laws for the peace, order and good government of

the State and not, as I said, what it clearly

cannot do directly referable to the Commonwealth

institutions.

In our respectful submission, the State powers

are of a different order relevantly to the

Commonwealth powers in section 51. They are

exercised by reference to the affairs of the State
and they are preserved by the Constitution, of

course, subject to those limits in sections 106 and

107. But, in our submission, it requires a

compelling reason to read them down by a process of

implication and something more than the mere

process which we have identified in relation to

those powers in section 51 given to the

Commonwealth Parliament.

Of course, the Melbourne Corporation

principle, which is the result of an implication,

affects the States. It affects them both in their

relationship with the Commonwealth and in their

relationship with other States. But, in our

submission, that is an implication which arises

from the very federal structure and so obviously,

in our submission, it must affect States and

Commonwealth equally.

Likewise, we could take as an illustration

section 92, and one could further say, even if

section 92 was not there, Crandall v Nevada

suggests that a somewhat similar implication would

have been drawn. Again, that is an implication

about the nature of the Federation and, in our

submission, that also must affect the States as

much as the Commonwealth.

In our respectful submission, in the present

case we are dealing with an implication relating to the powers of one of the organs of the Commonwealth

and there is not the same necessity or compelling -

by that I mean the Commonwealth Parliament -

necessity, to draw an implication about the States'

general powers. So, in our respectful submission,

the relevant implication should, analysed that way,

be seen as an implication solely affecting the

legislative powers of the Commonwealth.

Theophanous 202 16/9/93

BRENNAN J: 

I do not quite follow that, Mr Solicitor. Are

you saying that under Melbourne Corporation the
States would not have legislative power to

interfere with a freedom of speech essential to

Commonwealth political activity?

MR DOYLE: 

What I am saying, Your Honour, without attempting

to be specific, is that the Melbourne Corporation

implication could, in certain circumstances, have

work to do in this area because State legislation

could so hamper the operations of a Commonwealth

institution that one would say that the legislation

fell within the principle.	So it is, in my
submission, an extreme case.

BRENNAN J: Is the hampering - or the limitation which

precludes the hampering the same for Commonwealth

and State?

MR DOYLE:  Could Your Honour just explain what you mean?

BRENNAN J: In other words, if the Commonwealth Parliament

is limited in the laws that it can pass so as to

preserve the necessary freedom that is essential to

extent?

the representative democracy of Commonwealth

institutions, is it not the fact that the State

MR DOYLE:  No.

In our respectful submission, the implication Your Honour referred to applies only to

the Commonwealth and not to the States. To the

extent that there is a fetter on the States it will

come through what I will call the Melbourne

Corporation implication and so will not operate in

the same way - - -

BRENNAN J: Whatever its basis may be, let it be assumed it

does come through the Melbourne Corporation, why is

its content any different from the content of the

limitation on the Commonwealth powers?

MR DOYLE: Because, Your Honour, in our respectful

submission, to give it the same content would be contrary to what we submit is another feature of the Constitution, namely, the preservation of the

State powers. I do not mean in any reserve power sense, but the continuation of the State powers to

make laws for peace, order and good government.

One does not imply a fetter on those powers unless

there is a compelling necessity. The necessity to

preserve the elements of the Federation in the

States and the Commonwealth is obviously a

necessary implication and, in so far as the law

struck at the existence of those elements, it would

be caught. In our respectful submission one does

not draw the implication which would seem to have a

Theophanous 203 16/9/93

much wider ambit, the implication limiting

Commonwealth powers in relation to freedom of

discussion.

DAWSON J: But in so far as the State attempted to direct

its legislation to the Commonwealth sphere, what

His Honour said would be correct, would it not?

MR DOYLE:	Yes, a simple lack of power - - -
DAWSON J:	You are thinking of an inability of the State to control its own democratic processes.
MR DOYLE:	Yes, Your Honour. Yes, certainly I can see the

State - - -

DAWSON J:  I think His Honour had in mind - I am not sure -

what I was saying was that he was speaking of a

State law directed to the Commonwealth - - -

MR DOYLE:  I see, well I misunderstood Your Honours.

BRENNAN J: Or applying to.

DAWSON J: Yes.

MR DOYLE: Well, directed to, but a law of perfectly general

import that the people of the State shall not. In

my respectful submission, if it could be shown that

that general law, "the people of the State shall

not", was in some way in its practical working out,

such as to prevent the existence of the

Commonwealth as such, it would be caught by, then,

the Melbourne Corporation principle again, but not

caught by the implication, which applies to the

Commonwealth, namely that a law shall not interfere

with freedom of speech.

BRENNAN J: Let us say the State law said, "No person in the

State shall publish of or concerning any public

figure any defamatory material". Full stop. Now,

does that in any way affect the problems that we

are addressing in terms of the Commonwealth's

institutions?

MR DOYLE:	I would submit not, Your Honour, although obviously a judgment has to be drawn as to the
significance of that impact. But could I approach
it this way, and this was a point I wanted to make,
Your Honour, because in a way what Your Honour is
putting to me is one way of testing my submission,
namely saying, "Well, is this an acceptable result
or would it lead to consequences which suggest that
your reasoning cannot be right?" In our respectful submission, the answer to many of these problems
still lies in action by the Commonwealth Parliament, rather than saying, we must find in the

Theophanous 204 16/9/93

Constitution things which will prevent problems

arising. Could I just illustrate it this way. The

Constitution establishes this Court and gives it

original jurisdiction.

Now, if the Commonwealth Parliament were to repeal the Judiciary Act, the Court would still

have its jurisdiction and its inherent powers, but

its functioning would be significantly hampered

because it would lack the statutory powers given to

it by the Judiciary Act, and if the Parliament

denied it the funds for adequate staff, its

workings would be significantly impeded.

The point I make is that even in truly central

areas of the Constitution, we do not find in the

Constitution either provisions or implications

which, as it were, ensure that everything will work

smoothly. So, in my respectful submission, it is

not, as it were, a constitutional oddity to say,

"Well this is strange, the Commonwealth Parliament

cannot interfere with the freedom of speech need to

sustain representative democracy, but you,

Mr Doyle, are allowing to the State parliaments, powers which could interrupt or get in the way of the exercise of that freedom."

My submission is that the Constitution just

goes so far and in our system, with the place the

States have, it is not what I would call a

constitutional oddity to contemplate State laws

which then intrude into the area which the

Commonwealth cannot enter because of the particular

implication restricting its powers. But I have to

concede that if, in the end, a judgment was made

that a law, of the type Your Honour postulated,

prevents the Commonwealth continuing to exist as

such, or whatever the precise words are, I have to

say, "Well, if that law falls within the Melbourne

Corporation principle, so be it", but it is caught

by that principle, not by an application to the

States of the same limit as applies to the

Commonwealth.

DAWSON J: A law which said that no one shall publish

defamatory material in relation to Commonwealth

elections - a State law - would clearly fall within

the Melbourne Corporation. It is very hard to see

why a general law, which has the same content in

relation to the Commonwealth, would not also.

MR DOYLE:  It may, although then we are debating the

application of my principles to particular cases,

and judgments can differ as to how they would work

in particular cases. But certainly the law which

said, "No person shall do X at a Commonwealth

election", or, "No Commonwealth candidate shall do

Theophanous 205 16/9/93

X", would arguably simply fall as not supported by

any State power anyhow, because it is a law simply

not for the peace, order and good government of the

State; it is a law in terms directed to a

Commonwealth matter.

Your Honour Justice Brennan really led me on

to the next way I was going to approach the

question, namely looking at the result of my

submission and saying, "Is this so odd that in

effect it drives me to say it can't be right."

That was my first way of testing it, to use the

illustration of the position of this Court if the

Judiciary Act and any other supporting legislation

were repealed.

Another way of looking at it is, in our

respectful submission, to consider how is the

relevant principle best expressed. Certainly the

principle so far identified, in our submission,

would be best expressed as, "The Commonwealth shall

not by any law abridge freedom of speech in

relation to ..... " - just however you formulate it -

"unless ..... ", just precisely how you formulate the

qualification. It is interesting, as has already

been observed, that that is in fact very similar to

the First Amendment in the United States which
begins, "The Congress shall not". Although it is

absolute, there is no "unless" there, although the

way the Supreme Court has interpreted the First

Amendment, there are qualifications.

But the point I seek to make here is this, and

it is very similar to the point made by Mr Parker,

although I hope I am not into the area of undue

repetition. In America it was not seen as

necessary until the Fourteenth Amendment for the

federal judiciary to intrude into State law to

preserve the requisite freedom at the federal

level. In other words, the United States by the

First Amendment put a limit on the United States

Congress. It was not seen necessary until the

Fourteenth Amendment, and then by an express

amendment, as ultimately interpreted in about 1925

in Gitlow, to reach into the State law.

Granted, of course, the State Constitutions of

the early States had in them their own guarantees,
but the point I seek to make is that it did not
follow by implication that the limitation on the

Congress meant that from the United States

Constitution, some similar limitation flowed to the

States. The only limit on the States was their

self-imposed limits through their own State

Constitutions. So again, in that sense, in my

respectful submission, American experience suggests

that it is not again a constitutional oddity that

Theophanous 206 16/9/93

the relevant limitation should affect only the

central government.

Another way of looking at it, Your Honours, is

to consider section 116. We know from Quick and

Garran and the debates that the history of that

section is rather confused but, to the extent that

it provides for what I will loosely call freedom of
religion, the fact is it provides for it only in
relation to the Commonwealth Parliament, and it was
not seen, once again, as an oddity by the founding
fathers that the provisions should be so limited,

leaving it free to the States to enact laws which

would intrude on freedom of religion. So there we

have, in our submission, a replica of what we are

urging here:  a limit on the Commonwealth which

does not apply to the States. The same comment can

be made about section Sl(xxxi) requiring just terms

in relation to the acquisition of property:	a
limit on the Commonwealth not applying to the States.

Alternatively, one can say, "Well then,

looking at the argument advanced against us, what

is the source of this wider implication?" In our

respectful submission, to some extent the argument

for the defendants tended to proceed along the
basis, "Well, there is a substantive guarantee",

without spelling out clearly how one got it, and

then to say, "therefore, that must affect State

powers." Obviously, if you start with the premise

that there is a substantive guarantee, it is not
too difficult then to reason on to the effect on

State powers. But in our respectful submission,

and the point I seek to make, one has to start by

looking much more closely at what is the beginning

point .

Some of the submissions, Your Honours,

referred to the federal compact.	I do not think
Your Honours will need to go to it again, but could	I just remind Your Honours that in paragraph 4.6 of
Mr Merkel's submissions appears the proposition -

the constitutional guarantees of free speech

springing from those compacts -

that is, the American and Australian federal

compact -

have similar bases in policy.

In our respectful submission, the federal compact

simply does not get one anywhere here.	In my
respectful submission, what appears in

paragraph 4.6 is very vague, the notion of the

guarantee "springing from the compact". But if the

16/9/93

. Theophanous 207

compact means the will of the people as distinct

from just a nice phrase for "the Constitution", in

our respectful submission, the arguments would be

exactly the same in this case were our Constitution

identified solely as an enactment of the United

Kingdom Parliament and minus the preamble with the

reference to the will of the people; and let us

assume further there had been no referenda in the

late 19th Century.

In other words, we would approach in this case

the interpretation of the Constitution in exactly
the same way were it or were it not preceded by

some form of compact of the people. So, in our

respectful submission, it advances the matter

nowhere to refer rather loosely to the federal

compact.

Could I also say in that context,

Your Honours, that although we support the result

contended for by Mr Castan we would likewise differ

from the considerable emphasis placed by him upon

the federal compact. His argument was that from

the federal compact flows the notion that the

people have certain rights, and in some way that

those rights cannot be intruded upon. In our

respectful submission, that proposition is either,

with respect, a truism or wrong. If it simply

means that except to the extent the Commonwealth

Parliament has power to do certain things, the people are therefore free - in other words, turning, as it were, the boundary of legislative

power, the other side of it, into a freedom, that

is just a truism to say, "I am free to do what the

Parliament cannot stop me doing".

