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

[1993] HCATrans 273

..

.

• ~

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 MllO of 1993

B e t w e e n -

DR ANDREW THEOPHANOUS

Plaintiff

and

Theophanous	96	15/9/93
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 WEDNESDAY, 15 SEPTEMBER 1993, AT 10.20 AM

(Continued from 14/9/93)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Castan.

MR CASTAN: 

Your Honours, I had completed what we wanted to

say but for a couple of matters in response to a
question from Justice McHugh concerning the test to

be applied in resolving these questions. I

indicated the possibility of dealing with the
matter in accordance with the General Steel

formula.  Having had the opportunity to discuss the

matter with my learned friends we are in agreement

that we would seek that the matter be disposed on

as though on demurrer, and finally dispose of the

issues in whichever way the Court ultimately

determines them.

The only other matter, Your Honours, is that

overnight an authority was drawn to our attention

which, it seemed to us, is useful in the context of

the discussions that have been occurring, and that

has not otherwise been drawn to the Court's

attention, and it is the case of Coates v The

Citizen, being a newspaper, (1988) 85 NSR (2d) 146.

It is a case in which there is an evaluation although, concededly, a judge at first instance,

and it apparently did not go on appeal on these

issues. A very useful discussion, which we would

commend to the Court, on the evaluation of the

charter of rights and freedoms, combined with the

limitations in the charter about the judgments

about that which is appropriate for a free and

democratic society, balanced against the law of

Theophanous 97 15/9/93

defamation, explicitly, and we felt, given what is

happening generally, that we could not resist

providing to Your Honours a judgment in which His
Honour Justice Richard is able to draw on the

Bible, the Talmud, and the Rubaiyat of Omar Khayyam all within the same judgment, in evaluating the law

of defamation and its history. That seemed to us

to be, perhaps, useful to the Court.

MASON CJ:  Thank you, Mr Castan. Mr Merkel, are you going

to reply at this stage?

MR MERKEL:  Your Honours, we were going to ask if we could

reply after the interveners had addressed the

Court.

MASON CJ:  Do the intervenors propose to present submissions

in both cases, because I would have thought that

the interveners ought to be able to confine their

appearance to one of these cases and present their

arguments, as it were, in one hit.

MR MERKEL:  Yes, Your Honour. We have been given outlines

from at least two of the interveners and we had

understood they propose to present their

submissions in our case. The difficulty we would

have is we would want to be in a position -

MASON CJ: Yes, I follow that.

MR MERKEL:  - - - to deal with their intervention and we are

in the Court's hands as to the most appropriate way

of dealing with that.

MASON CJ:	Mr Merkel, we would have thought the ideal solution would have been for your right of reply to
be postponed until the second case has been heard
in which the interveners could present their
submission, but I understand there is some problem about your - - -

MR MERKEL:  No, Your Honour, that problem has been overcome.

MASON CJ: It has been overcome?

MR MERKEL: Yes, Your Honour, there is no problem. That

course would be certainly one we would wish for.

MASON CJ: There is that possibility. The other possibility

is that you could reply now to Mr Castan's

submissions and then you would have the additional

possibility of addressing the Court again in the

event that the submissions made by the interveners

are such that you feel that you need to respond.

MR MERKEL:  Your Honour, we would submit that it is probably

more efficient and convenient if we replied at one

Theophanous 98 15/9/93

time after the intervention rather than in two

parts.

MASON CJ: Very well, that is acceptable, Mr Merkel. Now we

can proceed with the second case at this stage and

then the interveners can address their submissions

in this case and they can address such submissions
in this case as may have a particular application

to the first case.

MR JACKSON:  Your Honours, may I commence by saying just one

thing about the course that has been adopted. I do

not wish to say anything about the adoption of it.

It is just that one or two authorities to which we

wish to refer may not be copied in time by the time

I get to them, but can I deal with that when I come

to it.

Your Honours, in the second case the

proceedings before the Court involve, of course,

two broad issues, namely, first the defence based

on constitutional grounds and secondly the defence

based on qualified privilege.	May I deal with them
in that order?

Turning, Your Honours, immediately to the

constitutional defence: there are three core - if

I could put it that way - questions which arise in

relation to it. The first is whether the

implication held to exist in the Australian Capital

Television and Nationwide cases, gives rise to

rights enforcable - - -

DEANE J:  Mr Jackson, may I interrupt you and ask you this,

because I am not quite clear on it? What defences

of the nature of qualified privilege are available

under West Australian law, quite regardless of any

constitutional question?

MR JACKSON:  Your Honour, the position in relation to

Western Australian law we have set out shortly in

our written submissions but essentially the

qualified privilege defence that is available is

common law qualified privilege.

DEANE J:  I see. So that was my understanding; there is no

relevant statutory defence.

MR JACKSON:  No. The position in Western Australia - if I

can just say something a little about it

historically - was this, that in Western Australia

the Criminal Code provisions adopted provisions

essentially in the same terms as those in the 1899

Queensland Criminal Code. But, in West Australian

Newspapers Ltd v Bridge, a decision to which we

refer in our written submissions, the Court held by

a majority that because of some differences in the

Theophanous 99 15/9/93

provisions between the Queensland provision and the

Western Australian provision, the Western

Australian provisions as to qualified privilege

were not available as defences in civil

proceedings, although available as defences in

criminal proceedings. The result is, Your Honours,

that because of the particular structure of the

Western Australian Criminal Code and the

terminology used in it, there are some defences

which are available both in civil and criminal proceedings, but relevant defences for present

purposes derive only from the common law.

DEANE J: That answers my question.

MR JACKSON: That is referred to in our written submissions

at page 3 under the heading C, where the present

situation is summarized.

TOOHEY J:  You are not challenging Bridge in any way,

Mr Jackson?

MR JACKSON:  No, Your Honour, no. I should say, Bridge is a

case that represents a 3:2 majority. The question

whether it would be agitated and the correctness of

it would be agitated in these proceedings was

raised at one of the interlocutory proceedings in

this case and the decision was taken not to.

Your Honours, what I was about to say was

this: That in dealing with the constitutional

defence there are three core issues. The first of

those is whether the implication held to exist in

the two cases decided by the Court, to which I have

referred, give rise to rights enforceable and,

Your Honours, I am using the term simply in a

generic sense to indicate rights available as

between individuals. That is the first question.

The second question is, what is the nature and

the ambit of those rights? The third is, of

course, whether those rights apply, to put it

loosely, in respect of the States.

Your Honours, I put those three issues in very broad terms for the moment, and there is a

relationship between the various aspects of them

which we would recognize immediately. May I,

having stated them, come to them in just a moment,

but go first and very briefly to the matter which

was published to indicate the nature of the issues

in a slightly more concrete form.

Your Honours will see that the material which

is sued on is contained in three articles in the

West Australian Newspaper, the articles having been published on 29 and 30 June, and 3 September 1992.

Theophanous 100 15/9/93

The first article appears at page 1 line 55 and it

goes through until page 3 line 30, and Your Honours

will see that it contains a report of an assertion

by one member of the Legislative Council of Western

Australia, that six other members who were the

members of the parliamentary government agencies

committee, had wasted public funds by going on a

trip overseas to examine, in effect, matters that

could perfectly well have been looked after in

Australia. There was also a complaint that the

question of making the trip should first have been

raised in parliament. Your Honours will see, if

one looks at page 2 lines 20 to 25, the way in

which it is expressed has very much the flavour of

Australian politics.

Your Honours, if one looks at the second

article at page 3 commencing at line 40 and going

through to page 6 at about line 6, you will see a

report of the premier's response to the first

member's observations, and then some further

comments by the member, Mr Lockyer, who had first

raised the issue, and you will see, for example, at

page 5 lines 45 to 50, a report of a proposal that

he was making in relation to the way in which trips

of that kind should be dealt with.

Your Honours, the third article appears at

page 6, commencing at about line 15. It goes

through to page 8, about line 16. The matter

relied on as defamatory is at the bottom of page 7,

the last paragraph on that page. Could I come then

to the paragraph of the defence which raises what I

have called the constitutional defence. That is

set out at page 8 of the book.	We would invite
Your Honours to read through it.	Your Honours will

see on reading through it that the publications

related to the plaintiffs in two relevant respects.

One is in their capacity as members of the Western

Australian Legislative Council, and the second is related to the performance by them of their

functions and duties as such.

Your Honours will see also that what is

alleged as part of the defence in subparagraph (f)

is that:

the publication of the articles complained of

and the mode, manner and extent of publication

were reasonable in the circumstances.

The issue which arises for Your Honours'

determination is at page 12, paragraph 7(a):

Is the defence pleaded in paragraph 20A of the

further amended defence bad in law?

Theophanous 101 15/9/93

Could I just say, before coming to our submissions

about the existence of the constitutional defence

at all, that Your Honours will see that no claim is

made by the defence to be able to publish whatever

one chooses about a member of Parliament. What is

relied upon is a defence that the publication and

the way of making it was done in circumstances

where it was reasonable to do so. The claim does

not go as far as the claim in New York Times v

Sullivan, either as to the identity of the parties

involved or as to the circumstances in which such a
defence may succeed.

Your Honours, if I could then proceed to the issues with which we seek to deal in this regard.

The terms of paragraph 20A give rise to a number of

issues, and could I indicate the structure of the

argument we would seek to advance in that regard.

We would seek to say first that there is a freedom

of speech derived from the terms of the

Constitution. I shall not take very long to deal

with that because of the submissions made already.

Secondly, and this is the significant first

point with which we wish to deal, we would contend

that an aspect of the freedom is that it does

create an individual right. The third feature of

it is that we would say that an aspect of that

right is the ability to publish matters defamatory

of members or of persons seeking to be members of a

parliament in certain circumstances.

The fourth aspect with which we wish to deal

is that the freedom to which I have referred and

the rights which we submit flow from it, apply to
the members of the Parliament of Western Australia
as well as to the members of the federal

Parliament.

Could I come then to the existence of the

freedom itself.	The Court's decisions in
Nationwide News and Australian Capital Television,

in our submission, do establish that there is a

freedom of speech in relation to - to put it

shortly - certain persons holding or seeking

political office. The decision may go wider, but

it certainly, in our submission, establishes that

there is a freedom of speech in relation to persons

holding or seeking political office.

DAWSON J: That means that by implication rights are

conferred on all persons in relation to the matters of which you speak, thereby altering the common law

as from 1901 - all by implication.

Theophanous	102	15/9/93
MR JACKSON:	Yes, Your Honour.	Your Honour speaks of the

common law. It is a question of the level of

abstraction at which one deals with that concept.

DAWSON J: Well, altering the law - you do not need to - - -

MR JACKSON: There was no common law of defamation

throughout Australia then because there was - - -

DAWSON J: At altering the law.

MR JACKSON:  Your Honour, the point I was seeking to make,

just in passing, Your Honour - and I will come back

to this - was that it is all right, of course, to

say, if one is speaking as a general historical

concept to speak of the common law at the time when

the Commonwealth came into being and to say it is

the historical foundation. Certainly there is a

common law, of course, that is broadly speaking

where the pot in which the Constitution was placed,

as it were but, Your Honours, of course, if one is

speaking at a level of abstraction not so high,

there just was not, at Federation, any common law

that could be described as an Australian common law

of defamation.

DAWSON J: What, altering the law - - -?

MR JACKSON:  Yes, Your Honour.

DAWSON J: Well now, the two decisions of which you speak

were concerned with the extent of Commonwealth

legislative power, were they not?