But in so far as it implies that there are

freedoms which exist, it must be wrong, because if

we take freedom of religion, unless section 116

were in the Constitution in no sense could one say
that an Australian has freedom of religion, and yet his whole proposition seems to be that these rights somehow do exist. In paragraph 2.15, he says -

the "right" to freely practice one's religion

needs and obtains no constitutional
recognition.

He says it is there in the notion of the federal

compact. In our respectful submission, that cannot

be right, and as I put, his submission is either a

truism or it is wrong.

One could again take section 92 or the

Crandall v Nevada implication. One could not say that, as it were, exists outside the Constitution.

That implication of freedom of movement can only

Theophanous 208 16/9/93

arise from the Constitution, and one can in no

sense say that it exists outside the Constitution.

So we would, with respect, dispute the general relevance of the federal compact in this area, and

in particular the reliance placed upon it by

Mr Castan, in particular in paragraphs 2.15 and

2.18, where again he says:

Neither the Constitution, the Parliament or the Courts can confer fundamental rights on the people of Australia, for they are already

possessed of them.

We submit that those rights can be found, if at

all, only in the Constitution, and the feature of

ours is that they generally do not exist and that

what we have are limits on Commonwealth power.

The other source of the conclusion which we

oppose was that advanced by Mr Jackson, the right

to vote, and the words as I took them down were,

"That the foundation of freedom of speech is

ultimately the right to vote and that is protected

by law."

On that we would, with respect, adopt the

submissions of Mr Hughes, who exploded the premise

on which that was based, because section 41 is

historical and under section 30, parliament defines

the franchise, and so the vote is conferred by law

of the parliament. We simply know from history

that infants can be excluded, women can be

excluded, non-property holders have been excluded,

and so one cannot find a constitutional right to

vote, except in this very indirect sense that one

can say the notion of representative democracy

tells us there will be a process of voting. But,

one cannot find in the Constitution an individual
right to vote which can be the source of an

individual right to say things about other people

or to participate in speech.

Could I also make one other point about

Mr Jackson's submissions when he dealt with

constitutional rights, because he submitted,

perhaps rather wistfully, that in this area there

surely must be some individual right, that it was,

as it were, barely to be contemplated that there

would not be rights as distinct from mere limits on

government power.

Could I again use section 92 as an

illustration of the way in which our Constitution

does not establish rights, and even in areas as

fundamental as section 92. The first point we can

make about section 92 is that a government does not

Theophanous 209 16/9/93

have to provide the means of movement. So, if

section 92 is there, there is no obligation on the

government to provide roads, trains or any other

means of moving from State to State.	So clearly,
there is no right in that sense.

Secondly, as Your Honour Justice Dawson

pointed out, if I am moving from State to State and

someone stops me, I may have an action for assault

or trespass, but I do not have an action for

infringement of some right, nor could I seek a

declaration about infringement of some right.

DAWSON J: That was shown by Justice Dixon in the judgment

of James v The Commonwealth, yes.

MR DOYLE:  Yes. The third point, Your Honours, which is

perhaps even more fundamental, that we do not have

rights in areas like section 92 and therefore
surely, we must have rights in relation to speech

or voting.

If at Federation I had been fortunate enough

to own a 30 metre strip up the

South Australian/Victorian border, I could have folded my arms and said I do not care about

section 92, no Victorians are coming into

South Australia, and no South Australians are going

into Victoria, and no one could do anything about

it. The government, of course, could acquire land

compulsorily and create a strip of land through my

land, but section 92 gives actually no right, even

in that sense, to cross my land to get over the

border. If I am a private land owner I can simply

sit there and say, "If you come on my land I will

sue you."

So, the right, which Mr Jackson suggested

exists and, therefore, must likewise be found in

this area of speech and voting simply does not

exist. That is, Your Honours, the first part of

our submissions, pages 1 to 3.

Just as to the scope of the implication which

has been drawn and which it is argued should be

drawn in relation to the States: our respectful

submission is, notwithstanding remarks already made

by four members of this Court and views expressed

in the Capital TV and Political Broadcasting case,

that the relevant communication should be

restricted by reference also to the occasion on

which it occurs. In other words, we would accept,

as Your Honour Justice Mason said, that almost

anything could be relevant to debate in the

Commonwealth Parliament. What we do not accept is

that, therefore, any subject-matter that is

relevant to debate becomes per se within the reach

Theophanous 210 16/9/93

of the implication. Our respectful submission is

that if that subject-matter occurs on a relevant

occasion then, of course, it receives the

protection, but that you cannot disengage, as it

were, the subject-matter from the occasion and, we

would submit, that any implication should be

limited to speech, and I would simply submit two

different ways of approaching it.

One is in the way Your Honour Justice McHugh

did in the Capital TV case, page 743G, column 2,

where Your Honour referred to "communication in the

course of the business of government of the

Commonwealth." We would respectfully submit that

that is an appropriate way of approach it, as long

as you do, as we would acknowledge, not interpret

"government" in a narrow, technical sense.

Another way, which we submit would be

satisfactory, would be a variation of the way

Your Honour Justice Gaudron expressed it, again in

Australian Capital Television Broadcasters,

page 737F, column one. There Your Honour expressed

it somewhat more compendiously by reference to

"Commonwealth, State and Territory governments,".

In our submission, again, that would be a

satisfactory expression of it if, in each case, you

deleted the reference to States.

In other words, in our respectful submission,

the occasion is relevant, and it has to be an

occasion in the course of the business of the

government of the Commonwealth. It is illustrated

by the difference between a person in South

Australia saying, simply, "The minister is

corrupt," which, in our submission, has, prima

facie, nothing at all to do with representative

democracy in the Commonwealth, and saying, "The

Commonwealth should act, in a given area, because

the minister in the area is corrupt." Then you may

have a link to Commonwealth matters. But, in our

respectful submission, some such link has to be

established.

Your Honours, could I then turn, briefly, to

the next point, namely, if the implication is drawn

how does it, as it were, apply. In relation to

State laws, presumably, the-test for infringement

would be same as it is in relation to Commonwealth

laws.

In relation to the common law, as we put in

our outline, it would seem to us in paragraph 14

that the concept of the margin of appreciation

probably would not operate here and it would seem

rather odd, really, for court when assessing the

common law, which is under the court's control, to

Theophanous 211 16/9/93

allow some margin of appreciation to its own

judgment. So presumably, in relation to common

law, the question is simply whether, as we put it

there, the law strikes an appropriate balance.

Your Honours, in our respectful submission it

does. We have provided to the Court - and in the

interests of time I will not read from them at

all - two items. First of all an extract from the

report of the Australian Law Reform Commission

dealing with the laws of defamation. It is

interesting, Your Honours, that first of all one

finds in that - could I just give a particular

reference, paragraph 148 - that when dealing with

qualified privilege the Law Reform Commission comes

to the conclusion that some modifications should be

made in the law but it distinguishes between media

defendants and others in relation to those, and

while it - if I can put it loosely - slightly
widens the scope of qualified privilege, it firmly

rejects the notion of so changing the law of

qualified privilege that the media will be

generally protected by publications in which the

public are interested, in the sense of interested

to hear.

The other thing which is interesting about the

Law Reform Commission Report, Your Honours, is that

in appendix F, which we have also provided to

Your Honours, it considers and specifically rejects

the American public figure approach and it

considers it in some detail and rejects it in

terms. We respectfully submit that that is useful

material as specifically Australian consideration

of the questions before the Court.

We have also provided to the Court some

extracts from another document - and again, I do

not think Your Honours need to read it, I have it

for you now - it is a paper "Reform of Defamation

Laws", a discussion paper published by the

Attorneys-General of Queensland, New South Wales
and Victoria.	My copy seems to be undated, Your
Honours.	I will check the date and perhaps we

could notify the Court after lunch.

Again, Your Honours, in the extracts we have

provided, Your Honours will find that, again
considering the matter in the Australian context,
those Attorneys all came to the conclusion also

that the American public figure approach should be

rejected and their reasons for doing that appear in

the pages which we have extracted and provided to

the Court.

Your Honours, there have been lengthy

submissions as to whether the common law does get

Theophanous 212 16/9/93

the balance right or not. Could I just add these

two or three very short points, that the common law

does reflect lengthy experience in our own

democratic tradition and, in our respectful
submission, one should not at all lightly conclude

that it does not get it right. In other words, in

our submission, there really is a fairly compelling

onus on those who say it gets it wrong to show it.

While Your Honours have had read to you many

passages from American judgments, we have to

remember those judgments are written in a different democracy and a different context. For example - I

think this emerges from the Sullivan case - in

America, government officials have an absolute

privilege in relation to statements made by them in
the course of their official duties. That is a
feature which was highly relevant to the American

decision in terms of striking a balance. That

privilege for government officials does not exist

in Australia. So we are dealing with different

traditions, somewhat different legal systems and,

in our respectful submission, it is simply not

enough to say that the Americans thought a

different balance needed to be struck. The

question is: where is the convincing argument that

our own system has not struck the right balance?

Finally, Your Honours, the last matter in our

outline, starting at paragraph 17, implications

from State Constitutions or from references to them

in the Commonwealth Constitution. Our respectful

submission is that no implication at all can be

drawn from State Constitutions. Could I put it

this way: the Commonwealth Parliament simply lacks

the power to alter the Commonwealth Constitution or

its own representative nature. The State

Parliaments have full power to do so subject only

to such limits as they have imposed on themselves

and bind them.

We know, Your Honours, from section 6 of the

Australia Act that certain limits, if self-imposed,

will be binding. Section 6 refers to:

a law made after the commencement of this Act

by the Parliament of a State respecting the

constitution, powers or procedure of the

Parliament of the State shall be of no force

or effect unless it is made in such manner and

form -

et cetera. Again, it is only a law made by the

Parliament of the State. It may also be - and

Your Honours do not need to decide it here, as we

indicate in paragraph 17(b) - that other self-

imposed manner and form requirements will bind.

Theophanous 213 16/9/93

There are those who would argue that section 6 says

it all here and that the only things that can bind
a Parliament are those falling within section 6

but, either way, still the only things that will

bind a Parliament will be self-imposed limits.

In our respectful submission, what they throw

up is the question: is the relevant law a law

which falls within section 6 and, if it is, then

has it been passed in the relevant manner and form?

You do not need to, and it would be inappropriate

to surround the specific prohibition then with some

wider implication saying, "Even though it's not a

law of the type caught by section 6 and therefore

having to be passed in the appropriate manner and

form, still you can't do it because of some wider

implication."

In our submission, the prohibition, as

distinct from the lack of power in the case of the

Commonwealth Parliament, the prohibition says it

all and one finds any limits on the power of the

State Parliament entirely in the prohibition and it

is inappropriate to move to a process of

implication, and certainly one cannot, in this

respect, draw any analogy between State and

Commonwealth. At the Commonwealth level we start

with a complete absence of power; at the State

level we start from the existence of power, subject

only to self-imposed limits.

The final point, Your Honours, is can an

implication be drawn from the Commonwealth
Constitution that the State parliaments or the

State system must continue to be one of representative democracy? In our respectful

submission again, notwithstanding what has been

said by some members of the Court already on this

topic, such an implication cannot be drawn.

Your Honours, there are two groups of sections in

give Your Honours the numbers in the interests of the Commonwealth Constitution, and could I just

time, and make two observations about them. The

first group are these: sections 9, 10, 29, 30, 31

and 41. In all of them you will find reference to

a Parliament of a State and electors; I mean, not

references to both in all, but they all refer

either or both to Parliament and electors.	They
are all transitional provisions.

Then there is another group with are not

transitional and are clearly the continuing nature

and they are these: sections 15, 107, 108, 111,

123, 124 and 128. They refer to a Parliament of a

State and in a number of them there is a reference

to electors, although the electors referred to

would seem to be electors identified by

Theophanous 214 16/9/93

Commonwealth law, not State law. But, in our respectful submission, the most one can find from

the Commonwealth Constitution is that in each State

there must be a Parliament, and query, electors

under State law. And, in our respectful

submission, that is altogether too slender a basis

upon which to draw an implication that the State

system must remain one of representative democracy.

For a start, surely, in a fit of Republican zeal, a

State Parliament could change its name and call itself, let us say, the congress and the senate;

the two houses. Now, even though it has changed

its name and is no longer "the Parliament", surely

it can do that and one would still identify it as

the ultimate law-making body of the State.

In our respectful submission, surely the State

parliament can if it wish, provide that it shall

include a number of appointed members, not merely

elected members. I merely make these points in

support of the general submission that nothing in

the Commonwealth Constitution requires anything

beyond the existence of something that we can

identify as a parliament, namely an ultimate

lawmaking authority for the State. If the

reference to electors is seen as a reference to

electors under State law to that parliament, as

distinct from electors under Commonwealth law to

the Commonwealth Parliament, then still one can

have a parliament with electors but it need not be

something that we would accept to be representative

democracy.

So, for those reasons, in our respectful

submission, no implication as to representative

government at the State level can be drawn either

from the Commonwealth Constitution or the State Constitutions. They are our submissions if the

Court pleases.

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

New South Wales.

MR MASON:  The Court has, I trust, the outline of

submissions we handed in last night.

MASON CJ: Yes.

MR MASON:	We would adopt the submissions of the Solicitor-General for Western Australia in relation
to the constitutional matters that he spoke about.

Your Honours, the outline that we have

provided covers a number of matters that have

already been addressed and perhaps it is sufficient

if I go straight to paragraph 2(2). Two reasons

have been advanced as to why the implication does

Theophanous 215 16/9/93

not touch the common law rights in defamation of

the parties in the two proceedings that are before

the Court. The first is that that implication is

an immunity consequent on an implied limitation of

legislative power, and on that the Court has been

addressed at length. We have given the authorities

in paragraph 3 or the references in paragraph 3 to

statements by members of this Court expressing the

immunity in those terms.

But, that has been challenged in these proceedings, and that challenge has led to a debate

which has been labelled as whether the immunity

affects the common law. To describe the issue that

way is, we would respectfully submit, slightly

misleading and does not do justice to the issues.

The common law confers certain rights on the Crown

and those rights may well be subject, as are the

legislative rights of the parliaments, to

implications that are derived from the

federal Constitution.

The particular question really is whether the

common law rights of private litigants are affected

by an implication to be found in the Constitution.

That can be addressed either generally or, more

particularly, with reference to the right that is

at question here. It may be that a different

answer might be given with respect to one

constitutional implication or express right than it

would with another.

McHUGH J:  Mr Solicitor, freedom of communication arises

under the Constitution, so the Court has held,

because it is indispensable to the concept of

representative democracy, which is a principle of

the Constitution. So, when a law is impugned on

the ground that infringes freedom of communication,
the real question is whether the law is inimicable

to the concept of responsible government, or

representative democracy, and does it really

matter, in that context, whether one is talking

about common law, or about statute law, or federal

law, or State law?

MR MASON: Well, it raises the question whether the

Constitution is a charter of relationships between the governed and the government, or whether it

extends, in all cases, to personal rights. Now, it

may well be that the answer is that it extends to

some, and then one has to ask whether the freedom

of expression is of such a nature that it must be

vindicated by interpersonal actions, which is what

the Supreme Court of the United States said in

Sullivan's case when they said this involves State action, even though it is a private defamation

action, or it may be the answer is given by the

Theophanous 216 16/9/93

Supreme Court of Canada in the Dolphin case where

they held that picketing was an exercise of

expression. It was, therefore, within the charter,
and the charter affected the common law, but it

only affected the common law with respect to the

rights as between the governed and the government.

McHUGH J: Well, I appreciate that way of putting it, but

the common law may give the right of action, a

State statute or a federal statute may give the

right of action, but in the end the question comes

back, is that law, whether it be common law, State

law or federal law, consistent with the concept of

a representative democracy?

MR MASON: Well, if it is inconsistent with it and if the

proper way of vindicating that constitutional

principle is seen to give a defendant in a
defamation action a defence which was not

previously thought to be so, then if that is a necessary implication that that occur, well we

could not disagree with what Your Honour has put.

But, in point of principle, one has to ask the

prior question, we would respectfully submit,

whether, to put it in the American terms, one is involved in State action simply because there is

the judicial enforcement of tortious or other forms

of interpersonal rights.

Can I just illustrate it this way: if the

Myers store announced that "Henceforth we will be

proudly Victorian and only sell, or give preference

to, Victorian goods", would section 92 give any

form of remedy to stop that conduct? If I made a

will creating a scholarship available to students

from everywhere except Queensland, would

section 117 have anything to say with respect to my

conduct?

In the American cases it was decided in a case

called Shelley v Kraemer, (1948) 334 US 1, that a

restrictive covenant which provided for a

Caucasian-only area could not be enforced in the courts and that the Fourteenth Amendment affected the private rights of parties relating to that

restrictive covenant. There was the necessary

State action, to use the American expression, from the facts that the courts were involved in giving

effect to that private contract.

McHUGH J: But by keeping the common law in force, is that

not State action?

MR MASON:	It is only State action if you hold that the enforcement of private rights by the courts is
necessarily and for that reason State action.

Theophanous 217 16/9/93

McHUGH J: That is the American doctrine, is it not?

MR MASON:  That was the American doctrine; it no longer is.

At the top of page 4 of our outline, we have given

Your Honours reference to more recent cases where,

according to statements, it no longer is the

principle that merely because a court gives effect to interpersonal legal rights, be they contractual

or tortious or otherwise, does not involve this

element of State action.

There has not been a formal overruling of

Shelley v Kraemer. Indeed, one understands that
Shelley v Kraemer is still good law with respect to

the non-discrimination constitutional right

whereas, with respect to other constitutional

rights, the position is that if they are private

matter between private litigants, then the

Constitution, even despite the Fourteenth

Amendment, will be silent as to them.

Once one pierces the universal proposition

stated in Shelley v Kraemer that State action is
necessarily involved because the courts are giving
effect to pre-existing private rights, then it does

become a task of determining whether the right

asserted in the present case is one which derives

from the Constitution and whether it impinges upon

contractual or tortious rights of parties that

presently exist.

BRENNAN J:  Mr Solicitor, are we going to be advantaged by a

consideration of discussion under a Constitution

which has no relevant analogy in the sense of

having a dual system of laws and courts to

administer them in the United States, whereas here,

whether under the autochthonous expedient or

otherwise, we are concerned only with the discovery

of what are the relevant principles of law which

govern a specific relationship between plaintiff

and defendant.

MR MASON: Well, Canada is an exact analogy, and the

Canadian Supreme Court decision in Dolphin Delivery has said of the common law, in this case the common

law of picketing, that the Charter does not touch

the rights of citizens in enforcing common law

rules about secondary boycotts, even though it

would touch governmental action such as the

enactment of a statute. What is at issue is the

scope, or the subject-matter, of the constitutional

freedom - free from what? Certainly free from

legislative trenchment, certainly free from

trenching by the executive, but not necessarily

free from the realm of the private.

Theophanous 218 16/9/93

May I endeavour to offer three reasons why the

distinction must, or should, be maintained as a

matter of principle, that if all private activity

came necessarily within the parameters of

constitutionally derived standards, there would

necessarily be a reduction in the area of personal

autonomy, freedom of choice in private areas where

one would assume that the Constitution presupposes
that the realm of the private is, itself, an
element of freedom, with just the same level of

importance as the freedom that was discussed in the

ACTV case.

Secondly, there is the risk to the separation of powers. Every time the common law rights

between citizens are federalized or

constitutionalized, if I may be excused for making

that expression, there is a necessary extension of

the power of the judiciary, vis-a-vis, the

legislature. It goes without saying that if that

is a necessary implication of the Constitution,

then so be it, but there are costs involved which

ought, in our submission, to be considered. By

constitutionalizing rights - in other words, by

transposing federally derived constitutional

principles into the realm of interpersonal legal

relationships that are already governed by the

common law - then there is necessarily an

involvement of this Court into a law reform

function.

As my learned friend, Mr Jackson, in effect,

invited the Court - he said, "There is a range of

possibilities", and, in effect, the Court was

invited to pick one as the appropriate method of

giving effect to a principle that we can all, in

effect, acknowledge, but by transposing it into a

federally derived legal principle that touches

interpersonal relations, one has the difficulty of

where to draw the line. The Supreme Court of the

United States drew it in a particular way in
Sullivan's case.	My learned friend, Mr Jackson,

asks Your Honours to draw it in a slightly

different way, but what is necessarily involved is

judicial law reform in an area where minds may

differ.

If that is a necessary implication of the

Constitution, so be it, but it does remove from

State legislatures the capacity to experiment with

different solutions, each of which must pass

constitutional muster because State enactments are
clearly subject to constitutional restraints and
limitations.

The third consequence of constitutionalizing private rights is that it creates an uneasy overlap

Theophanous 219 16/9/93

with the common law. And my learned friend, Mr

Jackson, gave an example of any action that

prevented him coming to the supreme court as being

an infringement of a constitutional right that

sounded in a constitutional remedy, not an existing

common law remedy. Would that extend, one asks

rhetorically, to a negligent driver who injured him

en route to the High Court. He asks this Court to

frame a principle that is based on reasonable

conduct as giving rise to an enforceable legal

tortious consequence. Obviously there would be an

overlap with the common law and it would be an
overlap that would cut across the traditional

common law method of trial and error, whereby

principles can be developed in the lower courts;

eventually· they can be determined by this Court in

the light of experience. But to rush in with a

constitutional solution, raises the cost of

determining these matters and tends to risk fixing

things in concrete, which can have its costs.

Your Honours, we would submit that the mere

judicial enforcement of existing rights does not

amount to State action.

McHUGH J:  What about in New South Wales where the common

law really depends upon 9 Geo IV Chapter 83

section 24?	I mean, it has got a legislative
background.

MR MASON: With respect, the common law came before 9 Geo IV

and - - -

McHUGH J: Well, in one sense it did, but - - -

MR MASON:  - - - this Court recently said that it had a

different effect from the date of first settlement.

It might be recognized in statute, and statute

might tamper with it, and change the date of its

reception, as it were, from England, but - - -

McHUGH J: But it also lays down statutory conditions for

its recognition, does it not?

MR MASON:	Query, whether they are for the recognition of the common law as distinct from the recognition of
a statute law of England at the particular date,
the cut-off date. In paragraph 4(b) we - - -

McHUGH J: What about outlaw? Outlaw is a common law

doctrine, I suppose. It probably came across but

maybe it was inappropriate.

MR MASON:	I just do not see the relevance.
McHUGH J:	You said the common law came across and that

9 Geo IV was directed to statute law. I was just

Theophanous 220 16/9/93

wondering whether that is correct, that there may

be some common law doctrines that did not come

across .... more appropriate - - -

MR MASON: Well, there may have been some that were

inappropriate and since 9 Geo IV the common law of

Australia has developed in divergence from other

places but it came before 9 Geo IV, in my

submission, its very nature of this being a British

colony.

The mere fact that there is a judicial

determination or enforcement of a legal right, be

it a grant of probate or an enforcement of a

contract or of a tortious common law remedy, does

not represent, in our submission, that element of

governmental conduct that necessarily attracts

judicial review.

MASON CJ:  Mr Solicitor, we will adjourn now and resume

at 2.15 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.20 PM:

MASON CJ: Yes, Mr Solicitor.

MR MASON:  Your Honours, the principle that constitutional

guarantees limit State action is illustrated in the

context of section 92 in James v The Commonwealth,

62 CLR 339, the passage being at 361 and 362 in the

judgment of Mr Justice Dixon. The passage really

goes for the whole of the two pages, if I could

just highlight the portion about point 6 on page

361, where His Honour quotes, with approval, an

extract from the joint judgment of Justices Isaacs

and Powers, and on page 362 about point 5 to the

end of the paragraph:

Prima facie a constitution is concerned

with the powers and functions of government

and the restraints upon their exercise. There

is, in my opinion, no sufficient reason to

regard sec 92 as including among its purposes

the creation of private rights sounding in

damages. It gives to all an immunity from the

exercise of governmental power. But to find

whether a governmental act be wrongful the

general law must be applied. Sec 92 will do

no more than nullify an alleged justification.