MR JACKSON: Well, Your Honour, I am going to come to that,

of course; yes, they were. But it is the question

which follows from that - and Your Honour, I do

propose to come to that in some detail, I accept

what Your Honour says, yes.

DAWSON J: Just that the concept of conferring rights by

implication is a novel concept, is it not?

MR JACKSON:  Your Honour, with respect, no.

DAWSON J: In a constitutional setting.

MR JACKSON:	Your Honour, if one says, for example, that section 7 and 24 give a right to vote, that gives a
private right and I will come to that, Your Honour.

GAUDRON J: But is it really a right so much as an immunity?

MR JACKSON:  No, it is a right, Your Honour. Your Honours,

I am sorry, I am really getting ahead of what I

wanted to say.

Theophanous 103 15/9/93

GAUDRON J: Yes, but are you not simply putting it as an

immunity from liability for defamation in certain

circumstances?

MR JACKSON:  Yes.

GAUDRON J: Rather than a positive right which attracts

legal consequences.

MR JACKSON: Well, Your Honour, what I am contending for in

the particular case is that it results in a

defence, an immunity. Your Honour, could I say,

however, that the coin may have two sides, in the

sense that if someone interfered with the right

then that might give rise to a cause of action.

Now, the relief in the cause of action might be an

injunction, it may be damages - may be damages

would be difficult to prove - but, it might be

simply declaratory. It is not just a matter of

defence, Your Honour, in our submission, although

all we need to establish for present purposes is

the existence of the defence or immunity, however

one chooses to describe it.

Now, Your Honours, could I just say, having simply made the broad observation so far, that the

two decisions to which I have referred established
the existence of a freedom, whatever might be its

precise nature or incidence. Could I say one

preliminary matter in relation to something

Your Honour Justice McHugh said yesterday and it is

this, Your Honours. We do not doubt that the

freedom to which we have referred, and the freedom,

an aspect of which is involved in this case, may,

in one sense, partly in a political or sociological

sense, perhaps, be regarded as an element of a
wider freedom in having freedom of speech; having

application well beyond the circumstances of

members of parliament or any other person
exercising a legislative or executive or judicial

function under the Constitution or in Australia

generally, but it is clear that not all

applications of that freedom, or all possible

circumstances in which the freedom may sought to be

exercised, are ones which have been given

constitutional effect.

Your Honours, the question which arises in the

present case is as to the nature and ambit of a
part of the freedom which, as the two cases have

established, has been given constitutional effect.

I do not think I put that entirely clearly. What I

am seeking to say is this: there is no doubt a

broad concept of freedom of speech, and freedom of

speech in relation to those who are or seek to be

legislators, is an aspect of it. It depends how

one classifies it. But it is clear that the

Theophanous 104 15/9/93

Constitution does not purport to say there is a broad concept of freedom of speech available in all

circumstances where it might be desirable for there

to be freedom of speech.

What was said in the two cases was that

because of the centrality, as it were, of the

concepts of responsible government and

representative democracy that are to be seen in

those institutions in the Constitution, there

should be implied from that a right to criticize,

or discuss at least, matters related to that. That

part is, if I can use an expression which I would

in a sense prefer not to, constitutionalized, but

not every aspect of freedom of speech is.

Your Honours, could I seek to indicate what I

mean by perhaps another example. If one goes to

the judiciary part of the Constitution, what it

says is that the judicial power of the Commonwealth

is vested in this Court and in such other courts as

may be established or with which the power is

invested. The establishment of courts carries with

it a concept of freedom and restriction on freedoms

of speech in relation to members of such courts.

It may be that in a sense the freedom to speak

about members of the courts is something that is
brought about by the Constitution but it would be,

on one view, difficult to say that more was

conveyed by that than that it brought with it the

concept of contempt of court and freedom to speak

subject to the laws of contempt.

There is one qualification to that to which I

will come in a moment, but the point I am simply

seeking to make about it is that if one has the

broad concept of freedom of speech, it does not

follow that every aspect of that concept of freedom

of speech in all circumstances is one to which the

Constitution gives the protection of the kind to

which we seek to refer. I said there was one qualification to what I

was saying about the position of the federal

judiciary. The qualification is this: that

because of the provisions in - I have just

forgotten the number of the section for the

moment - the provision concerning potential removal

by the Parliament of members of a federal court.

It may be that a wider ambit of ability to

criticize is provided for, or to be implied from

that, and that is section 72, of course.

BRENNAN J: That analogy does not really grapple with the

present problem because if it is a true analogy

your argument would be that the constitutionally

entrenched freedom to discuss courts and judges may

Theophanous 105 15/9/93

limit the common law of contempt.	Is that not
right?

MR JACKSON:  Your Honour, may I, in a sense, say what I am

seeking to say? If I can just say, I started off,

and perhaps I have gone into a tangent that I need

not have gone into, but I was really seeking to

answer in advance at this point, they have comment

upon the proposition that freedom of speech in

relation to parliamentarians is part of a larger

concept.	Your Honour, we accept that, on one view
of it.	The point we were seeking to make is that

not every aspect of freedom of speech is, in a

sense, provided for and entrenched in the

Constitution. Sometimes, if it is entrenched, the

extent of entrenchment will vary depending upon the

subject-matter. I then moved to the courts and

said in relation to the courts the position may be

that although there is a form of entrenchment, that

is an entrenchment of a general law of contempt of

court.

The point I am seeking to make about it is this, that it may well be that in relation to the

courts there is, in effect, a core of ability to

criticize the courts that cannot be effected by

legislative action and cannot be effected by

executive or other action. All I am seeking to say

is that outside that, perhaps it can be. The point

I am seeking to make about it is simply that the

way in which the concept of freedom of speech will

be protected may vary depending upon the particular

subject-matter dealt with by the various elements

of the Constitution. When one comes to the

particular case with which we are dealing now, what

we would seek to say is that the nature of it is

such that an element of it is that it gives rise to

the private rights of the kind to which I am about

to refer. I am not certain if that is an answer to

what Your Honour has put to me exactly.

BRENNAN J:  I understand your frames of reference but it

seems to me that there are two basic concepts that

have to be addressed. One is, that the implication

may be no more than the limitation on legislative

power, and then the problem arises whether a

limitation on legislative power ever gives rise to

a personal right as distinct from an immunity which

flows from the limitation. I would have thought

that Cole v Whitfield was instructive on that

point.

The second is whether the Constitution affects

the common law whence private rights arise, and the
question therefore is whether the Constitution has

affected the common law of the tort of defamation.

Theophanous	106	15/9/93
MR JACKSON:	Yes.	Your Honour, I accept the existence of

both those issues and that is what I propose to

deal with really.

Your Honours, could I just say that I do not propose, as I indicated a moment ago, to go into

the detail of the two earlier cases. What I would

like to do is to indicate the steps which lead to
the submissions which we would wish to make in

relation to the first of the central issues, the

nature of the freedom. Your Honours, in that

regard the starting point, of course, is that we
have a system of responsible government, and that

is the system by which the executive is responsible

to the legislature, and that is an element which is

central to the Constitution.

Your Honours, that starting point, or a

convenient reference to that starting point, can be
seen in the observation of Your Honour the

Chief Justice in Australian Capital Television at

page 702, the left column, paragraph A where, in

the course of drawing a distinction between a

constitutional implication and an assumption,

Your Honour said at the top of the page:

On the other hand, the principle of responsible government - the system of

government by which the executive is

responsible to the legislature - is not merely

an assumption upon which the actual provisions

are based; it is an integral element in the Constitution .... . It is part of the fabric on which the written words of the Constitution

are superimposed.

Your Honours, observations to the same effect, in relation to responsible government, can be seen in the dicta of other members of the Court in that case and in Nationwide News.

May I simply give Your Honours the places at

which they may be found: per Your Honour

Justice Brennan in Nationwide News at page 669,

left column, paragraph C; per Your Honours

Justice Deane and Toohey, again in Nationwide News

at page 679, left column, C to G; Your Honour

Justice Dawson in Australian Capital Television at

page 723, left column, C to E; Your Honour

Justice Gaudron in Australian Capital Television at

page 736, left column, A to B; and finally, per

Your Honour Justice McHugh in Australian Capital

Television at page 742 left column paragraph D.

Now, Your Honours, that is the first feature.

Theophanous 107 15/9/93

The second feature is that the parliament,

which is an element of the form of government to
which we have made reference, is a body which is an

elected body and, Your Honours, could I pause at

that point to say two things which derive from

that? One is that the persons who are the

legislators in our system govern, of course, those

who vote in elections, but also govern those who

have no right to vote either because, for example,

they are non-residents or persons who are under

voting age. Your Honours, they are responsible to

those persons, of course, as well as - they have

responsibilities to those persons as well as to

persons who actually vote. Your Honours, funding

for children's services is one thing; they have

responsibility to children.

The second feature, Your Honours, is that

those who are entitled to vote are not the only

persons who are interested in the performance of

legislators or of those who would be legislators.

The governed, whether entitled to a vote or not,

are entitled to be heard on government matters.

Your Honours, educational funding is an obvious

matter and one frequently hears students, both university students and people who are not yet

going to university, making public comments about

topics of that kind.

Now, Your Honours, something of that notion

may be seen in what was said by Your Honours

Justices Deane and Toohey in Nationwide News at

page 680, and Your Honours will see in the

paragraph which commences half-way down the left

column and to the end of that paragraph on the next

page.

Your Honours, if I could return then to what I

was about to say about the parliaments. The

parliaments, of course, are parliaments which are

elected, and that is true in fact both of the

Parliament of the Commonwealth and of the

Parliament of Western Australia, and those parliaments differ, of course, from the Parliament

in the United Kingdom, where only the lower house

is elected popularly or, indeed, elected at all.

If one speaks of the Australian Constitution,

it provides expressly that the members of the

Houses will be popularly elected, and that is

provided for by sections 7 and 24.	The Parliament
must sit, that appears from section 6.	The members

of the executive government must be, or within

three months must become, members of a House of

Parliament. Your Honours, one of the aspects of

representative democracy, in that sense, is the

existence of the vote and the right to vote. In

Theophanous 108 15/9/93

that regard could I refer Your Honours to the
dictum of Your Honour the Chief Justice in
Australian Capital Television at page 702, in the

second column at letter Fin the passage which goes over to the top of the next page, where Your Honour adopted the approach of Justice Stephen in

Attorney-General (Cth) ex rel McKinlay v The

Commonwealth, at pages 55 to 56 of that case, and His Honour in that case referred to the concepts,

which Your Honour has there extracted, as being the

three great principles which emerge from the

Constitution. Your Honours, observations to the

same effect as those in the passage to which I have

just referred may be seen in the reasons of the

other members of the Court, and I would refer

Your Honours to the references which we have given

in paragraph 12 of our written submissions.

Your Honours, so far as the ability to prevent

legislative incursion into the ability to vote in

the Commonwealth Parliament is concerned, one sees

that, to some extent at least, the right to vote is

specifically enshrined in the Constitution. That

appears from section 41 which provides:

No adult person person who has or acquires a right to vote at elections for the

more numerous House of the Parliament of a

State shall, while the right continues, be

prevented by any law of the Commonwealth from

voting at elections -

Your Honours will see that section 41 would

invalidate legislation of the Commonwealth which

would prevent the exercise of a voting right

referred to there but, in our submission,

sections 7 and 24 plainly contemplate that there

will be an individual right to vote.