Theophanous 221 16/9/93

Your Honour Justice Brennan draw a parallel

between the implication in the Australian Capital

Television case and section 92 and we would submit

that the approach of Sir Owen Dixon to that

constitutional guarantee is equally applicable here

and therefore, though it can affect the common law,

it only does so with respect to State action or

governmental matters.

The Canadian Supreme Court decision referred to at the bottom of page 4, Retail Etc Union

v Dolphin Delivery, 33 DLR (4th). 174, draws the

same distinction - the passage is at page 190

through to page 196.	I will not read the whole of
the passage or any part of it in fact.	At page 194

it is indicated that section 32 of the Charter
concludes the issue, but is not the sole basis of
the court's reasoning and the court there held the

Charter applies to the common law but did not apply

to private litigation, and that is the distinction

we are seeking to draw.

The court relied extensively upon the work of Professor Hogg in his second edition on Canadian

Constitutional Law. We have given Your Honours an

extract from the third edition of that work, where

Professor Hogg's views have changed somewhat,

partly in consequence of the Dolphin Delivery case,

but at the bottom of page 844 in the extract from

Hogg, he poses the question, about 10 lines up:

The question then becomes: does the making of the court order, supported as it is by "the the court order, supported as it is by "the

full panoply of state power", supply the

requisite element of governmental action?

And then he refers to Dolphin Delivery.

Footnote 73 refers to Shelley v Kraemer and its criticism in Wechsler's influential article,

"Toward Neutral Principles of Constitutional Law",

and Tribe's work, and we have given Your Honours

those passages in the small bundle of papers.

At pages 847 to 850 of the passage from

Professor Hogg's work, the learned author reasons

why, even without section 32 of the Charter, the

same result should as a matter of principle apply.

We would respectfully adopt that process of

reasoning.

Your Honours, in paragraph 6 of our outline of

submissions we put the submission that the

constitutional implication does not lead to New

York Times v Sullivan, or the variant on it that

our learned friend, Mr Jackson, suggested the Court

Theophanous 222 16/9/93

should adopt. We would submit that when one is

dealing with implications and necessary

implications, some assistance can be drawn from the

parallel principles with respect to contractual

implications where one test for an implication is

whether it leads to something that is easily

identifiable and with its bounds easily capable of

being drawn.

In paragraph 6(a) reference is made to a New

South Wales Full Court decision, Anderson v

Fairfax. The passages to which reference is made,

which I will not read, are interesting in that it
shows that the very application made in this case was made over a hundred years ago. It was argued

by a defendant who was sued for libel with respect

to a matter of public discussion that good faith

should be a defence. There is a lengthy refutation

of that both in terms of precedent and principle in

the judgment of Chief Justice Martin who cites

extensively from Campbell v Spottiswoode.

He refers to the fact that the defendant's counsel, who was the Attorney-General of the day,

had in effect said, "If it's not the law, I'm going
to introduce a bill to make it the law", and

Chief Justice Martin said, "Don't, because it would be a bad idea", and, in the course of refuting

that, explained why the common law creates an
appropriate balance with respect to the reporting

of matters of public interest.

Your Honours, at the top of page 7 we refer to

a recent Canadian case, Derrickson v Tomat, where

there is a discussion of New York Times v Sullivan

in a Charter context. It is a case where leave to

appeal was refused subsequently by the Supreme

Court of Canada. It is reported in

88 DLR (4d) 401. The relevant judgment is that of

Justice Wood at 407 and 408. His Lordship was

concurred with on this point by Justice Taylor. He

refers specifically to New York Times, the

criticism of it, and at 408 - and this is of course

in a Charter context - he says:

The rule in the New York Times case

leaves vulnerable the reputation of all who

are or would be in public life, by depriving

such people of any legal recourse from

defamatory falsehoods directed against them,

except in those rare cases where "actual

malice" can be established. Such a rule would

be likely to discourage honest and decent

people from standing for public office. Thus,

the rule destroys, rather than preserves, the

delicate balance between freedom of expression

and protection of reputation which, as I have

Theophanous 223 16/9/93

already noted, is vital to the survival of our

democratic process of government. For that

reason I would be opposed to introducing such

a rule in this country.

We have also given to Your Honours an extract from

a very recent discussion paper of the

New South Wales Law Reform Commission, a commission

which, on this reference, includes former

Justices Hope and Samuels and Mr Justice Hunt and others. It recommends strongly against a public

figure defence. It points out, for example, at

paragraph 10.6, why the American law is different,

with respect for example, to its costs rules, its

tort of privacy, it seeks to demonstrate how the
ultimate result of New York Times v Sullivan is

what is described as a lose/lose proposition.

Paragraph 10.28, because plaintiffs in America are

still encouraged to sue, the damages verdicts, if

they do prove malice, tend to be inflated.	The
cost sanction is not there.	The bringing of the

suit is seen as a a method of vindication in their

reputation, even though the suit ultimately results

in failure. So the end result is what is described

as a lose/lose situation.

We would also and finally, draw the Court's

attention to a recent work which has not been
copied, by Professor Bollinger, ttimages of a Free

Press", which contains a full discussion of the

impact of New York Times v Sullivan. In chapter 2,

particularly at pages 35 and 36, there is a strong

criticism of that judgment of the what is described as the centrality of freedom of speech, and how the

privatising of the injury of speech behaviour
overlooks the damage to the public interest of

driving persons from public office. And, in that

respect, it repeats some of the sentiments in the

judgment of Justice Wood that I have referred to.

DEANE J: What was the name of that book again, Mr Mason?
MR MASON:	"Images of a Free Press", Chicago University

Press, 1991. The English House of Lords in the

Derbyshire case to which reference is made, has

also, in effect, held that New York Times v

Sullivan is not mandated by a constitutional or international adherence to freedom of expression because in the passage to which we have referred

there is a holding that the existing common law of

England is consistent with the guarantee of freedom

of expression in the European Convention. If the

Court pleases.

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

Queensland.

Theophanous 224 16/9/93

MR KEANE:  May it please the Court, Your Honours have I

think, a copy of our outline of submissions.'

TOOHEY J:	I have two, Mr Solicitor.
MR KEANE:	We sought in the second outline which we handed

in this morning to address specifically some of the

matters raised by our learned friend, Mr Jackson, yesterday. The operative outline, if we may call

it that, is one of seven paragraphs, and we

apologize for the confusion.

Your Honours, we adopt the submissions made on

behalf of Western Australia and South Australia as

to the application of the constitutional

implication of freedom of political discourse as a

limitation on the laws and law making powers of the

States.

If we may go to our outline - in paragraph 3 we have sought to address some points directed to

the submissions developed orally by our learned

friend, Mr Jackson, on behalf of the defendant in

the Stephens' case yesterday.

Those submissions have been largely agitated

in argument by those who have preceded us. There
is one matter, though, in relation to paragraphs 4,

5 and 6 of our outline where we would seek to read to Your Honours a passage from a judgment that has

not yet been read to Your Honours. It is from the

judgment, the concurring opinion, of

Mr Justice White in the US Supreme Court in Dun &

Bradstreet Inc v Greenmoss Builders. Can we hand

to Your Honours copies of the relevant excerpt from

that case. Your Honours will recall that our

learned friend, Mr Merkel, read to Your Honours

passages from other judgments in that case. The

passage to which we would take Your Honours is that

which is in the judgment of Mr Justice White.	His Honour's judgment commences at page 765, which	is the third page of our extract. Relevantly, can
we take Your Honours to page 766 where, at the top
of the page, His Honour refers to:

New York Times v Sullivan was the first

major step in what proved to be a seemingly

irreversible process of constitutionalizing

the entire law of libel and slander.

Then in the balance of that paragraph and the next,

he traces the American experience in terms of the

expansion of the public figures rule as an

elaboration of the First Amendment principle or

guarantee. At page 767 in the first full paragraph

he records his involvement in that decision and in

later decisions and then he records his reflections

Theophanous 225 16/9/93

upon that course of authority which has led him to

the view:

that the Court -

as he says in the last sentence in the first full

paragraph on 767 -

struck an improvident balance ..... between the

public's interest in being fully informed

about public officials and public affairs and the competing interest of those who have been

defamed in vindicating their reputation.

Then Your Honours, His Honour goes on to make a point which, with respect, those who have

preceded us have made, which is to say that the

laws of defamation should not be regarded as a

necessary evil with which rights of free speech

have to live. More importantly for our purposes

the following passage suggests that the laws of

defamation are, indeed, an adjunct to

representative democracy in the same manner as,

with respect, Your Honour Justice Gaudron observed,

not quite in those terms but close to them, in the

passage which we have referred to in paragraph 3(c)

of our outline and if we could invite Your Honours

to read the second full paragraph on 767 and over

the page on to 768, concluding with the sentence:

The lie will stand, and the public continue to

be misinformed about public matters.

And, the substance of that passage is really to

affirm the point that was made in the course of

argument that the public representative democracy

is not assisted by the dissemination of wrong

information and, Your Honours - - -

DEANE J: Yes, everyone would agree with that, but I do not

know if it has got anything to do with this case,

but one cannot but be conscious of the fact that

the problem is legal costs, and the average person

now who is sued by somebody with a long pocket for

defamation has to either settle by apologizing even

if he does not want to and believes what he says is

accurate or facing ruin for himself and his family,

or herself and her family.

Well now, where that leads, and the relevance of it is another question, but it really is

avoiding the problem, in one sense, to talk in

terms of the 19th century English law for gentlemen

in London clubs, as if in this nightmare of legal

costs it has got any real relevance at all.

Theophanous 226 16/9/93

KEANE J:  Your Honour, so far as the nightmare of legal

costs are concerned, our learned friend,

Mr Jackson, would say that often the long pockets

are on the plaintiff's side, as often they are on

the defendant's side.

DEANE J: That may be so, but I would venture a guess that

if the not impoverished people sitting at the bar

table made a statement about a public figure which
they believed in and were then sued for defamation,
there would be very few of them who would not be

advised by the occupant of the next door chambers,

do anything you can to get out of it.

KEANE J:  Your Honour, obviously there is nothing I can say

to contradict Your Honour's observation.

DEANE J: That, in one sense - it may have nothing to do

with what the Australian Constitution says, but it

is a problem that one cannot help being conscious

of.

KEANE J: Yes, Your Honour, it is, with respect though,

unlikely to be a problem for a media defendant who

publishes in the course of his business and that

is, in a sense, the focus of the case.

DEANE J:  I appreciate the force of that answer, but perhaps

- and I do not intend to delay you any longer - one
is not greatly concerned about the media defendant

as distinct from the individual who relies on the

media to publish his or her view.

KEANE J: Perhaps, Your Honour, one is concerned with both.

DEANE J: But we are getting involved in philosophicals

here.

McHUGH J: But, in practice, few plaintiffs are well advised

to sue the individual. There has been a recent

illustration in New South Wales as to what happens

when you sue an individual rather than the

corporate defendant.

KEANE J: Quite, Your Honour. If the media defendant is

available it is likely to be at least a target.

McHUGH J: They are the only target if the plaintiff

is - - -

MR KEANE:  Quite. I might say one further thing in

conclusion in relation to the point that

Your Honour Justice Deane raised as to why do we

take Your Honours to these observations. It really

is this, that Mr Justice White's observations are

made in relation to the American experience and the

Supreme Court's lengthy, with respect, travails in

Theophanous 227 16/7/93

attempting to implement the constitutional

insistence on the right of free speech. It is not

free speech with which we are concerned, free

representative democracy. speech per se, but free speech as an adjunct of

We would submit that in that context one would

pay even closer heed to His Honour's observations

concerning the American experience and acknowledge

that in this context there is all the more reason

for caution, all the more reason to refrain from

accepting or assuming the large prescriptive role

which our learned friend, Mr Jackson, urged on the

Court. Those are our submissions.

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

Victoria.

MR GRAHAM:  May it please the Court. We have provided the

Court with two sets of written submissions. One

which, I believe, was provided on Tuesday and the

other at lunch-time today. I apologize for the

lateness of the latter set of submissions but they

were, in fact, designed simply to be the basis of

our oral submissions to the Court, but in the

interests of time we have put them in the form of a

supplementary set of submissions which,I hope has

reached Your Honours during the course of

lunch-time. With those second submissions there

are a few documents to which reference is made in

them, and I would seek the Court's permission to

hand those additional materials up.