If one looks at section 7, for example, which

deals with the position of the Senate, it says: The Senate shall be composed of senators

for each State, directly chosen by the people

of the State, voting ..... as one electorate.

Your Honours, if a person who was entitled to vote

in an election of the Senate were prevented from

voting and could not sue a person who prevented the

exercise of the vote, that would, in our

submission, be astonishing. Indeed, at the time

when the Constitution came into being it was well

established that the holding of a right to vote

carried with it a correlative right to sue civilly

a person who prevented its exercise. I will come

to the case in just a moment, but it would seem a

very curious thing if the right to vote which

Theophanous 109 15/9/93

carried with it such a right was a right which had

a diminished version pursuant to the Constitution.

The proposition to which I adverted a moment

ago, namely, that the existence of a right to vote

gave rise to a civil action against a person who

impeded its exercise, was decided in the House of

Lords in the leading case of Ashby v White,

2 Ld Raym 938 in 92 ER 126. In that case,

Your Honours, it was held that a person who had a

right to vote at the election of members of
parliament might maintain a civil action against
the returning officer who refused to admit his

vote.

If one looks at the penultimate page of the

report, the bottom of page 138, one will see what

ultimately is the result. What one sees is that

the judgment which was a majority judgment, in
effect, the court below, was reversed by the House

of Lords and the House of Lords adopted what had

been said by the dissentient, Chief Justice Holt.

What Chief Justice Holt had said appears at

page 136, paragraph 2. He stated, and

Your Honours, this is the other facet of this case

which one finds in the older editions of Smith's

Leading Cases - this is the case that established

the broad proposition that if you have a right you

also have a remedy. The broad proposition is

stated at the start of paragraph 2:

If the plaintiff has a right, he must of

necessity have a means to vindicate and

maintain it, and a remedy if he is injured in

the exercise or enjoyment of it; and indeed

it is a vain thing to imagine a right without

a remedy; for (a) want of right and want of

remedy are reciprocal.

His Lordship goes on to elaborate upon that

proposition through that paragraph, and then if one

comes to about three-quarters of the way down the

page, he says - - -

DEANE J:  Mr Jackson, is this a legislative determination or

a judicial decision when you get 50 members of the

House of Lords overruling the majority?

MR JACKSON:  Your Honour, I suppose one did not have to

worry about the division between legislative and

judicial powers in those days, but could I just

say - - -

DEANE J: It probably does not matter, since it was 1703.

It is interesting though, is it not?

Theophanous	110	15/9/93
MR JACKSON:	Yes.	Your Honour, could I just say in relation

to it though that whatever be the exact

characterization as a matter of distribution of

powers of the decision, it is one that has been

followed judicially, including by two members of

this Court in a case to which I will come in a

moment, and by Your Honour Justice Brennan acting,

no doubt, judicially, and it was referred to in

Nationwide News, I think.

DAWSON J:  What was the remedy which was sought here -

granted?

MR JACKSON:  I think it was an action for damages,

Your Honour. The particular passage is one about

three-quarters of the way down page 136, where

His Lordship said:

This right of voting is a right in the

plaintiff by the common law, and consequently

he shall maintain an action for the

obstruction of it.

Your Honours, I am not a 100 per cent certain that

the actual relief appears entirely exactly from the

case but, if one bears in mind that one is talking

about a common law right at that time, the remedy

would seem to be one for damages.

DAWSON J: But I just wonder whether there was a duty on the

part of a person who sought to prevent him from
voting and whether the remedy was against whoever

it was - the clerk - to allow him to vote.

MR JACKSON:  Your Honour, I do not think that is so. May I

check that?	I do not think it is so because the
case seemed to be much after the event.	One of the

aspects discussed at some point in it was whether
it is the sort of thing that Parliament could

decide after the event, and the undesirability of

that is also discussed. Could I just say also, I

mentioned a moment ago that it is in a sense the

leading case in which the principle that if there

is a right there is a remedy establishes - and I

will come back to it in just a moment -

DAWSON J:	I think it was an action on the case.
MR JACKSON:	Yes.

MASON CJ: That is how it appears in the first sentence of

the Chief Justice's judgment at the top of 134.

MR JACKSON:  Your Honour, it perhaps does not matter very

much in the end what the precise remedy was, but
the position in reality, in our submission, is that

what the case did demonstrate was that the right

Theophanous 111 15/9/93

was a right which was a civil right capable of

enforcement by procedures in court.

Your Honours, could I just say that if one

looks again, and I will not take you to them in

detail now, at the various passages from the two

decisions of the Court, Nationwide News and

Australian Capital Television, the passages to

which we have referred in paragraph 12 of our

written submissions bring out two further features,

we would submit, in relation to the fact of

representative democracy. Your Honours, the first

feature which emerges in that regard from those

decisions, is that to sustain a representative

democracy it is essential there be a freedom of

public discussion of, if I could put it at its

narrowest, the conduct of those holding or seeking

to hold political office, at least in so far as

their conduct relates to their performance in or

suitability for their office.

Your Honours, the passages again in

paragraph 12 of our written submissions tie

together, we would submit, three important matters:

the first is this, that the right to engage in

public discussion is related to, and relevantly

derives ultimately from, the existence in the

governed or perhaps in some of them, of the right

to vote; the second is that the right is to engage

in public discussion and public discussion through

the public media. It is not merely a right to

communicate with politicians. And, Your Honours,

that those propositions are correct, in our

submission, can be seen from some particular

passages.	May I just give the reference to the
passages where those matters appear.	Your Honour

the Chief Justice in Australian Capital Television

at page 703, left column, G; Your Honour left column, E to page 669, right column, D;

Your Honours Justice Deane and Toohey in Nationwide

News at pages 680, left column, D and 681, left

column, B; Your Honour Justice Gaudron in

Australian Capital Television at page 734, left

column, G and following; and Your Honour

Justice McHugh in Australian Capital Television at

page 743, left column, E.

Your Honours, there is a second feature which

we would submit emerges from the concept of

representative democracy which is germane, and that

is that whatever it is, it is constitutionally

entrenched and if it be that the concept is

constitutionally entrenched we would submit, why is

also not the right to freedom of communication on

that concept constitutionally entrenched? In that

regard, could I refer Your Honours to the

Theophanous 112 15/9/93

observation of Justice Brennan in Nationwide News

at page 669 in the right column at the bottom of

the page, the last four lines, after speaking of

the position of the United Kingdom, Your Honour

went on to say:

But where a representative democracy is

constitutionally entrenched, it carries with

it those legal incidents which are essential

to the effective maintenance of that form of

government. Once it is recognised that a

representative democracy is constitutionally

prescribed, the freedom of discussion which is

essential to sustain it is as firmly

entrenched in the Constitution as the system

of government which the Constitution expressly
ordains.

Your Honours, in a sense, one derives from the other, and both derive from the Constitution. That gives rise to the question whether the right or

freedom is, itself, a right which is enforceable at

law, either by way of immunity or by way of right

by a citizen.

Your Honours, we would submit that there is no

very good reason why, if one puts it in the

negative first, the right, if it exists, does not
carry with it the ability to enforce it in

appropriate circumstances and to rely upon it as a

defence, also in appropriate circumstances. To put

it in a more positive way, if there is a right to

freedom of discussion, then it is a right having

limitations for which no, really, very logically satisfying reason appears, the limitations being that it only applies as an inhibition upon

legislative power at times when, one would think,

there is likely to be significant difficulty in its
actual enforcement because enforcement takes place

in a world where there are person who act upon it.

Your Honours, could I say the first thing in that regard is the related right from which the

right to freedom of discussion derives, the right

to vote, is, we would submit, clearly a right which

is enforceable at law.

I have referred Your Honours already to Ashby

v White. May I give Your Honours a reference to

the adoption of that in Attorney-General (Cth) Ex

rel McKinlay v The Commonwealth, (1975) 135 CLR 1

at pages 41 to 42. In the joint judgment of

Justices McTiernan and Jacobs in that case, in the

last five lines on that page, Their Honours, in the

course of dealing with the justiciability of the

claims in that case, said:

Theophanous 113 15/9/93

The right of an individual to vote at an

election is a right protected by the common

law and raises justiciable issues:

Ashby v White. The propriety of the conduct

of an election is a matter of common law in

the absence of a statute -

and they refer to various cases. They say:

The House of Commons after Goodwin v Fortescue

established that it rather than the King in

Council was the Court charged with

determination of the issue -

and so on -

But the question is a justiciable one, not a

political one.

In that case, in those observations, Their Honours

recognize that Ashby v White decided that the right

to vote was a right protected by the common law

raising justiciable issues.

Your Honours, could I just say, without taking

Your Honours to them, that one sees in the decision

in the House of Lords in Neville v London "Express"

Newspaper Co, (1919) AC 368 at, for example 379, a

recognition that Ashby v White was to the effect to

which I have referred, and the discussion also of

that case - if I give Your Honours another

reference - in Constantine v Imperial Motels Ltd,

( 19 4 4 ) 1 KB 6 9 3 .

Your Honour Justice Brennan referred to

Ashy v White in Australian Capital Television at

page 708, at the bottom of the left column, saying:

Whether that freedom is regarded as an

incident of the individual right to

vote ..... or as inherent in the system of

..... government ..... it limits the legislative

powers -

I do not suggest that Your Honour was expressing a

view on the question at all, I simply give that

reference for completeness.

If it be, as we would submit, that the issue

or the right is one which is related to and derives
from the right to vote, or the ability to exercise
the vote, then there seems no especially good

reason why the right would not be treated as

partaking of the same juridical nature, at least to

that extent. Why, if the right is an incident that

flows from it, and if the thing from which it flows

is something which is a right enforceable at law,

Theophanous 114 15/9/93

then the right deriving from it would also not have

that character.

BRENNAN J:  Does that give the writer of the letter to the

editor a right against the editor to have his

letter published?

MR JACKSON: No, Your Honour, no. If I could just say, I am

dealing with the existence of the right.	What I am
trying to say is this:	I accept that there may be

particular questions arising about the ambit of the
right and the manner of its exercise in particular
circumstances, and it may be that there are cases

on the borderline, as there always are. It is

right to say, of course, that the right, whatever

its precise ambit may be, is one that does not take

place entirely in the abstract. Probably it is the

particular circumstances to which Your Honour

refers. If one treats the person to whom the

letter is published for publication as being

someone who is not obliged to publish or not, then

you do not have that aspect. The right is that you

cannot compel someone to do something they choose

not to do.

BRENNAN J: Yes. The difficulty is the assumption that the

word "right" is apposite to describe that which you

are seeking to deal with, because if it is a right

it is enforceable against somebody.

MR JACKSON: Of course, yes, Your Honour. Could I say two

things about that. The first is that if it is a

right, then it is enforceable, Your Honour, I

accept that. In relation to that, the question of
the ambit of the right is a related question, of

course, it is related but it is in one sense

different. The second thing I would say about it

is that I do not really want to, in a sense, put

myself in an absolute category by using the term

"right". What I am using that for is a convenient

term to describe the attributes of the "right"

given by the existence of the freedom.
Now, one aspect of it, I accept entirely, is that it is a right which is enforceable.	I do not

really need to go as far as that, in a sense,

because all we seek to say is that it is an

immunity which we can raise by way of defence but,

Your Honours, we would accept at the same time that

it would be surprising if the coin did not, to use

the expression, have two sides.

DEANE J: Are you saying any more than it is an implied

right similar to the right to travel to Washington?

Even though the right to travel to Washington does not entitle you to tell somebody you have taken his

motor car?