So far as our original submissions are

concerned, we have said, in advance, that we

adopted the submissions on behalf of the plaintiffs

generally. We would add a proviso in that regard,

that we do not wish to adopt the whole of what my

learned friend, Mr Castan, put in his

paragraphs 1.1 to paragraph 2.19.	We also adopt,
gratefully, the submissions put by the

Solicitors-General for the other States. That

being said, may I simply add a few additional

observations in relation to what appears in our

supplementary submission. If I can direct the

Court's attention to what appears on page 3 in

paragraph 3 - - -

MASON CJ:  The problem is, Mr Solicitor, as yet the members

of the Court have not had the opportunity of

reading your late submission, so that if we could

just have - - -

MR GRAHAM: Perhaps I could quickly indicate to the Court

what parts that might need to be read now rather

than at a later stage?

Theophanous 228 16/9/93

MASON CJ: Yes, that would help.

MR GRAHAM:	Nothing that appears under heading A is new to the Court. It has been said by others already in
different ways and we do not wish to add anything to what is said there and what has been said by our
colleagues in the same interest.  What appears
under heading Bis in a similar position. The
submissions that there appear seem to be submissions that have previously been made by
others. There is a point, however, that we make in
paragraph 3 on page 3 concerning a submission that
my learned friend, Mr Jackson, made to the Court
concerning the status, as we understood him, of the
Constitutions of the States. At pages 148 to 149
of the transcript, my learned friend, Mr Jackson,
said this:

Views may differ about, for example, the

precise effect of section 106 of the

Constitution, but the one thing that is clear

is that before Federation there were no

States, but there were colonies; and after

Federation there were no colonies, but there

were States, and the only place from which

the States derive their existence as States is

to be found in section 106.

He said:

Your Honours, I know immediately that there

may be views saying, "Well, they were
antecedent to the Constitution" - of course

they were, but they were antecedent as

colonies, not as States. One really cannot

say that there is any entity, to use a

somewhat demeaning term for a polity,

Commonwealth or State, which does not derive

its present characterization as such from the

The matter may be merely one of semantics, and

Constitution.

if it is I do not wish to detain the Court about

it, but we do draw attention to covering clause 6,

which indicates by way of definition that the term

"State" is intended in both the covering Act and in

the Constitution to include "colonies", being those

colonies which ultimately join in the federal

compact.

If I could take the Court over on to page 4,

in paragraph 6 we draw attention to two provisions

to which reference has not yet been made in the

course of this case, the first being section 10 of

the Commonwealth Parliamentary Privileges Act 1987,

and secondly to section 350 of the Commonwealth

Electoral Act 1920. We have provided to the Court

Theophanous 229 16/9/93

copies of those two provisions. For present
purposes, probably nothing turns upon section 10 of
the Parliamentary Privileges Act, but the Court is
referred to it for the sake of completeness as a

provision which provides a defence pursuant to

Commonwealth law in relation to a limited class of

defamation proceedings.

Section 350 of the Commonwealth Electoral Act

we also refer to simply for the sake of

completeness. It creates a criminal offence of

publishing -

false and defamatory statements in relation to

the personal character or conduct of a

candidate -

and provides for quite significant penalties. It

also provides for a defence -

if the defendant proves that he or she had

reasonable ground for believing and did in

fact believe the statement to be true.

There is also provision in subsection (2) for the

grant of an injunction in the case of - to restrain
repetition of defamatory statements regarding

candidates.

I might add that the word "candidate" is not defined in that Act. One can only discover what

its meaning is by going through Part XIV of the

Act. Perhaps a question might arise in the minds

of the members of the Court as to the validity of

section 350 of the Commonwealth Electoral Act.

We have also referred the Court to a provision

in the Victorian Wrongs Act which provides a form

of privilege in relation to publications of reports
of proceedings of other Australian Parliaments

apart from the Parliament of Victoria.

Finally, if I can take the Court over to the

bottom of page 4 paragraph 1, where we touch upon

the subject which I think was first raised by

Your Honour Justice McHugh as to the significance

of the right to the preservation and protection of

one's reputation. We draw attention to a number of

matters which have already been mentioned as being

valuable aspects of the right to the enjoyment of a

reputation in the sphere of public office and in

the parliamentary sphere as well.

It is not just a matter of deterrence of

persons from seeking office. We would point out

that it is important that the authority of those

who hold positions of importance in the government

Theophanous 230 16/9/93

structure is protected. It is important that

competent and qualified people who seek public

office are not denied election or appointment

because their character or reputation has been

unjustifiably tarnished.

Finally, we draw attention to the fact that

persons who hold office are better able to take

difficult decisions and unpopular decisions and to

espouse unpopular causes if they are spared

unwarranted attacks upon their character. Finally,

we touch upon a matter that has not been ventilated

in the course of this case at all. We simply draw

attention to the fact that the implied freedom,

which has been so much discussed in this case, may

yet emerge in the context of contempt of court

proceedings where a conflict will arise between
both freedoms of speech and protection of litigants

and the authority of courts and freedom of speech.

Perhaps that is for another day. Those are our

submissions, if the Court pleases.

MASON CJ: Thank you, Mr Solicitor.

MR CASTAN:	Before the Court calls on my learned friends to reply, would the Court grant leave for me to make a
couple of short comments on matters that have
emerged from that which has been put to the Court? call them that, Your Honour.

MASON CJ: Yes, Mr Castan.

MR CASTAN:  The first was simply to point out there was a

suggestion by my learned friend, Mr Doyle, that our

submission contemplated that the compact we had

been arguing for resulted in the conferring of

rights in some sense. That was not the way we had

intended to put it, and as we understand it, not

what is in our written document and we would trust

that the Court has not understood our submission to

contemplate that.

The second matter is we again stress the point that a question was addressed to my learned friend,

Mr Hughes, as to why he was approaching the

question of qualified privilege in the way he was

and he responded by pointing out that Nationwide

News v Wiese, the Western Australian case, dealt in

a very explicit way with the common law defence and

that the defence of what I will call ordinary

qualified privilege has already been struck out in

those proceedings. We simply again draw attention
to the difference between that situation in the

Western Australian action and the position in the

Theophanous action where the defence of what I will

call ordinary qualified privilege is still pleaded

Theophanous 231 16/9/93

in paragraph 13. So a number of the matters that

have been raised and debated, and a number of those

matters that were raised by Mr Hughes, are of no

relevance to the Theophanous action.

The third matter arises, if I may say, by way

of additional response to that which was put by

Your Honour Justice Deane a short moment ago

concerning the problem of the defendant who is the

defamed party who might be hit with a heavy burden

of costs in defending an action for defamation.	Of
course the question of how these matters work is
perhaps is a matter of evidence or inference of
what actually happens in these sorts of cases but

we cannot help but point out to the Court that, in
the experience of counsel, it is well known that
frequently it is the case, if not always, but
certainly very frequently the case, that the media
defendant when joined indemnifies the personal

defendant, the letter writer or the correspondent,

or whatever. So that one cannot assume, certainly

in those cases, that it is the personal defendant

who is even at risk.

DEANE J: Except that in one sense is a double-sided

argument, is it not, in that the need for the media

defendant to indemnify the personal defendant, to

keep the personal defendant there, perhaps

illustrates the point that I was raising.

MR CASTAN: Perhaps so, Your Honour, but it should not be

assumed that that means that people are, so to

speak - the very fact of the indemnity simply means

they do have a protection, perhaps of a kind that

Your Honour had not had in mind.

McHUGH J:  In New South Wales personal defendants are rarely

joined where you have got a corporate defendant.

The late Mr Clive Evatt taught me that you never had a live defendant in the court if you could

possibly avoid it.

MR CASTAN:	The final matter I was going to draw Your Honours' attention to arises from that which
has passed earlier today concerning the concept of
the right to vote. There has been some reference
to that and a reference to the decision in Sipka.
It is perhaps appropriate that Your Honours' attention should be drawn, since that matter has
been raised, to the operation and effect of section 25 of the Constitution in the context of the right to vote. I of course do not intend to
endeavour to analyse what its full import might be,
but section 25 has at least two matters that should
be considered.

Theophanous 232 16/9/93

One is that it is certainly contemplates that the right to vote might be taken away by States

from significant sections of the population defined

by race, and that power is manifestly assumed in

section 25, so talk of the right to vote in the

Constitution or otherwise must carry with it consideration of the effect, if there still be an

effect, of that component of section 25.

The other, of course, is that the other arm of

section 25 is its effect on the concept of

representative democracy because, of course, if

literally interpreted, its words are such that

those who are deprived of the right to vote by
reference to race in a State cease to be members of

the people by reference to which the numbers of

seats in a State are calculated. One can

hypothesize a case in which the State of New South

Wales legislates to deprive all those of Celtic origin from the right to vote, thereby dramatically

affecting the numbers of seats in the House of

Representatives for the State of New South Wales,

utterly distorting the entire process of

representative democracy. The constitutional

provision, on its face at least, appears to so

provide.

It is not necessary in this case perhaps to

analyse in detail whether it has that effect or

whether it still has an effect at all, but I simply
draw Your Honours' attention to it so that it
should not go totally unremarked, and it has not

been previously mentioned in the course of debate.

Those are the matters which I - - -

MASON CJ:	Now, before you sit down, Mr Castan, could I just direct your attention to question 3 in the stated
case - it will be question 3 in the amended stated
case, but it does not really matter which version
you are looking at for this purpose. It commences:

If yes to any part or parts of question 1, is

any such publication -

Is it agreed, and I have no doubt it is, that "any"

should be understood as "every"?

MR CASTAN:  Yes, Your Honour.

MASON CJ: Thank you.

MR CASTAN: If the Court pleases.

MASON CJ:  Yes. Mr Merkel. You agree with that, that "any"

is to be understood as "every"?

Theophanous	233	16/9/93
MR MERKEL:	Yes, Your Honour.	If the Court pleases, the

submissions we would wish to put in reply are

directed to two matters that have been put against

us: the first centres upon whether the implication

is merely a limitation on the exercise of

legislative power or confers a right; and the

second deals with whether the laws currently

existing in the States, relating to defamation,

strike the correct balance and therefore there is

no basis for the court to intervene. What we have

endeavoured to do is to put our propositions in

reply in writing, and if I could hand those up to
Your Honours, we put a number of propositions, and
we also would wish to hand up a short extract from

Quick and Garran, concerning covering clause 5 to

deal with some matters raised by the learned

Solicitors from South Australia and

Western Australia - if we could hand those up to

Your Honours.

MASON CJ: Yes, thank you.

MR MERKEL:  If Your Honours please, there has been much said

about the so-called right that is conferred and

what we say is that our case need go no further

than accept that the right is an immunity from the

restrictions or burdens imposed by law. And if I

could just briefly address what we mean in

paragraph 3 by any law imposing that liability, we

say that that clearly refers to any law of a

federal law, State law or Territory law, whether by

statute or common law. That immediately takes us

away from the question of private law which several

have put against us, so the area of contract or

private rights does not arise; the issue in the
present case arises under the tort of defamation,

which is unlawful conduct arising under statute or

common law. So we, at the outset, indicate that

the questions involved in this case arise in

respect of conduct that is rendered unlawful by the

operation of law.

We recognize in paragraph 4 that the right is not absolute and must be subject to qualification,

and we set out how, in our submission, it is. But,

the point we wish to make in paragraph 5 of our

submission is that the courts have never addressed

the balance that is required to be struck, that is,

between the constitutionally guaranteed right as

found in the two cases with which we have been

concerned, against what is referred to by us as the

non-constitutionally guaranteed, and that is an

unfortunate expression. It really is a reference

to the merely private right of reputation. Now, by

saying that we do not in any way devalue it, but it

is a contest recognized in the United States

Theophanous 234 16/9/93

between a constitutional right as against a

countervailing private right.

GAUDRON J: But it need not necessarily be so. There might

well be some implication in the Constitution as to

reputation of people involved in public life, if we

are to talk about effective representative

government.

MR MERKEL:	Your Honour, I do not have any difficulty in accepting that and, indeed, the learned Solicitor
from Victoria referred to section 350 of the
Electoral Act that might meet that very requirement. It may not have to be anymore than
part and parcel of the analysis of the question
Your Honours considered in
Australian Capital Television v Nationwide News,
because in the context of protecting the electoral
process, a candidate nominated and standing for
election during the campaign may well give rise to special circumstances.

Another matter put forward on behalf of the

Commonwealth was that Your Honours, in

Nationwide News, accepted that in certain

circumstances, unwarranted criticism of the

Industrial Relations Commission could be made

illegal. That does not in any way run counter to

our argument, because the reason why that right may

obtain itself constitutional protection, is because

the right is to protect the institution, an

institution which is but part of the legislative or

executive arm of government.

We do not have any quarrel with that. The

question that arises in the present case is not a

contest between the two constitutionally guaranteed

rights, but a contest between the constitutional

right with which we are concerned in

Australian Capital Television and Nationwide News

we are concerned in the law relating to defamation.	as against the private right to repute with which	In that area, we are really referring only to State law and we are referring only to the tort arising
under State law.

So to that extent we say that the balance with

which we are concerned recognizes what Your Honour

has put to me. There is no quarrel with that, and

it no doubt will be given due weight as it would be

if section 350 came to be considered of the

Electoral Act. Or, it would be given due weight if

a law of the kind several of Your Honours

considered in Nationwide News, outlawing

unwarranted attack on institutions of government.

Theophanous 235 16/9/93

That is not the issue in the present case, and

we say that, confining it as we do to the question
of the law of defamation, we are concerned with the

competition in that sense. That is all we refer to

in paragraph 5. We wish to draw attention to that.

The second matter we would wish to raise as a

consequence of the conclusion we reach in that

regard is that our learned friends who have put

submissions against us have written over covering

clause 5 without giving full weight to its words

and, indeed, the learned Solicitors from Western

Australia and South Australia referred to the

United States' experience, and can I take Your

Honours to Quick and Garran, which we have handed up to Your Honours, at page 345 where Article VI,

subsection 2 of the United States' Constitution is

set out under covering clause 5, and that article

talks of the Constitution being the supreme law and

then goes on in the second and third last lines:

and the Judges in every State shall be bound

thereby, any thing in the Constitution or Laws

of any State to the contrary notwithstanding.

The words in covering clause 5 which we would seek

to focus upon and emphasis is that unlike the

United States' Constitution, covering clause 5

indicates that:

This Act, and all laws made by the

Parliament of the Commonwealth under the

Constitution, shall be binding on the courts,

judges -

and these words are added:

and people of every State and of every part of

the Commonwealth -

Now, what we would submit is that those words

ought to remove any doubt that in so far as rights

arise under the Constitution, or in so far as

obligations arise under the Constitution of the

kind we have defined, that is, immunity from action

in which covering clause 5, together with Chapter V of the Constitution render the Constitution and the

in respect of conduct which is protected by the

laws of the Commonwealth paramount, certainly carry

one down to private rights in the sense that a

cause of action which founds itself on a

communication which the Constitution protects is

not one that can be validly brought and, in that
regard, we do rely upon what was said in the

passages we had quoted earlier in our submissions

from Leeth, Brevington, McKain, Stevens, and also

Theophanous 236 16/9/93

Justice Murphy in Metwally v Ansett, to indicate

that that is the way in which this Court has,

certainly a number of members of this Court, have

approached the operation of clause 5, together with

Chapter v.

BRENNAN J:  Does not that pleading raise the problem we have

to solve because if the nature of the guarantee is
to create some immunity from action, then is there

any reason why the States cannot supplement the

immunity thus created and, thereby, produce a

divergence of immunities resulting in the one

publication sometimes being lawful and sometimes

not?

MR MERKEL:  Your Honour, the point we seek to make is that

they may expand immunity but not diminish it. Once

they diminish it and produce the result that

Your Honour has put, the notion that there is a

unitary system of law created under the

Constitution and constitutional guarantees are not operative throughout the Commonwealth detracts

directly from covering clause 5, and we say is

inconsistent with the way in which the Constitution

has been treated as being paramount, including laws

passed under it. We would say that is not a result

that could arise from a constitutional guaranteed

right.

BRENNAN J: Just so that I can understand this entirely, is

it right to say that if, contrary to your

submissions, the common law is congruent to the

requirements of the Constitution, then paragraph 6

has no relevant application?

MR MERKEL:	That would be correct, Your Honour, but we deal with the only way in which that would arise in
paragraph 10.  We would say that to avoid the
result which we would say could not be countenanced
under the Constitution of the same publication
being lawful and unlawful in different parts of the
Commonwealth, the only way in which that can be
avoided is if the constitutional guarantee as
enunciated by Your Honours gave rise to an occasion of qualified privilege in the common law, which is
what we have dealt with in paragraph 10.

If that arose, then the common law itself

would be uniform and we would accept, subject only

to us putting the New York Times v Sullivan test at

a higher level of priority to qualified privilege,

that the uniformity would prevail. But the

difficulty we have with paragraph 10, Your Honour,

is that it is our submission that the question of

the common law providing the answer only arises if

the Constitution itself does not give rise to the

Theophanous 237 16/9/93

defence. It is that point that we raise in

paragraphs 1 to 9.

It has been put against us that one asks the

question: is the common law sufficient? we say
the fragmentation and diversity of the common law
of itself means one cannot get an answer from it,
but we say it is putting the question the wrong way

round. We say the question asked from the

guarantee is: what immunity is created as a result

of it? We say it is an immunity in terms of what

we have set out in paragraph 4.

BRENNAN J:  Do you have to say what the immunity is immunity

from?

MR MERKEL:	Yes, Your Honour, it is immunity from having conduct protected by the guarantee rendered
unlawful under federal, State or territorial law in respect of publications that give rise to relief in
the law of defamation, which is the only subject with which we are concerned in this regard, unless the preconditions set out in paragraph 7 are
satisfied.
BRENNAN J:	If there is no law which you need immunity from,

how does the problem arise?

MR MERKEL:  The problem arises, Your Honour, because under

State law the publication in the present case, a

letter to the editor expressing a view of an

elector as to the capacity of the candidate, is

rendered unlawful by the law of defamation unless the common law defences are made out in Victoria.

I will come to that in a moment, but we say those common law defences are clearly inadequate and do

not meet the constitutional guarantee on any view.

We wish to stress the point that it is a

question of law for the Court to determine the

matter under paragraph 4, not the other way round

by looking at defamation laws and saying, "Where

are they inadequate?", but by looking at the matter

objectively by reference to the constitutional

protection and determining what as a matter of law

that protection is.

DAWSON J:  Now, do you say that the guarantee, even if it is

consonant with the common law, displaces the common

law and operates of its own force?

MR MERKEL:  Yes, Your Honour, since 1901, but there is a

certain degree of circularity there, because what

we say, Your Honour, is that section 108 makes it

clear that the laws in force in a State continue in

force, subject to the Constitution. If the

implication arises as part of the common law of the

Theophanous 238 16/9/93

Constitution, if I can use that phrase, then, to

that extent, the common law of Australia, which

only commenced in 1901, has as one of its

principles, the common law of the Constitution. It

does not modify or displace the common law; it is

indeed the starting point.

DAWSON J:  But one can say, taking the common law before

1901 and taking the guarantee, it is the guarantee

which is operative and which, even though it is in

the same terms as the common law, assuming it could

be, it displaces, nevertheless, the common law.

That is what you are saying?

MR MERKEL:  Yes, that is what we say, Your Honour, and

indeed we say, further, that must be so, because

the common law related to the law of the colonies,
not part of the unitary system under the

Constitution and therefore a new situation arose as

from 1901.

DAWSON J: And that submission is entirely inconsistent with

the submission which says that the implication,

which we are talking about, operates merely as a

restriction on legislative and executive power.

MR MERKEL:  If it operates in that way, Your Honour, and

does not go to the common law, that would be

correct, and we have put our submission from the

outset that the immunity cannot logically properly

draw a distinction which would set the common law

at a higher standard than that of statute or the

Constitution, but what Your Honour says is correct.

McHUGH J:  I have difficulty now with your argument that you

rely only on an immunity. If it is only an

immunity, then surely the question is, is the

relevant State law, Commonwealth or common law

consistent with the immunity? But in paragraph 7,

you seek to erect it into a positive right.

MR MERKEL:  It is a right only in the sense that we have

mentioned in paragraph 2. It is an immunity from

having action that would otherwise be lawful

rendered unlawful by reason of the operation of

law.	I do not wish to use the word "right" in any
other way in these submissions.	So the right to

publish, Your Honour, is not necessary for our

argument to be termed in terms of saying, "We have

a right enforceable at law. We have an immunity

from suit for breaching the law by the

publication". That is the only way in which we
put. In that sense, Your Honours, we say that the

question so arising really requires the answer to

the question raised in paragraph 7. We say that in

those circumstances we have contented for the three

different ways in which the test might apply and we

Theophanous 239 16/9/93

would submit that those tests accord with
well-recognized headings in relation to the law of

defamation. But that is how we would submit it.

When we go to the question of dishonesty, and

we have contented for the New York Times v Sullivan

test, much has been said about the right or the

authorization to make a false statement. we would

submit that, again, puts the question the wrong way

around. The real issue that has arisen, always under qualified privilege, is not a right or an authority to make a false statement, but the

occasion is such that a statement should be made,

even at the risk of it being false. It does not

authorize intentional falsity or bad faith
statements.

Could I go to the ancillary question as to why we submit, contrary to the submissions that have

been put against us, the State law is currently is

clearly inadequate and we have four aspects we

would wish to raise. But could I introduce our

submissions in reply on that point by saying that because the balance to be addressed under the law

is that arising from the constitutional guarantee,

that question has not been addressed, nor has that

balance been sought to be struck. So to that

extent the question so arising arises for the first

time in this Court. But with that qualification,

we say that even if we were wrong, the case law

demonstrates that the balance struck does not meet

the principles which we have contended for in

paragraphs 1 to 9.

Can I give Your Honours three clear examples,

the first which was the subject of great debate

before Your Honours is on the law of qualified

privilege. The cases put thus far suggest very
strongly, particularly Bedford, Smith, Lang, that

there is no right to publication at large, save in

the Adam v Ward situation. It may be wrong, but

the law at the moment operates, and has been
treated as operating, as no general right to

publish material of the kind Your Honours described

in Australian Capital Television to the world at

large. So to that extent the law of qualified

privilege would not afford any protection to such publications, save in the Adam v Ward reply to an attack situation.

If I could give one other example under

qualified privilege which Your Honour

Justice McHugh put forward to one of my learned

friends, that there may be an occasion where the

publication is privileged to some but not to

others, and that was overcome by making it

privileged both ways under section 20(2) and (3) of

Theophanous 240 16/9/93

the New South Wales Act. But that only makes our

point that the same publication can be lawful to

some and unlawful to others which we would say of

itself speaks of inconsistency with the guarantee.

Can I move to another more very pertinent area

in respect of our publication. The defence of fair

comment has not been treated as available to a

newspaper publishing a letter to the editor,

whereas one would expect the editor has no view as

to the comment by definition. The letters to the

editor are the views of others, yet the Canadian

Supreme Court has held that if the editor has no

view or there is no evidence that the editor

believed in the honesty of the letter, then it

would not afford a defence of fair comment.

McHUGH J: Nobody accepts that in Australia, do they?

MR MERKEL:	I was not going to read to Your Honours, but I was going to mention to Your Honours three places
where this discussion is found.  The Canadian
Supreme Court decision is Cherneskey v Armadale discussed by Mr Justice Hunt in Hawke v Tamworth
Newspaper Co Ltd, (1983) 1 NSWLR 699. Mr Heerey,
now Mr Justice Heerey, wrote an article on
"Publishing the Defamatory Statements of Others" in
volume 59 of the Australian Law Journal at
page 371. The upshot of the discussion is that it
may be said that the law in respect of publication
of the statements of others is somewhat unsettled, but - - -

McHUGH J: Except that Mr Justice Hunt rejected Cherneskey

and Hawke, did he not?