Theophanous	115	15/9/93
MR JACKSON:	Yes.	Your Honour, and I am going to come to

that in just a moment and say it is a right really

rather akin to that, if I could just go to that for

a moment. It is a right, of course, of the

Craddock and Nevada type in a sense and,

Your Honour, one would think if there is a right to come, say, to the Australian Capital Territory to

communicate with the institutions of government

then, Your Honour, if someone were to - if I could
move to the Court, say, rather than the

parliament - prevent me coming to appear in a case

where I was perfectly entitled to appear, it would

seem very odd if I could not, at least, come to a

civil court to have my right protected - - -

DAWSON J: But, you would not be enforcing that right. The

right is an absence of any restriction, and so if someone impeded you they would be assaulting you, they would be falsely imprisoning you, they might

be doing a lot of things, but it is a different

thing.

MR JACKSON:  No, no, Your Honour, they might not be

assaulting, not even threatening to assault me, but

simply saying, for example, "If you enter the

building of the High Court, then you will be
prevented from going into the Court." Or, they

might do it in some other way.

DAWSON J: But, then you would get an injunction against

them - - -

MR JACKSON:  That is a civil right - -

DAWSON J: - - - restraining them from assaulting you.

MR JACKSON: Well, Your Honour, one would simply seek,

really, a declaration that one was entitled to do

it, and a declaration, the foundation for which

would be the existence of the right to enter.	Now,
Your Honour, once one says - - -

DAWSON J: It is still just the absence of any restriction.

MR JACKSON: Well, Your Honour, it is a question of

classification, in a way, if I may say so, with

respect, because it is right to say that there is

an absence of a restriction, but it is a

restriction upon what. There is an absence of any

restriction upon exercising the entitlement to

come, and the entitlement to come, Your Honour, is

something, which, we would submit, derives from,

for example, the provisions of the Constitution

which lead to the view that one is entitled to come

to the central institutions of government

unimpeded.

Theophanous 116 15/9/93

DAWSON J:  The reason why one is entitled is because no one

is entitled to stop you.

MR JACKSON:  The lack of entitlement to stop one coming

derives from the fact that there is an entitlement

to come, we would submit, Your Honour.

DAWSON J:  No, that is the result, that you have a freedom

in the end because of that. The common law does

not prescribe any freedom in those positive terms.

It never has.

MR JACKSON:  Your Honour, if I could just say this - what I

would seek to submit in relation to that, with

respect, is this: what Your Honour is putting to

me and what I am seeking to put to Your Honour in

response to it really derive from two different

conceptions of the effect of the Constitution.

What we would submit, and I say so with respect, of

course, is that the approach taken by Your Honour

is one which really assumes a situation first

without the Constitution, and then applies the

Constitution. The approach which we would seek to

take is one which applies first the Constitution

and then see what effect it has on the other laws,

and what we would submit, Your Honour, is that that

approach is the one covering clause 5 which is

required - - -

DAWSON J: That is a odd way of going about it because the

Constitution certain assumed the common law.

MR JACKSON: Well, Your Honour, it assumed law, but it also

changed it.

DAWSON J:  If you are saying that the Constitution set out

to prescribe something which the law did not, by

way of implication and by way of conferring

specific rights, well then, you say it.

MR JACKSON:  The starting point really is section 5 of the

Constitution Act, and if one simply takes its

words, what it says is, in effect, that the

Constitution is binding on - Your Honour knows the

words, of course -

notwithstanding anything in the laws of any

State.

Now, that must have applied both to statutory laws

and to the common law, and what it said was, in

effect, "Look first the Constitution, see what

comes from that, and then see what the effect is."

Now, of course, one is not talking about a

Constitution that came into force in circumstances of anarchy, but one does have to see what the

Theophanous 117 15/9/93

effect is upon the existing laws, and they

necessarily changed.

DAWSON J:  By way of necessary implication.

MR JACKSON: Well, Your Honour, may I come to what is meant by "necessary'' in the context a little later and I

am sorry I have diverted down a few byways.

Your Honours, the point I was seeking to make

was that if the foundation of the right or the
freedom of speech is the right ultimately to vote

and to elect those who govern and who have the
power to do various things, and if that right is

itself one which is one recognized and protected by

the law, then there is no very good reason why an

incident of it and its progeny should not have the

same character.

Now, Your Honours, the second feature is this,

that the strength of the right is great, in one

sense, but it is evidenced by the fact that it is

an inhibition upon the exercise of legislative

power at the least. Now that is a very strong

thing. It is not some trivial thing, it is a very
strong thing. It is an inhibition upon the
exercise of legislative power by legislatures

otherwise sovereign, and the fact that it possesses

at least that character, militates very strongly,

in our submission, in favour of adopting the view

that it gives rise to rights which are enforceable

and recognized by the courts.

Your Honours, in that regard, we would submit,

it would be a very curious situation if a person

could come to the Court and say, "I am entitled to

have this purported enactment declared invalid,

because it interferes with the constitutional

freedom of speech, which I have, but at the same

time I may not rely on the freedom in defence to a

claim against me by the politician about whom I

spoke".	Your Honours, that seems, we would submit,
a curious thing.

Your Honours, the further feature which would

flow from it, if it is treated only as an

inhibition on legislative power, is this - if it is

treated only as being an inhibition upon

legislative power, then one does seem to have a
situation where the defamation laws may be altered
by the Commonwealth and the States and the

defamation laws may be altered to take away rights

to defend proceedings in defamation in

circumstances where - I am sorry, Your Honours, I

am putting that badly. It is very difficult to

see, with respect, that one can have something

which is an inhibition on legislative power yet at

the same time recognize an ability in, for example,

Theophanous 118 15/9/93

the Commonwealth and the States to alter the

defamation laws in such a way that the freedom,

which inhibits legislative power, could not be

relied upon by way of defence, for example.

What we would submit is that that is not the

right approach to adopt in relation to a protection

or a freedom which is provided for by the

Constitution itself and, as I submitted a moment ago, to adopt that approach does not, we would

submit, give section 5 of the Constitution Act the

meaning which it plainly has.

Your Honours, could I say something a little

more about the common law being the ultimate

constitutional foundation.	May I say two things in
relation to that.	The first is that it has an

historical generality, it is true, but it is not

any more than that. What was established by the

Constitution was a group of new polities with

legislative, executive and judicial powers owing in

a sense as much to the United States as to the

United Kingdom and providing for legislative power which might itself change the common law.

The second feature on the rather lower plane

is that, as I submitted earlier, there was not an

Australian common law of defamation at Federation

and, whatever might have been the position - - -

BRENNAN J:  Do you mean there was not common Australian law

or there was not an Australian common law?

MR JACKSON:  I mean both, Your Honour. Why I say I mean

both is this: first of all, there was not a common

Australian law of defamation. The second thing is

that if one says there was an Australian common law

of defamation, one says in a sense why does one say

that? If one is to look at Australia at the time

of Federation, one cannot give in effect one State

greater weight than another.	One had a situation
where there was no common law of defamation in

Queensland; there was common law of defamation in

other States.	I would not pretend to have gone
through the whole lot of them.	So one says what

was the common law of the Commonwealth, a new

concept that came into being. Why should one say

particularly that the common law rule applied as to

defamation rather than the rule in Queensland.

Your Honour, the only reason why one would say it would be a question of expediency.

BRENNAN J: But does one not understand the common law to be that body of law which governs relationships in the

absence of statute?

Theophanous 119 15/9/93

MR JACKSON:  The term "common law" has a number of meanings,

of course.

BRENNAN J: Well, giving it the meaning which I have just

ascribed to it, there was an Australian common law,

was there not? If the Queensland Criminal Code had

been repealed and the defamation law had gone, the common law of defamation would have been in place.

MR JACKSON: It would have, Your Honour, but can I just say

this: one asks, in a sense, why does one ask that

question -

BRENNAN J: Because the relevant proposition, as I

understand it is, leaving aside the question of the

limitation on legislative power, the argument that

the Constitution created a right necessarily means

that the Constitution altered the common law in the

sense which I have just described.

MR JACKSON:  If one puts it in that way, we would accept the proposition and say, of course it did.

BRENNAN J: Well, then there is only one question left on your argument, I would have thought, and that is whether or not the common law of defamation - not

splitting it up into cause of action and defences -

but the common law of defamation was inconsistent

with representative government.

MR JACKSON:  Could I just say in relation to that that we

would submit that that is one way of approaching

the problem but in a sense what it does is to say,

look first at the common law and then look at what

the Constitution did. If one is to do it that way,

we would submit that that really is to say the

Constitution is to be read in a sense as if it is

to be subject to the common law as it may be or as

it may change.

BRENNAN J:  I do not know that that was the proposition

which I put to you, but if you wish to put it, that

is another consideration.

MR JACKSON:  Yes. Your Honour, what I am seeking to say in

relation to it is this, that if one has a situation

where the question is to be answered by asking

whether the common law is inadequate, or the common

law of defamation would be inadequate for

representative democracy, that is not in a sense,

we would submit, really the correct question. The

correct question is to start from the point of view
of the Constitution itself and to say from that,

from the Constitution, can one derive a notion that

there is a freedom or a right, however one cares to

describe it, which is to engage in public

Theophanous 120 15/9/93

discussion of persons who are involved in politics,

to put it inexactly.

BRENNAN J: Then my question to you must be put in those

terms, namely, allowing that the Constitution

creates a right of free speech, however defined, is

the common law inconsistent with the right thus

conferred?

MR JACKSON: Well, Your Honour, the common law in some

respects is inconsistent with it, yes. What I mean

by that is that it would be possible to have a

system of the common law which provided for various

defences and so on which was the defamation law

and, Your Honour, one I suppose can get along with

it. But having said that, what we would seek to

say consists, I suppose, really of two things: the

first is that if one treats the Constitution as

giving rise to a freedom, then one looks to see a

freedom that is to exist throughout the life of the Constitution. Now in looking at that, Your Honour, the question is whether the common law is to be

treated as, in effect, fixed in time.

BRENNAN J:  I do not wish to continue a debate, but it seems

to me that if you answer the question in relation

to the common law, the discussion from then on
turns on the question of the limitation of

legislative power by which the common law may be

changed. You may seek to attack, for example,

section 377(5) of the Queensland Code as being

inconsistent with the Constitution, or whatever

provision there may be, but that really is a

different problem.	Then you are into the area of
limitations on power.

MR JACKSON:  Your Honour, if one treats it simply as being a

question of limitation on legislative power, the

limitation on legislative power must exist for some

purpose and the limitation on legislative power

would exist to prevent the taking away of

something. Now the something which is to be taken

away, Your Honours, one would think, is a right to

free speech. Now if what one has is a situation

where there has been no legislative act taking that

away, then the point we would seek to make is the

freedom exists, and that is what the defence is

based on.

So, Your Honour, even if one puts it in the

most limited fashion, what we are seeking to say is
that, in the particular jurisdiction in which the
matter arises in Western Australia, the law

applicable was the common law. If there is a

restriction on taking away the freedom conferred by

the Constitution, if that is to be a restriction on

legislative power, it is a very small step to say

Theophanous 121 15/9/93

that the freedom which cannot be legislated away

cannot be relied on by way of defence and action.

DAWSON J: That is putting it around the wrong way; the

restriction is upon legislative interference with

the essentials of representative democracy. You do

not have to talk about freedoms to understand that.

MR JACKSON: Well, Your Honour, with respect, the - - -

DAWSON J: If there is a freedom, it is a consequence, not a

starting point.

MR JACKSON: Well, Your Honour, that approach, we would

submit, does not reflect the broader views taken in

the two earlier cases by the members of the Court,

with respect. Your Honour, I know -

DAWSON J:  I do not understand that to be so.

MR JACKSON: Well, Your Honour, I know was, not of those

views but having said that, the point we would

endeavour to make in relation to it is simply this

that it is not a question of just what is

absolutely necessary to maintain a representative

government. Your Honour, what one is talking

about, if I could perhaps just advance a little in

what I was going to say was this, that the question
whether an implication should be drawn from the

Constitution is whether something is necessarily

implied from the expressed terms of it and,

Your Honours, in a sense, one is saying that

because of A, B follows.

The question is not, in our submission, a

question of a doctrine of necessity, but rather a

question of identifying whether something unstated

flows from something which is stated. Your

Honours, in particular, we would submit, .there is

no very good reason why what is implied is a term

having the minimum rather than the most appropriate

content.

Your Honours, even if one goes to the more

prosaic field of contract rather than

constitutional law, if a court decides that there

should be a term implied in a contract limiting,

for example, the discretion of one party to the contract, a question yet remains about what the
term should be. For example, the choices would
ordinarily be whether the power should be exercised

honestly, or reasonably, but it does not follow, because the term is to be implied, that the only

answer is that the minimal result rather than the

most appropriate result should follow.

Your Honours, I do not know that I - - -

Theophanous 122 15/9/93

DAWSON J:  I thought the Engineers' case had quite a lot to say about that.

MR JACKSON: Well, Your Honour, can I just say that in the

case of the Constitution, if one is seeing what is

to be implied from its terms then one should look

to see, we would submit, what is the appropriate

implication to be drawn from it, not what is the

minimum one, and in that regard, Your Honours, if

what is to be implied from it is the ability to

speak, then it should be the appropriate

implication to be drawn from that.

Your Honours, could I just return to the question of the ambit of the freedom. Now,

Your Honours, in Nationwide News at page 670,

Your Honour Justice Brennan referred to the fact

that the freedom existed not merely as an

inhibition on legislative power, but also as a

restraint on executive power. That is in the

second column on page 670 at the bottom of the

page. Presumably, Your Honour was there referring

to executive power perhaps derived other than from

statute because, of course, if it was an inhibition

on legislative power, then executive action taken

pursuant to the statute would be outside the power

of the statute. I am putting that shortly, but I

am sure Your Honour knows what I mean.

Your Honours, if it is an inhibition upon the exercise of executive power, then there would seem

no very good reason why the executive could not be

restrained from the exercise of something which was

an infringement of the freedom. If there can be,

for example, let us say, a declaration as to the
validity of an enactment which went beyond the

exercise of the power or if there could be

proceedings restraining members of the executive

from infringing the right, then third parties would

also frequently be involved in any infringement of

it. In those circumstances there would seem no

very good reason why the persons involved in the

infringement of the right could not themselves be

restrained - that is persons not themselves members

of the executive but persons who were otherwise

involved in it. In addition to that, if some

person who is not a member of government in any way

acts on his own to infringe the right, the

considerations which would militate in favour of
giving the right in the case of an infringement by
the executive would seem equally strong in favour

of giving the right in the case of a third party.

Your Honours, could I mention two other

things. Your Honour Justice Brennan referred to

Theophanous 123 15/9/93

Cole v Whitfield earlier but, of course, what really remains in a sense for consideration is the extent to which an individual right is given by section 92 in relation to freedom of intercourse. In relation to the freedom of intercourse and the

freedom of personal communication across the

borders, Your Honours, we would simply ask in a

sense: if one is actually stopped from crossing

the border by someone, even if it does not amount

to a trespass, why does one not have a right to

have declared one's right to cross the border?

If one goes to Australian Capital Television

to the observations of Your Honour Justice Gaudron

at page 735, in the second column, Your Honour

there discussed in the last third of that column

the existence of rights in this country of the same
type as those referred to in Crandall v State of

Nevada. Similar observations are referred to by

Your Honours Justices Deane and Toohey in

Nationwide News at pages 680 and 681.

We would submit it seems unlikely that rights

of those kinds would be treated as being simply

limitations on legislative or executive power and

would be treated as giving rise to causes of action

for breach of such rights for reasons similar to

those in, for example, Ashby v White. I do not

know that I can advance our argument on the first

point in a sense further. We would simply say, as

I have submitted earlier, that there is not any

very good reason why the rights should be

restricted to prevent it being available in

circumstances such as the present.

Could I move then to the ambit of the right

which is the second question and, Your Honours, may

I state first what we contend for in that regard,

and then seek to proceed to make it out.

Your Honours, in that regard, we would submit

that the subject-matter of the protected

communication must be matters relating to the

suitability and qualifications of persons holding

or seeking to hold political office, or to continue
to hold such office.

Your Honours, could I also say this, other

persons, that is persons not holding or seeking to
hold those offices, may be affected adversely by
the making of such communications. If the
criticism of them, or the defamation of them is
reasonably incidental to the subject-matter to

which I first referred, that is, to the suitability

and qualifications of persons holding, et cetera, office, then the third parties, as it were, also,

in our submission, would have no cause of action.

Theophanous 124 15/9/93

Your Honours, could I try to explain a little

of what I mean by that, and to indicate the ambit

for which we contend, a little more fully.

GAUDRON J:	The ambit must be wider than what you say, at least on the basis of what was said in those two
cases. It must extend to people who are involved in the government, in the courts, in the government
tribunals. Whether they hold political office or
are candidates for it would seem to be relevant only to your case.

MR JACKSON:  Your Honour, I was about to mention that. What

we would seek to do is this. In the end, the

activity of persons involved in executive
government at all levels are person for whom, in

the end, those involved in parliamentary government

are, in one way or another, ultimately responsible.

That is why, Your Honours, we would seek to say

that in the end the matters which are protected are

matters which reflect upon, or may reflect upon,

those who hold or seek to hold political office.	I
have endeavoured to put it in a relatively short
form, but there would be relatively few cases, or
very few cases indeed, one would think, where comments made in relation to the conduct of, for
example, a senior public servant, might not have
some relationship to the qualification or
suitability of the person who was the minister responsible for that department, for example.
Your Honour, it may be that the right goes beyond what we have suggested and some of the
observations of Your Honours in the two earlier
cases undoubtedly go beyond that and would cover
the whole range of legislative executive and
judicial officers of the governments. It may be
that different and perhaps difficult questions
arise once one gets beyond those who are involved in the legislative aspect and in the executive
aspect in so far as it can be related back to
ministers who are responsible to Parliament.
Your Honour, that is why I mentioned earlier

the question of the judiciary, because it may be
that one way in which it can be said this freedom

of speech is relevantly reflected so far as the

judiciary is concerned, is that it is reflected in

the laws about contempt of court and it may be that
there is a different core element there that cannot

be changed.

Your Honour, the point I am seeking to make

about it is that it may be difficult to work out a

formula which is a formula satisfactory for all

cases to which the privilege might apply, but recognizing that there may be difficulties in

Theophanous 125 15/9/93

covering the field, whatever precisely the field

may be, we would say that within it, at least, are

circumstances of the kind to which we have

referred, and that it is a little difficult to seek

in advance to define exactly the privilege without

dealing with particular cases to some extent. So,

Your Honour, I really cannot embrace in a sense a

formula which covers the whole field, but not

denying its existence, if I may say so.

Now, Your Honours, the next question which

arises is once one identifies a subject-matter, as

it were, that is within the freedom, the next

question is, what is the limitation upon the

exercise of it which is inherent in its nature?

Your Honours, all the cases seem to recognize

that there must be some limitation on the

circumstances in which the freedom can be exercised

and there are differing views, no doubt, about the

relevant criterion to be adopted. New York Times v

Sullivan adopts actual or constructive malice and

takes a very wide view of it. Other views might be

taken. The restriction which we would seek to

advance as being the apposite one is that which
Your Honours have seen in the passage to which I

have referred in clause 20B or paragraph 20A of the defence, namely that the mode and manner and extent of publication must be reasonable in all the

circumstances.

Now, Your Honours, I would propose to develop

the two matters to which I have refer a little

further in just a moment.

What we would seek to say is also this, that

whilst it may be that laws could regulate the

occasions on which the freedom can be exercised, or
laws could regulate the modes by which the freedom

could be exercised, the freedom in the end cannot

be extinguished. Your Honours, a difficult

question might arise - or perhaps it might not be thought to be so difficult - whether a law could, in effect, reverse an onus of proof. It may be a

question, but in the end the freedom has to exist,

it cannot be extinguished by laws. But no question

of extinguishment or of the propriety of a

particular law arises in this case because there is

no law which purports to limit or extinguish the

freedom in this case. Could I turn, then, and

endeavour to - - -

BRENNAN J: There is, is there not? There is the common law

which creates the tort of the publication which you

seek to limit and you have to address that, do you

not?

Theophanous	126	15/9/93
MR JACKSON:	The common law creates the tort, certainly.	I

was speaking of statutes a moment ago. What I was

seeking to say is that the common law itself, of

course, is subject to the Constitution. The

Constitution, on the hypothesis which I am

advancing, gives rise to the right because of

section 5 of the covering clause - - -

BRENNAN J:	Your proposition is - I am sorry?
MR JACKSON:	No, Your Honour. All I was going to say was

because of section 5 - perhaps section 5 is not

necessary - but because of section 5 the common law

is subject to the Constitution. A~ implication

drawn from the Constitution is of a particular

kind, the common law, pro tanto, abates.

BRENNAN J:  Your proposition, then, is that the common law

tort of defamation is restricted to permit

publication of matter of this kind where the mode

and manner is reasonable in the circumstances?

MR JACKSON:	Yes.
GAUDRON J:	When you say publication of this kind, does that

have any qualification other than what appears in

paragraphs (a), (b) and (c)?

MR JACKSON:  No, Your Honour, no.

GAUDRON J:  What I am really asking is this, I suppose: do

you accept on your draft plea that reasonableness

is related to the subject-matter of the

publication?

MR JACKSON:	Yes.
GAUDRON J:	And that is to be encompassed in the first part

of paragraph (f)?

MR JACKSON:  Yes, Your Honour.

GAUDRON J:  So that different considerations might apply if,

for example, it were an allegation of criminal

conduct?

MR JACKSON:  Yes.

GAUDRON J: Yes.

MR JACKSON:  Your Honour, I will come to this a little

later, but of course considerations of the kind

which Your Honour has been putting to me are by no

means foreign to defamation cases. Indeed, I think

I will take Your Honours to it a little later. If

one takes the qualified privilege provision of the

Queensland Criminal Code one sees that the question

Theophanous 127 15/9/93

of good faith is a defined term which contains

criteria which would, broadly speaking, encompass

the notions Your Honour was just putting to me.

Or, I should say, the question of absence of good

faith.

What I was going to say next was that if one looks at some of the observations of Your Honours

Nationwide News Australian Capital fact that the Court was dealing with circumstances

in the and

in which statutes were held to be invalid exercises

of legislative power, some potentially useful tests

were articulated by members of the Court for the

purpose of determining whether legislation

conflicts with the guarantee which would provide

some assistance in determining the ambit of the

right if it is, in fact, a right.