MR MERKEL:  Your Honour, he distinguished it, but he

distinguished it in a way that went to the question
of who has the onus of showing the honesty of

belief in the statement, but if the editor was

called by the plaintiff, and the editor said as one

would expect, "I have no view at all about the

content of this letter, it may be true or it may

not be", it would not meet the defence of fair

comment. The fight has been more on onus than the

substantive issue.

McHUGH J:  I think it has been rejected in Queensland in

Pervan's case which is under reserve judgment here.

Not that point, but - - -

MR MERKEL:  It may be sufficient for my purposes,

Your Honour, to say that there is no clear defence

of the editor arising under the

Australian Capital Television guarantee, that would

Theophanous 241 16/9/93

render it lawful. That may be sufficient for my

purposes.

The third aspect was one raised by

Your Honours and that was the question of whether a

law which said, "Truth is not a defence", would be

valid and there are two such laws. In

New South Wales, "Truth and public interest" is

required, and in Queensland, "truth and public

benefit". So that, on that very question, truth

alone is not a defence.

We would submit that those examples, together with the clear and obvious possibility, or we would

say even probability, that you could get different

results in different jurisdictions, make the point

that the common law does not provide the answer

which would on either view, in our submission,

require uniformity. The constitutional guarantee

could not accept any lack of uniformity in outcome

in any part of the Commonwealth. But, our

alternative submission, which is addressed in

paragraph 10 is that if we are wrong, and we say

that the reason why the constitutional defence

would fail, would only be that it does not affect

individual rights, and we say there would be no

point in basis in principle for that.	Then
consistently with the approach of the

Canadian Supreme Court in Dolphin, the common law,

in our submission, having due regard to the

constitutional guarantees, should be accepted as

having been modified, at least since Federation, to

treat publications protected by the guarantee, as publications on occasions of qualified privilege.

And that is the defence we raise in paragraph 12.

We would submit, with respect, that existing authority has not addressed that question, and we

say that that is an important defect or flaw in the

submissions that have been put against us, and it

is for that reason we have set out in our

conclusion at paragraphs 1 to 9, a four-day defence

under the Constitution, or by reason of the

Constitution, not capable of being abrogated by statute. Paragraph 10 deals with the separate

common law question which, of course, would be

capable of being abrogated because it arises by

reason of the common law's adjustment and

adaptation to the constitutional guarantee. We say

once it is determined it must operate evenly

throughout the Commonwealth so one does not get the

possibility of inconsistent results.

Only one or two other minor matters. My

learned friend, the Solicitor from - - -

Theophanous 242 16/9/93

DEANE J:  Mr Merkel, before you go off the main argument

may I ask you this: would you agree that if yo~

succeed all the way along the line until the last

step, the last step necessarily involves a weighing

of private interest against public good? would you

agree with that?

MR MERKEL:	Yes.
DEANE J:	The private interest in vindication of reputation

against the public good involved in the type of

freedom of discussion that is conducive in a

representative government situation.

MR MERKEL:  Yes, Your Honour, but we would say that the

public good, unlike the early New South Wales statute, is not a statutory balance, that the public good is determined by the Constitution

itself.

DEANE J: That is what I was putting to you.

McHUGH J: But might there not be two public interests

involved? On the one hand, public interest in

freedom of expression; on the other hand, the

public interest in securing people for public

office.

MR MERKEL:  Your Honour, we accept that the common law

sought to strike a balance in a non-constitutional

context and has struck a balance, and no doubt is

continuing to adjust to changed circumstances,

particularly no doubt in the area of qualified privilege where there is a degree of unreality about the present common law and talking strictly

in terms of reciprocity. But what we say has

occurred in respect of the Constitution is that

there is a higher value in terms to be given to the

constitutional protection of representative

parliamentary democracy. That must move the

balance previously struck a little more directly or

a little further in favour of the right to free

speech protected by the Constitution. It seems

that what we are really - - -

McHUGH J: It is not free speech. It seems to me that is

one of the problems of this whole debate. This

case is not about free speech at all; it is about

freedom of communication.

MR MERKEL:  Your Honour, I accept that; I should not use the

word.	It is a shorthand word for what Your Honour
decided.	My submissions do not intend to go one

centimetre out of the subject-matter protected by

the guarantee and I only mean it in that sense.	We
have tried to define it, in a sense, in

Theophanous 243 16/9/93

paragraph 8, but we say that we are only concerned

with that.

Now, we accept the public interest in private

repute. There can be absolutely no doubt about it.

But we would submit that because of the

constitutional protection of one and the public

interest protection, but non-constitutional of the

other, that the balance thus far addressed,has not

really dealt with the correct approach. The United

States Supreme Court has and whether one agrees

with the test or not, it may be put as too high and

that malice as recognized in the law of defamation

may be a more appropriate way. It may be said that

the proper balance is as under section 350, where

you have to have some reasonable basis for your

belief. But, either way, whatever the standard be,

we say it is not that which has been recognized by

the common law, and we would say our learned

friends' submissions against us have not addressed

that particular problem and have not really dealt

with it head on; they have side-stepped it, and
the common law is an aid as a starting point, but

not a finishing point.

McHUGH J:	Do you tie yourself to the New York Times v Sullivan - - -?
MR MERKEL:	No, not at all, Your Honours; we have put it for the reasons that we have advocated as the preferred
basis, but our alternative is that it be treated as
if it be an occasion of qualified privilege and
then malice is a defence.  We have put that as the
alternative.  Or the third basis we have put is
that that my learned friend, Mr Jackson, contended
for, one of reasonableness, but there may be
possibilities in between the three and we do not
seek - - -
McHUGH J:	One possibility that occurs to me is that the

onus should be on the plaintiff to prove the

falsity of the statements as opposed to the common

law situation. It does not go as far as New York

Times.

MR MERKEL:  We accept that, Your Honour, but again we say

the issues of substance are more than just onus

issues. They may go to practical questions, but we

say the substantive questions have to deal with the

issue of content. But we do not wish to tie

ourselves rigidly. We say it is a question of law

and my learned friend, Mr Hughes' criticism, that

although they cannot define it with precision, is

no answer to the fact that it needs to be and can

be defined in a way that maybe none of the parties

contend for.	I only wanted to add further:	my
learned - - -

Theophanous 244 16/9/93

DEANE J: What I wanted to ask you when I was leading up to

this question is, if it is a balancing, is the

exercise the same when one is concerned with

compensation for proved injury to reputation in one

case, as in the case where there is a punitive
element in terms of either liability for punitive

damages or liability for the type of general

damages which are awarded without any requirement

of proven injury?

MR MERKEL:  Your Honour, I am not sure that I would be

asking Your Honour's question directly but, we

would submit, if I understand what Your Honour is

putting to me, that the reason why the balance has

been struck in favour of the freedom of

communication has been that there is a direct

public interest in that freedom, and that the

threat of libel judgment, whether it be punitive

for ordinary damages or merely damages protecting

repute, in the sense Your Honour has put, private

injury, is all part and parcel of a process which

renders conduct unlawful and, therefore, to be

deterred.

DEANE J: Well, what leads to my question is, as I followed

Mr Jackson's argument, he was using "right" in much the same sense as Dicey uses "right" except on the odd occasion when people talked about right of

action. Now, if you look at Dicey, Dicey speaks of

the right to free communication in terms of the

area that is left unpunished, either by criminal

act or by a requirement of compensation as to be

seen as punishment. Now, I was just wondering

whether there is some distinction between

compensation to prove an injury when one comes

doing the balancing between private right and

public good, and the sort of damages that are

awarded over and above the minimum vindication, and

compensation, as I say, for proven injury.

MR MERKEL:	Your Honour, I cannot say it is a factor that is irrelevant, but we would say that, for the purposes
of the test, it is not one that ought to be given a
great deal of weight, or be determinative, and the reason for that is that we say the reason for the
protection is the deterrence that arises from any
liability, restriction, or burden that is real upon
the freedom to communicate, and the way in which it
has been approached generally, and the discussion
that has taken place in this Court would indicate
that the burden or the threat of damages, or the
threat of the conduct being unlawful is itself the
burden which needs to be addressed.

DEANE J: Well, one wonders about that in that, and I do not

want to take time, but the sort of defamation

damages that are building the Herald's swimming

Theophanous 245 16/9/93

pool out in the backyard, or what have you, are by

and large the cases which are stifling discussion

are by and large the cases where you look at it and

you see the same thing as being said under

parliamentary privilege, but here you have an

action in the courts aimed at extracting money.

Well now, that is the type of thing that on one

approach is likely to fetter free discussion in a

way that, having to make compensation for the

pecuniary damage you have caused somebody by

injuring his reputation, is really never going to

touch.

MR MERKEL:  I appreciate what Your Honour puts and there are, no doubt, questions of degree. I think in

some cases overseas politicians have been awarded a

principle of half damages. I do not know whether

they only have half a reputation or they have

picked up what Your Honour has put. But we would

submit, with respect, that the fact is that it is
still unlawful conduct. It is not a matter of
regulation in the private arena, it is unlawful.

We say in the real world the long purse of

newspapers maybe is a little unrealistic. There

are those charged with administering papers and
they are not in the business of exercising or

discharging their functions unlawfully. There is

also the case that Your Honours have put, and this

case raises it very directly, the publication of a

letter by a constituent through the Letters to the

Editor column, which would be the primary vehicle

that Your Honours would encourage freedom of

communication in.

So that we say there is a degree of unreality

when one gets into long-pocketed plaintiffs and

long-pocketed defendants. The reality is that the

freedom itself having a constitutional value should

not be fettered as being unlawful. It may be that

some laws could be specially passed that might meet

there was purely pecuniary damage it may be able to	a lower threshold where it was not unlawful, and if
be recovered. They are not the situations that we are really addressing. Specific protections or abrogations may be justified.

The point that we make, and the only point we

need to make at the moment, is that the balance has

not yet been presently struck and in so far as our

conduct in publishing Mr Ruxton's letter is

concerned, it has been rendered unlawful by the law

of defamation in a way that we would submit offends

the guarantee. That is the issue we would see at

the moment. That is why section 350 of the

Electoral Act is not the question. We accept that

particular restrictions and circumstances may arise

which can themselves be justified and we do not

Theophanous 246 16/9/93

wish to comment on that because we accept it as

obviously something always to be addressed in the

balance.

The only other matter we wanted to indicate

was the reference to Dun & Bradstreet, particularly
Mr Justice White. His Honour was referring there to the extension of protection from political

speech to speech in commerce. His Honour at

page 770 really then addressed the balance which we

have been concerned with, that is the

constitutional balance. So that the passage that

was put to Your Honours was His Honour's concern at

the problems without reference to the Constitution.

At page 770 His Honour did not, as we read him,

move away from the position His Honour had accepted

as being good and proper law in the United States,

which is that of New York Times v Sullivan.

Our only concluding comment is that much has been said about the opening up of the First

Amendment problems in the United States. As we

have put the protection to be a constitutional one,

we have indicated in paragraph 8 that it does not

raise any questions of public interest or public

figure issues of the kind in the United States. It

is a much narrower protection, dealing with a much

narrower subject-matter. If Your Honours please.

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

MR JACKSON:  I propose to deal first, if I may, with

submissions in relation to the constitutional

defence and secondly in relation to qualified

privilege. Before moving to either of those, may I

say just one thing in relation to an observation of

Your Honour Justice McHugh.

Your Honour will recall in relation to the

Your Honour may recall the recent decision of the	the newspaper as a practical matter that is sued. fact that in, say, New South Wales, it is always
Court in Carson v John Fairfax, and there was of
course Carson v Slee, another case in relation to the other publication. Mr Slee was the journalist,
and I would not attempt to go into questions of
indemnification, but the value of indemnity might
be affected by the fact that Your Honours will
recall that the company which was the newspaper
company had its name with the suffix "Receivers and Managers Appointed" and- perhaps sometimes the money
is not always there at the time.

Your Honours, could I turn first then to the

submissions of our learned friend, Mr Hughes.