I wonder if I could take Your Honours very

briefly to those references and they would support the proposition, in our submission, that the right

which we are claiming is one which would fall

within it. Could I go first to Your Honour the

Chief Justice in Australian Capital TV at page 705F

at the bottom of the left column. Your Honour was

speaking rather more generally than the submission

we have put, but it is the last paragraph in the

left column where Your Honour drew a distinction

between subject-matter and means, but it is clear

that Your Honour was of the view that -

only a compelling justification will warrant

the imposition of a burden on free

communication by way of restriction and the

restriction must be no more than is reasonably

necessary to achieve the protection of the

competing public interest ..... Generally

speaking, it will be extremely difficult to

justify restrictions ..... which operate by

reference to the character of the ideas or

information.

On the same page in the right column at letter D,

Your Honour said:

If the restriction imposes a burden on free

communication that is disproportionate to the

attainment of the competing public interest,

then the existence of the disproportionate

burden indicates that the purpose and effect

of the restriction is, in fact, to impair

freedom of communication.

Your Honour Justice Brennan in the other case

at page 670D in the right column again adopted

what, if I could use a generic term, was a type of

Theophanous 128 15/9/93

proportionality approach. That is the paragraph

commencing, "By parity of reasoning", and

concluding:

unless the law is enacted to fulfil a
legitimate purpose and the restriction is

appropriate and adapted to the fulfilment of

that purpose.

Could I give Your Honours references also, without

going to them in detail, of Your Honour

Justice Brennan again on that page and also

page 671, and then in the other case at page 708C,

left column, 708G, left column, and 708C, right

column; Your Honours Justices Deane and Toohey in

Australian Capital Television at page 716A to E in the right column, where Your Honours, in the first

new paragraph on that page, discussed the fact that

the implication was not an implication of absolute

and uncontrolled licence and concluded by saying:

do not go beyond what is reasonably necessary

for the preservation of an ordered and

democratic society -

et cetera. Your Honour Justice Gaudron in the same

case at page 739B, in the left column, referred to

"reasonable and appropriate regulation".

Your Honour Justice McHugh in the same case at

page 744C, in the left column, made reference to

the need for "some compelling justification". Your Honour drew the distinction in the right

column at 744B between means and content. At the

top of the next page, again "compelling

justification" in the left column.

Your Honours, if I could come back from that,

having made those observations, to the terms of the

defence itself. Your Honours will see, at page 8

of the book, that the elements of it that are

relied upon are publication of and concerning

elected members of parliament. Your Honours will

see also that the publications relate to the

suitability and qualification of the various

persons to hold office. Your Honours will see the

allegation that the mode, manner and extent were

reasonable and that the subject-matter was relevant

in determining how the electors should vote.

Your Honours, could we just say a couple of things about that approach. Confining the defence

substantially to members of parliament and

candidates does in a sense reflect the

fundamentally electoral nature of the guarantee, as

does the requirement that the material should be

relevant, as also does the requirement that the

Theophanous 129 15/9/93

material should be relevant to voters in

determining for whom they should vote.

We do not adopt the broad public figure test

of New York Times v Sullivan; it goes in a sense

too far. Defamatory matter concerning a person's

private life would only come within a defence of

the kind which we assert, if it were matter

relevant to whether a person should hold public

office. Now, Your Honours, there is, of course, a

question which always arises when one says that or

something along those lines, of the boundary

between private life and public life and the extent

to which conduct in private life may be regarded as

germane to the suitability of a person to hold

public office. And, I think Your Honour

Justice McHugh and I discussed the topic at some

length in Nationwide News and, Your Honours,

differing views on where the boundary line lies may

be held both generally and in particular cases, but

the defence would require that defamatory material

come only within it if it were relevant; whatever

the precise test might be. And the question of

reasonableness raised by the defence would depend
upon a number of factors, of course, but
principally upon whether there was a reasonable

basis for the allegations and, of course, the

absence of any question of malice.

McHUGH J: Well now, could I just ask you about it? You

reject the Sullivan test and the Sullivan test, as

I understand it, arises from the fact that the

United States Constitution protects freedom of speech, but does not protect reputation and there is no express guarantee of freedom of reputation.

Therefore it is more important that truth get out

than reputation be protected, and the Supreme Court

has formulated a test which gives priority to

freedom of reputation. But, what is the

constitutional basis of using ''reasonableness",

even in the sense that you have defined it, as the

criterion for preferring speech over reputation?

MR JACKSON:  Your Honour, I cannot answer that in one word.

One starts from the proposition that, and in a

sense, ex hypothesi, there is an implication to be

drawn about freedom of speech in the Constitution

and which gives rise to a defence. Having said

that, it then becomes a question of identifying

what the criterion is, or if there should be any

criterion, which limits - - -

McHUGH J: Could I just interrupt you to remind myself that,

of course, in our Constitution the right arises

from necessity and there is no express preference

given to speech over reputation.

Theophanous	130	15/9/93
MR JACKSON:	Yes.	Your Honour said it arises of necessity,

we would - - -

McHUGH J: All implications must arise of necessity. Is

that not the legal theory?

MR JACKSON:  The necessary implications are that it may not

be absolutely necessary to have something, but it

may be a necessary implication and, Your Honour,

there is not an exact coincidence of concept, in

our submission.	However, Your Honour, it is
something that arises by way of implication.	So

the first question which arises is, assuming there

is to be an implication drawn, the question is

really, "How far does it go?" It would be

possible, of course, to say that all speech is free

and that there is no defence to such a claim.

Your Honour, because of the subject-matter with which one is concerned, one knows that there

can be many circumstances in which things are said

which are true or true for the public benefit, true
for the private benefit, and there is a whole

category of things. The substratum of a comment

can be true and the comment fair, the substratum
can be untrue, the comment fair on what was said,

and there are many combinations of it.

So, Your Honour, that means that one first has

to say, is it likely that the implication which

should be drawn is one which should have the result

that any publication is protected. The answer that

would be likely to flow from that would be, "no"

because there are just so many circumstances in

which it would be difficult to find, really, any

very compelling, if I could use that word,

justification for adopting a test quite as broad as

that.

It then becomes a question of identifying what

the test should be and, Your Honour, in that regard

the first indication is from the subject-matter.

If the subject-matter is one in which it is an

ability to communicate freely about the performance

- to put it loosely - of those involved in the

institutions of government, then the nature of the

freedom must have a relationship to the institution

of government, the character which is in question.

Your Honour, that takes one, in the particular

case, to persons who are engaged in legislative

activity or who may seek to be, and in dealing with

them, one looks to see, first, what things should

be protected. Your Honour, immediately there

comes to mind there should be protected, to some

extent, communications which have a relationship to

the events or circumstances that give rise to the

Theophanous 131 15/9/93

protection, that is, their office and the functions

performed by virtue of office.

Now, Your Honour, it is at that point, having

identified so much, one comes then to the question

of what the qualification should be. If one

rejects the qualification, there being no

qualification, Your Honour, it does become, and we

would say so, admittedly a question of selection of

what it should be, a test which seems to be one

which is sufficient to give the protection a useful

effect, but one which embodies tests which are

germane to the law as a whole and to the law in the

particular area, namely, a test of reasonableness

as to at least manner of publication, is one which

seems to pick up, in a sense, concepts which are:

(a) generally known to the law; (b) generally

applied; (c) fair; and, (d) ones which

sufficiently effectuate the protection.

McHUGH J: But, it seems to me, with respect, that a test of

reasonableness is about the worst test that you can

get to achieve the goal that you would be aiming

for, because it is a standard. Whatever the value,

or otherwise, of the New York Times v Sullivan

rule, it is a rule and it can be applied and

understood quite readily, but if you invoke a test

of reasonableness, you leave it to, in the end, the

jury to determine what is reasonable in the

circumstances. Surely, that must have a chilling

effect on the publisher? The publisher will never

know what a jury, or a judge, is going to determine

as reasonable until one day the decision is made.

MR JACKSON: Well, Your Honour, in dealing with defamation

of persons other than those to whom we would say
the protection applies, questions of that kind

frequently arise and arise in relation to the very

question left to be decided by New York Times v

Sullivan, the question of malice or absence of malice.

McHUGH J: But, "malice" is used in the very special sense

of knowledge of untruth in, and the onus is on the

plaintiff. The publisher can publish and the

plaintiff has got to show that not only was it

untrue but the defendant knew it was untrue, or

recklessly indifferent.

MR JACKSON: 

If one went - and I will take Your Honour to

the provision a little later - for example, to the
provision of the Criminal Codes dealing with
defamation in Australia, that deals with the
question of absence of good faith, that involves
really almost all the same considerations, all of

which would be germane to the question which

Your Honour is addressing to me.

Theophanous 132 15/9/93

DEANE J: Well, it does not though. You are dealing with

two utterly different things. One is the propriety

of the individual's own actions measured by, effectively, his own standards; the other is

somebody else's judgment of what is reasonable. In

the New York Times test, what it effectively says

is it protects publication which is honest in the

legal sense, not knowingly untrue or not recklessly

indifferent to the truth. That is a completely

different thing from saying you can only publish at

the peril of somebody else saying that you acted

unreasonably, that is, if one reaches that stage.

MR JACKSON:  Your Honour, could I just say in relation to

that that it is easy enough to see why a conclusion

as wide as that - and I accept there is a

difference between the two and, indeed, there may

be a practical difference - but what one sees is

that there really are in a sense different starting

points. The approach taken in New York Times v

Sullivan is one in which effect is sought to be

given to the provision guaranteeing free speech.

Even in doing that, whether it be by identification

of the concept of "free", the meaning of "free", or

whether it be by the imposition of a limitation by

reason of the fact that you have to have some

limitation upon it to make it work, it has been

necessary to identify some test which takes speech

actually made out of the concept of the speech, the

protection for which is given. But one does start

from broad protection given specifically by the

Constitution.

The absence of that provision in our

Constitution in a sense perhaps makes it less

likely, and the fact that one is doing it really by

implication means that it becomes necessary to

determine what freedom should be treated as arising

by implication in the Constitution.

A possible view is that New York Times v

Sullivan, or something like that, is the result.

What we were seeking simply to say is that if one

were to imply the freedom, one would look to seek

to do it by reference to concepts which were, in a

sense, in Australian terms, relevantly analogous.

In that regard, and I will come to this in a

moment, one does see concepts of the nature we have

referred to being ones that are fairly commonly

applied in defamation cases of this kind.

BRENNAN J: It raises the question of: what is the

difference between your test and the common law?

Where does the common law fall short in providing

for reasonableness of publication?

Theophanous 133 15/9/93

MR JACKSON: It falls short, Your Honour, in a number of

ways, I suppose. The first is that the common law

is always capable of being changed.	Unless the
common law is - - -

BRENNAN J:	How?
MR JACKSON:	By legislation, Your Honour.

BRENNAN J: Yes.

MR JACKSON: Unless the common law is incapable of being

changed, then, Your Honour, the ambit of the

freedom, in terms of there being a right that can

be relied upon, is one which is itself capable of

change.

BRENNAN J:  We need not worry about that in this case

because we are concerned only with the common law

background, are we not?

MR JACKSON:  Yes, Your Honour. But the second thing is that

in relation to the defence - could I just say, and

this comes, in a sense, to our second argument on

the question of qualified privilege. If it be that

qualified privilege is given a relatively narrow

meaning - meaning by that, for example, there must

be that it cannot really apply to newspapers -

there must be some reciprocity of interest which a publication of this kind could not satisfy - then,

Your Honour, it is a test which would not apply.

We would seek to say that that is wrong in any

event.

The third thing about it, Your Honour, is this, that if one does have a freedom that derives

from the Constitution, it is a constitutionally

conferred one and it really does not matter what

the common law might say, or might say from time to

time. The common law would abate, in a sense,

pro tanto - I think I used that expression before.

Could I also say in relation to it that the

difference, in a sense, would also be that one

really looks at no more than the matter that is

published, its relationship to the particular
matters to which I refer and also, Your Honour, the

question of whether the publication is reasonable,

in which the question of malice, for example, is a

factor but not the absolutely determining factor.

McHUGH J:  I must say, the thought has occurred to me that

it might be very difficult to strike out your

paragraph 20A, because, having regard to the terms

in which it is pleaded, it is very difficult to

distinguish it from a common law defence of

qualified privilege, apart from the question of

reciprocity, and it goes very close there, when it

Theophanous 134 15/9/93

says that it was published for predominantly people

who had an interest in receiving it. It has

occurred to me that it did not really raise the constitutional question. I know it does in the

last few lines, but it occurred to me those words might always be struck out as surplusage, because

it really pleads a common law defence.

MR JACKSON:  Your Honour, could I just say in relation to

that, that what Your Honour is putting to me may

well have the result that what is constitutionally

entrenched is qualified privilege, and,

Your Honour, we really do not mind, as long

as - - -

BRENNAN J:  So long as you can stretch Bedford's case a

little, you are satisfied then.

MR JACKSON:  I do not know about satisfied, Your Honour, but

not unsatisfied. The type of questions that

Your Honour Justice Brennan was putting to me

really do have the result, in our submission, that

one way or another one comes to the proposition

that there is some defence akin to this, which is

something which is constitutionally entrenched.

BRENNAN J: But the only difference that I derived from your

answer to me before, between your proposition and

the common law, is dependent upon the common law's

view on reciprocity being narrower than you would

wish it to be. That is the only proposition of

legal principle which I understood to be different.

MR JACKSON:  Yes, and I think, Your Honour, the question also of the relevance of malice.

BRENNAN J: Which you say is a material factor, but its

existence is never destructive of the qualified

privilege.

MR JACKSON:  Your Honour, could I also say just one further thing in relation to the matter, and it is this,

that if one does come to a situation where one is

saying what is the difference between this and

qualified privilege, with the underlying notion

being that you do not need to imply this if

qualified privilege is there, what that does

demonstrate, in our submission, is that there is a

need to imply something and that what is to be

implied is that there not only is but will remain,

and remain available by way of defence, some

defence being, for example, common law qualified

privilege.

It is one thing to say that one element of the operation of the notion that produces that result

is that it is a limitation on legislative power,

Theophanous 135 15/9/93

but the very nature of the limitation on

legislative power is that it does not take away an

immunity which is capable of use in a civil action.

Views may differ as to the precise ambit of the

immunity so given, but some relevant immunity

exists.

Your Honours, if one is to say that some

relevant immunity does exist, the question of the
nature of it is one which, in the end, has to be

derived from the Constitution and one should not,

if I may say so with respect, identify the relevant

immunity as being one which is to be determined, a

priori in a way, by reference to common law

concepts of qualified privilege, and that should

not be so for a couple of reasons.

One is that if one were to look conceptually

at the approach, the real starting point is to say,

because of covering clause 5, "What is required by

the Constitution?" The second is, because the

notion of common law qualified privilege may be a

somewhat imperfect starting point in the sense that

it certainly, even at the time of Federation, and

certainly thereafter, has not been regarded by

legislatures, at least, as being an entirely

satisfactory approach. Indeed, Your Honour, I will

for example, that in three States there was a codification of the common law immediately before or shortly after Federation. In addition to those	not go through the history of it but one has seen, provisions were adopted, but later changed to the
deferment of the 1974 Act, where different approaches are adopted. That is why, Your Honours,
it is a possible start, of course, to say common
law qualified privilege is the relevant thing
constitutionally entrenched, but it may not be the
best thing. It may not be the right answer that
flows from it.
Your Honours, could I come then to the question of reasonableness and its appropriateness.
We would submit support for it can be found in some
passages in Nationwide News and Australian Capital
Television. May I just indicate to Your Honours
the various descriptions that have been given and
the passages where they can be found. In Nationwide, speaking about the concept of
reasonableness as a concept generally germane, Your
Honour Justice Brennan used the expression:

by prohibiting criticisms made fairly and

reasonably -

that is at page 671F, in the right column

Theophanous 136 15/9/93

Your Honours Justices Deane and Toohey in

Nationwide at page 678C, in left column, used the

expression, when referring to an analogy with

contempt, "unwarranted" or "unwarrantable". Again, at 682G, in the right column,

Your Honours used the expression "unfounded and

illegitimate.", in contrast to, on the next page,

"well founded and relevant." Your Honour

Justice McHugh, in Nationwide, at page 693, at the bottom of the left column and the top of the right

column, referred to by way of analogy:

the common law right ..... to make fair comments on matters of public interest.

Your Honour Justice Gaudron in Nationwide, at

page 688D, the right column, referred to "fair

criticism". Your Honour the Chief Justice in

Nationwide, at pages 662 to 663, referred to:

genuinely exercising a right of criticism and

not acting in malice.

Also, Your Honour the Chief Justice in Nationwide,

at page 663B, left column, referred to something:

fairly conducted and is honestly directed to

some definite public purpose.

And again, in Nationwide, at the same page: honest criticism based on rational grounds -

Your Honours, I said earlier that there was

nothing unusual in incorporating concepts such as

reasonableness into defamation proceedings, and it

is a test commonly enough seen applied in that

area. Could I in that regard refer Your Honours to

section 377 of the Queensland Criminal Code. I

suspect Your Honours may not have copies of that.

Could I give Your Honours copies after the luncheon

adjournment.

MASON CJ:  I think we all have it.

MR JACKSON:  Thank you, Your Honour. What I was going to

say was this: if Your Honours look at section 377,

the structure of it is this, that it provides in

the opening words that:

It is a lawful excuse for the publication of

defamatory matter -

Eight occasions of qualified protection are then

set out. Your Honours will see that each of them

is prefaced by the words "If the publication is

Theophanous 137 15/9/93

made in good faith". If I could pause there, the

burden of proof of good faith appears from section

378, and it is the party who is the plaintiff who

has to prove absence of good faith if the

privileged occasion is otherwise established.

Your Honours, the question of the absence of

good faith or the presence of good faith is dealt

with by the last paragraph of section 377.	You
will see that it is:

a publication is said to be made in good faith

if -

and then several criteria are then set out.	The
first is relevance, the second is:

if the manner and extent of the publication

does not exceed what is reasonably sufficient

for the occasion -

then one goes on to motivation and belief. The

only point I seek to make about it, Your Honours,
is this, that the test of reasonableness as to the

manner of publication may there be seen already in

defamation law.

Could I refer also to section 384 of that

Code. Your Honours will see that that is a

provision that gives a defence to the publisher of

a periodical if matter is published -

without his knowledge and without negligence

on his part.

The absence of negligence inevitably involves a

consideration of the reasonableness of the conduct

of the publisher.

The question of reasonableness also may be

seen referred to specifically as a criterion in the

New South Wales Defamation Act 1974, and that gives	rise to a statutory defence of qualified privilege.
Section 22(1) says:

Where, in respect of matter published to any

person:

(a) the recipient has an interest or apparent

interest in having information on some

subject;

(b) the matter is published to the recipient

in the course of giving to him information on

that subject;

Theophanous 138 15/9/93

(c) the conduct of the publisher in publishing

that matter is reasonable in the circumstances

and if those three tests are satisfied, the

subsection goes on to say -

there is a defence of qualified privilege for

that publication.

So, Your Honours will see a test of reasonableness

as to the conduct of the publisher being something

which appears in that law also.

Now Your Honours, of course, the only point,

as I said, that I seek to make from that is that in

the area of defamation, the test of reasonableness

is not one which is new and, of course, the test of

reasonableness is one which is not unknown in other

areas of the law.

Your Honours, as to the application of the

defence we advance to the various persons whom we

have submitted are covered by it, Your Honours will

see reference to comments about members of

Parliament and candidates for election in

Nationwide per Your Honours Justices Deane and

Toohey at page 681 and in Australian Capital

Television at page 737 per Your Honour

Justice Gaudron and page 743, Your Honour
Justice McHugh. As to candidates, Your Honours, at

the same pages in those three reasons for judgment.

If one turns to the relevance of their

qualifications, conduct and performance, one sees

reference to those matters in, for example,
Your Honours Justices Deane and Toohey in

Nationwide at pages 681 and 683.

Your Honours, reference is made also to untrue

and mistaken comments. That is dealt with by

Your Honours Justices Deane and Toohey at page 681.

I will come back to that a little later if I may.

Your Honours, generally speaking, the three

defences, absent the defence presently in question, which are available to an action for defamation in respect of say, an elected member of Parliament,

would be, in broad categories, justification, fair

comment, qualified privilege.

If a common law privilege is given a

relatively narrow ambit, it will not generally be
relevant as a defence to a defamation action by a

politician, and a publisher needs to rely then on

fair comment and justification. Fair comment is a

defence which is relatively narrow. Not so much as

Theophanous 139 15/9/93

to the comment, but as to the facts upon which the

comment must be based. Your Honours, it is a

defence which is relatively rarely pleaded and, I

supposedly inevitably, less often successful.

Your Honours, a defence of justification, in

circumstances where a truth by itself is a defence,

will only succeed where a defendant can prove that

the allegations were substantially true.

Your Honours, because of the ambit of the defences

of qualified privilege, if it is given a relatively

narrow operation, and fair comment, a publisher

generally has to be prepared to justify.

Your Honours, we would submit that the need

for that to happen or the need for the person

publishing, who is not always of course - I should
say the persons sued are not always of course the

long pocket but sometimes the person who in the

first. place has made the observation as well. The

need to be able to prove the truth is a substantial

infringement of the implied freedom.

We would submit that the ability to make

allegations which in the event are not correct but

which are based on reasonable grounds is something which is essential to the working of parliamentary democracy. I do not want to go through the detail

of this, but may I simply seek to summarize what we

would say about it. It is one thing to know that a

fact is true, to know that a fact is true. It is

quite another to be able to prove to the

satisfaction of a court that it is in fact true.

The second thing is that generally speaking,

and speaking in very much the broadest terms, the

more serious an allegation, the more difficult it

may well be to prove its truth. The more it may

have been concealed, many other factors occur.

A person also may well be able to prove something is true but be held back from publishing

it in case that person is unaware of other facts

which might change the complexion of it, or because

that person is worried about the crippling

defamation verdict, or is worried about the time,

expense and inconvenience of a defamation action

against that person because it is not always just

the publisher, in terms of the media publisher,

which is sued. Sometimes the media publisher is

not sued at all but the person who made the

assertion in the first place is.

One knows, sometimes, of jurisdictions in

which it is quite an art form for politicians to

sue regularly for defamation and the effect,

inevitably, is to have some restricting effect even

Theophanous 140 15/9/93

on their direct political opponents when they sue

them. It is an area in which one has seen that

occur in some jurisdictions in Australia in the not

too distant past.

Your Honours, it also cannot be the case, we

would submit, that voters are only entitled to take
into account, in voting for a candidate, matters

which are capable of being proved to be true to the

satisfaction of a court of law. And in those

circumstances we would submit that the Supreme
Court of the United States was correct in its observations in New York Times v Sullivan

376 US 254, in the observation at page 279, to

which the Court already has been taken.