Reference was made to what was said or may have

been thought by the founding fathers. No doubt the

Theophanous 247 16/9/93

founding fathers thought about many things -

perhaps more than they realized they were thinking
about at the time - but one thing they did

recognize was that the Federation which was

established was one which derived not just from the

common law and was one in which there was to be a

written Constitution and a written Constitution

along United States' lines as one of the bases

which might be interpreted by a supreme court such

as this Court which might recognize implied and

express rights.

If one wishes to see circumstances in which

three of the founding fathers, the first three

members of this Court, were of the view that things

implied in the Constitution might give rise to

private rights, one can see that in their

discussion of Crandall v Nevada which is to be seen

in R v Smithers, Ex parte Benson, (1913) 16 CLR 99.

May I just give Your Honours the page references without troubling to go to the passages: pages 108

and 109 and also 119. Your Honours, the question

whether there is to be drawn - whether some private

right - and I will describe a little later the

the subject-matter which is involved.

sense in which I am using it relevantly - from the

friend, Mr Hughes, he said that the one matter

which was germane was the fact that there was no

duty to correct a statement if it were false, no

obligation to do that, and that militated against the implication of any protection of the relevant

kind. Your Honours, that is true of course in the

case of any publication which is a publication of

defamatory material unless there is a statutory

provision to the contrary.

Your Honours, if I could turn from that to

some of the submissions made by the interveners.

On behalf of the Commonwealth a suggestion was made

that if one looked at what was said in Nationwide

News, that suggested that if there had been a

provision for truth as a defence, that would have

been good enough. One has to bear in mind that

Nationwide News was a case where there was

provision for no defence, and so it was not

necessary for the Court to pass on what might have

been appropriate defences.

Turning then to what was said on behalf of

Western Australia - and I will not go into detail,

except to say one thing - but Your Honours, what
the Constitution recognizes is that the parliaments

of the States are elements in the federal

structure. A little far fetched perhaps to take

Theophanous 248 16/9/93

the parliaments away - parliaments of the States

out of the federal structure; perhaps you can give

them a different name - but a little far fetched,
in our submission, to say they can be taken out.

Your Honours, they are elements in the federal

structure, both originally and more recently.

If one looks at section 15, the provision of

the Constitution which deals with replacement of senators and the identity and, Your Honours will

recall, its amendment to ensure that persons of the

same political parties as the senator who died are

appointed, you will see the references to the

Parliament of the State. And the concept of

Parliament by itself, in our legal system, in our

submission, is a concept of a body of which at

least one House is democratically elected.

Now, Your Honours, no doubt in relation to electoral qualifications, there may be differences

of view at particular times about what classes of

persons should be given the vote. There may have been views about the appropriate age of persons - and perhaps things might change in the future, who

knows - but Your Honours, one thing that is

contemplated by the Constitution is that in

relation to those institutions there will be the

mass of the population, or a significant part of

the population, with voting rights, and

Your Honours, votes rights of that kind, in our

submission, may be enforced, so to may rights

deriving from them.

Our learned friends from South Australia

placed considerable weight upon section 128, the

ultimate source of the implication. Your Honours,

it is true that it is the presence of section 128

which means that the Constitution cannot be

changed, except by a certain process having been

followed through, but until the Constitution is

changed, representative democracy remains, and if

the Constitution were changed, it may require a

different implication to be drawn. But until it is

changed, the appropriate implication is the one

which has been found and which we have submitted

applies in this case.

Your Honours, if one translates that to the

West Australian Constitution, what one sees is the

West Australian Constitution cannot relevantly be

changed without a referendum. The Commonwealth

Constitution cannot be changed without a

referendum. Both preserve representative

democracy.	Why does one not draw the same
implication?

Theophanous 249 16/9/93

Your Honours, if I could then move to one

further matter concerning the question of the

constitutional defence. The argument on behalf of

those opposing our contention comes again and

again, as it were, to the proposition that the

implied freedom is an inhibition on legislative

power amd no more. That is a proposition the

ramifications of which, in our submission, need to

be explored just a little.

Your Honours, if the inhibition on legislative

power applies to prevent the Commonwealth or a

State legislating in a way which interferes with

the exercise of the freedom, which the Court found
to exist in the earlier cases, then one would think

that one of the subjects in respect of which the

inhibition on legislative power would apply would

be the area of defamation, and archetypally so, in

a sense, because as a practical matter, that is, of

that context, defamation, is the one in which the

issue of freedom of speech, and the consequences

attending the exercise of the freedom is most

likely to arise. That is where the question is

most likely, most frequently, to arise.

Now, Your Honours, if the inhibition on

legislative power is to have any relevant content

it must operate to invalidate legislation which
makes unlawful the exercise of the freedom. That
means that if a statute gives rise to a cause of

action in circumstances where the exercise of the right of action, or the existence of the right of

action, would affect the freedom, the Act is pro

tanto invalid, and the action proceeds - I mean the

action in court - proceeds as if the Act were not

relevantly in existence.

Your Honours, the same position, in our

submission, must obtain in relation to the common

law. Your Honours, it would be, if I may say so

with respect, unorthodox to treat the common law as

having a greater effect than statute and, indeed,

treat it as having a greater effect than the

Constitution itself.

Your Honours, if there is invalidity of a

statute, or if the common law, otherwise

applicable, is rendered inapplicable, there is an

area which in the event is constitutionally

protected. It is constitutionally protected

because the invalidity or the inapplicability comes

about because of conflict with the inhibition on

legislative power on the one hand, and the common

law on the other.

Your Honours, the result is, of course, that

whilst one may say it is no more than an inhibition

Theophanous 250 16/9/93

on legislative power, one must see what flows from

that. And, what flows from it, is that the

inhibition effectively alters the way in which the
rights of parties are adjusted in litigation.

Your Honours, the nature of the relevant limitation may be the subject of debate and I do

not wish to go over that again, but one method of

reasonable regulation of the inhibition would be by

treating it as an immunity which is capable of

being lost by publications which are unreasonable

or not bona fide.

Could I mention one matter before going on to

qualified privilege, and it concerns an observation
by my learned friend, Mr Hughes, about the common
law of the Parliament. Could I give Your Honours

Bill of Rights, Your Honours will find in

some references to cases in which the privileges of the

Sankey v Whitla.m, (1978) 142 CLR 1, at about

page 35, and a review of the cases on the topic may

be seen in the judgment of Mr Justice Beaumont in

the Federal Court in Amann Aviation v The

Commonwealth, (1988) 19 FCR 223 at page 225 and

following.

Your Honours, the issue is also discussed in

Reg v Richards; Ex parte Fitzpatrick and Browne,

(1954) 92 CLR 157, and in the eight edition of

Gatley at paragraph 422.

Your Honours, could I also mention the

United States decision of Cohen v Cowles

Media Company, (1991) 115 Lawyers Edition (2nd)

586, in relation to the question whether the

ability to enforce rights through the courts of the

States means that is State action. Your Honours,

that case seems to show that the issue is still

around and that what is said in that case at

page 596 is:	Under our cases that is enough to constitute
State action for purposes of the Fourteenth
Amendment.

I will not go into the detail of it, but

Your Honours will find that is a decision of the

United States Supreme Court,relatively recently, in

1991.

Could I move then to the question of qualified privilege. The argument on behalf of the

plaintiffs kept referring to the test as being one

of duty and interest. Your Honours will recall the

reference to Globe v Boland, the Canadian case in

which the test was put as the existence of duty on

Theophanous 251 16/9/93

the one hand, interest on the other. "Was there",

it was said, "a duty to publish this false and

defamatory material?" more than once, with respect.

Could I say two things about that first. The

first is that that requirement of duty and interest

puts really only one of the existing tests because,

in addition to the question of duty and interest,

there is also the further test of interest and

interest, and all that is required for qualified

privilege is that there be interest and interest.

The relevant test, Your Honours, may be seen stated
by Chief Justice Latham in Guise v Kouvelis,

(1947) 74 CLR 102, at page 110 about point 3, where

Your Honours will see that after referring to the

duty and interest test His Honour goes on to say: Further, statements made in relation to a

matter in which the person who makes the

statement has an interest if they are made to

a person having a corresponding interest may

also be protected -

and reference is made to the leading case on that,

Harrison v Bush. Your Honours, that test and a

summary of the cases may be seen in a judgment of

in

Chief Justice Jordan New South Wales in concluding at page 362.

Your Honours, the term "interest" in the

particular connection has no narrow meaning, and

Your Honours will see that from two passages in a

case to which I referred earlier in the Court, Howe

v Lees (1910) 11 CLR 361, and if I could first to

the observation of Justice Higgins at page 398

about point 5, a passage which is regarded as a

classic, as it were, passage, His Honour says:

The truth seems to be that the word

"interest", as used in the cases, is not used

in any technical sense. It is used in the

broadest popular sense, as when we say that a

man is "interested" in knowing a fact - not

interested in it as a matter of gossip or

curiosity, but as a matter of substance apart

from its mere quality as news.

And Your Honours will also see at page 377 in

Justice O'Connor's reasons for judgment, at about

point 7 on the page, His Honour says:

The interest relied on as the foundation of

privilege must be definite. It may be direct

or indirect, but it must not be vague or

unsubstantial. So long as the interest is of

so tangible a nature that for the common

Theophanous 252 16/9/93

convenience and welfare of society it is

expedient to protect it, it will come within

the rule.

Now, Your Honours, if one takes that passage

or applies it to the considerations which the Court

took into account in the two earlier cases, then it

would seem plainly to come within the rule. We

would say, if one goes then to the present case - I

shall not go over the allegations involved in it
again, but they would clearly fall within those

concepts. All members of the public, the voters

and the governed, have the necessary interest, we

would submit. So, too, does the publisher. It

publishes in Western Australia; it, too, is one of
the governed.

The reasons, which were referred to by Your Honour the Chief Justice and by Justice Jacobs

in Calwell v Ipec Australia Ltd, and adopted by

Your Honour Justice Brennan in John Fairfax & Sons

Pty Ltd v Punch to which I referred yesterday,

would support, in our submission, that there is the

relevant interest on each side. Publication may

occur, of course, incidentally to persons who may

be, for example, overseas tourists travelling

through Western Australia and it may be that they

do not have much of an interest at all in what is

happening in the government of Western Australia

but, we would submit, it is apparent, that the fact

that there may be an incidental publication to

persons who do not themselves have the necessary

interest is not fatal to the existence of qualified

privilege.

That that is so appears from some passages in

Guise v Kouvelis, 74 CLR. May I simply give

Your Honours the reference to the three passages:

page 111, point 2; 123, point 3; and 125, point 6.

In short, Your Honours, we would submit that we

fall within the existing law of qualified privilege

and, of course, one of the factors which militates

in favour of that conclusion is the existence of

the constitutional freedom to which reference was

made in the two earlier cases.

Your Honours, could I add a further

observation in relation to our learned friends'

submissions on this question. The approach relied

on by the plaintiff appears to me to say that
qualified privilege only applies to a number of

particular instances, defined situations where one

has duty and interest or, perhaps indeed, interest

and interest. There seems to be, underlying our

learned friends' submissions, a denial of there

being an underlying principle, an underlying

principle which would admit qualified privilege to

Theophanous 253 16/9/93

circumstances where the good of society - and I do not mean that in the most general form, but rather

in relation to the institutions of society - would

make it appropriate for it;to exist.

Your Honours, the second feature relied on by

our learned friends is to say that Loveday v Sun

Newspapers is right to the extent to which there

are some dicta there to be found to say that the
matter spoken of must first be in the public arena

before a newspaper can speak out about it. It

appears to be some kind of special rule for

newspapers. Your Honours, we would submit that

neither of those propositions should be accepted.

There is an underlying principle; we would submit

we have dealt with it in our earlier submissions.

It should be applied to new situations, including those brought about by a finding that a

constitutional implication arises. Your Honours,

we would simply submit, too, that the observation

in Loveday which was relied on is one which the

Court should not follow.

Your Honours, people sometimes speak of the

genius of the common law but, if one speaks about
genius in its application to the affairs of the

world, genius is sometimes found to be flawed.

Those are our submissions.

MASON CJ:  Thank you, Mr Jackson. The Court will consider

its decision in these two cases.

AT 4.01 PM THE MATTER WAS ADJOURNED SINE DIE

Theophanous 254 16/9/93