Your Honours, would this be a convenient time?

BRENNAN J:	Mr Jackson, you have thus far skated fairly lightly over the narrowness of the qualified
privilege.  Do you propose to develop that?
MR JACKSON:	Yes.
MASON CJ:	The Court will adjourn until 2.25 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

MASON CJ: Yes, Mr Jackson.

MR JACKSON:  Your Honours, may I deal with two matters before proceeding. The first is that I made an

error this morning when I was referring to

section 41 of the Constitution and its effect.	I
had not adverted to, and my learned friend has been

good enough to remind me, of the Court's decision

in Reg v Sipka, (1983) 152 CLR 284. In that case,

what was held was that the operation of section 41
was spent in effect once there came into being

Commonwealth electoral laws. That does not in the end affect the submission I was making, I think.

The second thing is, Your Honours, could I

deal immediately with the issue that was raised by

Your Honour Justice Brennan shortly before lunch

about the differences between what we are

suggesting on the one hand, and qualified privilege

on the other or, as I think Your Honour might have

said, what is wrong with qualified privilege. In a

Theophanous 141 15/9/93

sense, nothing is wrong if one makes two

assumptions.

The first assumption is that it is something

which is constitutionally entrenched, if I could

use that expression. The second qualification is

really this, and it arises from my learned friend's
argument: if my learned friend's argument is

correct and that there has to be a reciprocity of

interests, with the result that a newspaper

publishing a matter of this kind in the

circumstances in which it did could not attract

qualified privilege or could not have the benefit

of qualified privilege, then the defence of

qualified privilege does not go far enough.

That has a related aspect again which can be seen in our learned friend's written submissions,

and that is a notion which one may see in, for

example, Loveday v Sun Newspapers in some of the

dicta of members of the Court in that case, that

the public interest which gives rise to the

occasion of qualified privilege cannot in a sense

be created by a newspaper; the newspaper really has

to come in at a point after the creation of the
subject of public interest.

Your Honours, we would wish to contend that neither of those propositions is correct but, if we

are wrong on that, then the ambit of qualified

privilege would not, in our submission, be

sufficiently wide to reflect the considerations

underlying the constitutional right.

Your Honours, there is a third aspect to it

and it is one to which I adverted earlier and that

is the question of absence of malice. That,

although a major matter in practical terms, may in

the end not be very much more than a question
whether it is a matter of onus of proof or not.

And perhaps there is a final aspect to it,

Your Honours, which is a question really of

approach to be taken. Should one start from a

concept of qualified privilege to be found dehors

the Constitution and try to mould or massage that
to fit or use it because it is the next best thing,

or should one start from the Constitution and say,

what is the implication to be drawn from it.

Your Honour, I have made that point already.

Allied to the point I have just made is the

fact that if one is looking to see what is

qualified privilege, there in a sense does not seem

a particularly good reason why one would start,

say, from the common law as distinct from another
version of qualified privilege which you will see,

say, given statutory effect in the Queensland

Theophanous 142 15/9/93

Criminal Code. It is all right to say, of course,

that the common law is what is there when the

statutes have no longer effect, but if the Court is

looking to see what should be the constitutionally

entrenched provision, then one would look to see

what is the most appropriate provision rather than

simply selecting what might be the common law.

Your Honour, I do not know that I can take that

further.

BRENNAN J: What that comes to, Mr Jackson, is that if your

argument on the scope of qualified privilege
prevails, then however one puts it in terms of
theory, the result is that it is not open to a

State legislature to restrict the scope of the

common law tort of defamation by expanding the

defences.

MR JACKSON:  I am not certain I understood what Your Honour was putting to me then, I am afraid.

BRENNAN J: If your argument on the scope of qualified

privilege at common law prevails - - -

MR JACKSON:	I am sorry, I thought Your Honour said fails.
BRENNAN J:	No, prevails, if it prevails, then whatever the technical basis is on which you put it, what it
comes to is that the State government cannot by
restricting defences enhance the scope of the tort
of defamation in the areas of political discourse.
MR JACKSON:	Your Honour, the answer is yes with, I am

sorry, a qualification. The answer is yes in this

sense: if it is right to say that what is conveyed

by the constitutional implication is qualified

privilege.

BRENNAN J: Yes, as you would contend it to be, as you would

contend qualified privilege to be.

MR JACKSON:  Yes. That is our second position in a sense, but not the first. Now, Your Honours, could I come

back then to what I was dealing with. observation in New York Times v Sullivan at page

279 and following, as observations which

demonstrated the appropriateness of there being a

rule which did not require the proof of truth. I

do not want to take Your Honours to the passage

because Your Honours have gone to it already. May

I just say that there are statements in a number of

other cases which support the proposition that a

defence of this kind is appropriate as an incidence

of a representative democracy.

Theophanous 143 15/9/93

In that regard, may I have Your Honours the

references and take Your Honours to only two of

them.	The first is Australian Consolidated Press v
Uren, (1966) 117 CLR 185, at page 210.	The second,

and one to which I will take Your Honours, is

Calwell v Ipec Australia Ltd, (1975) 135 CLR 321.

There are three passages to which I wish to take

Your Honours in that case. The first is at

page 331 in the judgment of Your Honour the present

Chief Justice, which was the principal judgment in

the case, and Your Honours will see commencing at

about point 5 on page 331, discussing the purpose

of publication of the newspaper, Your Honour goes
on to refer to the subject-matter of it, about
two-thirds of the way down the page, and then said:

It is beyond question, having regard to the national importance of the subject -

which Your Honour defined -

the readers of the newspaper had such an

interest in knowing the truth as to make the
respondent's conduct in making the publication
reasonable in the circumstances.

True it is, Your Honour, that what Your Honour was speaking of was the question whether the

statutory test was satisfied by the events which

had occurred. But, it is equally true to say that

the adoption of that view by the court does contain

a reflection of the court's view of the relative

importance of the public interest in these matters.

That that is so appears also in the two other

passages of the case, which are material. The

first is at page 333, again in Your Honour's
reasons for judgment, a little before half-way down

the page where speaking of Mr Calwell, Your Honour

said:

The plaintiff's stature in the political life

of this country was such as to make the

disclosure of this information a matter of
public interest and importance - yet there is

nothing so extraordinary in the information
provided as to suggest -

et cetera. It is in the next paragraph that

Your Honour sees the observation referred to by, I

think, my learned friend, Mr Castan.	No doubt that
is an appropriate qualification, too.	But those

two passages, read with a third passage in the

case, that of Justice Jacobs at the bottom of

page 335, going to the top of page 336,

demonstrate, in our submission, that the

publication of political matters of this kind is a

matter of very great significance - the ability to

Theophanous 144 15/9/93

publish, I mean. Your Honours will see at the last

five lines on page 335:

I find it hard to imagine a subject matter

which should in our democracy more freely be

able to be discussed -

Your Honour, "be able to be discussed" means

be able to be discussed without being sued

successfully for saying it, for discussing it.	The
reference in the penultimate line on that page,

"the greatest public good'', and at the top of that
page, "The public are entitled to the views" et

cetera. Whether they be "correct or incorrect". Your Honours, this is the stuff of or matters at

the heartland of the exercise of rights which are

at least democratic.

In all Your Honours' reasons for judgment, I think in the two cases to which we have referred,
there is a reference to the passage from Attorney-

General v Times Newspapers Ltd, (1974) 273 AC 315, where the proposition to the same effect is stated.

We would refer also to the observation of Your

Honour the Chief Justice in Commonwealth v John Fairfax & Sons Limited, 147 CLR 39, at page 52.

Your Honours, could I, before going to that, just say that the test - as Your Honours will see

in our written submissions, I think, a reference to

the particular passage from Times Newspapers

Limited case. It is in paragraph 14 of our written

submissions, where Your Honours will see the

various references in the two earlier cases are

there set out.

Indeed, Your Honours, as that case

demonstrates and as that case says specifically,

and as one sees in the underlying circumstances of

Calwell's case, these rights are commonly exercised

through the public media. Your Honours, I was about to refer to the

Commonwealth v John Fairfax & Sons at page 52 and

Your Honour speaks at the top of page 52 at the end

of the first paragraph that:

It is unacceptable in our democratic society

that there should be a restraint on the
publication of information relating to
government when the only vice of that

information is that it enables the public to

discuss, review and criticize government

action.

May we refer also, Your Honours, to the observation

in the Privy Council in Hector v Attorney-General

Theophanous 145 15/9/93

of Antigua, (1990) 2 AC 312 at page 318. It is the

first new paragraph on page 318, and I think

Your Honours have been taken to its terms

yesterday.

Your Honour Justice McHugh referred yesterday

to the question of truth in the context of saying

why should there be an ability to publish untrue

things about people just because they are

politicians. We would simply say this, that the

instances ,where already - and by "already" I mean
absent any question of the constitutional defence -
a statement, though untrue, may be protected by the

laws of defamation arise really in respect of, I

think, almost every other defence other than truth.

It is by no means an unusual circumstance for

that to occur. Of course, in some jurisdictions

the obverse applies and that truth is not

sufficient. In particular, if one goes to the

provisions of the Codes, truth and public benefit

is required. That was the case for quite some

years in New South Wales as well between 1958 and

1974.      The present situation in New South Wales,

without going into undue detail of it, is that,

pursuant to the Act, one has a situation where the

cause of action is framed in respect of each

imputation, and there are defences of truth

available, but what is required also is that the

publication be in the public interest.

So that, Your Honours, the truth in common law

of course has been a defence - truth simpliciter -

but, if one looks at the defamation situation
generally, it is not always a defence, nor is the

fact that something is untrue necessarily not a defence. I do not want to go into detail about

that, but I am simply seeking to say that the

question of truth is not in a sense the be all and

end all of it and really has not ever been.

Your Honours, could I move then to the last

aspect with which I wish to deal on the question of

the constitutional defence. I propose to move

after that to the question of qualified privilege.

It is in a sense difficult to know which to do

first, but undoubtedly some of the submissions
which I wish to make in relation to qualified

privilege may have a bearing on the earlier matters

which I have said. If I may, with respect, ask

Your Honours to bear that in mind - or preferably, in a sense, not to bear it in mind.

Your Honours, a third aspect with which I wish

to deal is the question of the implications to be

drawn from the Constitution in relation to the

position of the States. Could I start by saying

Theophanous 146 15/9/93

that statements of a number of members of the Court

in Nationwide News and Australian Capital

Television suggest and suggest, with respect, very strongly, that the constitutional guarantees,

whatever may be their precise ambit, do apply to

the States.

May I take Your Honours to those passages to

identify the bases that were there relied on. The

first is if one goes to Nationwide News at page 671

in the reasons for judgment of Your Honour

Justice Brennan. Your Honour there raised, but did

not decide finally, the question of the application

of it to the States. At page 671C and D, in the

right column, Your Honour referred to the fact that

the limitation was on the legislative power of the

Commonwealth. Well, Your Honour, perhaps I am

undervaluing what I am about to say.	What
Your Honour there said was:

the implication with which we are here

concerned is a limitation on the legislative

power of the Commonwealth. True it is that

the limitation, being implied in the

Constitution, may be capable of affecting the

laws of the State, at least if those laws

purport to impair the exercise by the people of their democratic rights and privileges in federal matters.

It is right I think to say that Your Honour did not

touch further upon the question of the application

of the right to the States.

Now, Your Honours, if I could stay with the

same case for a moment. The issue is dealt with

more fully by Your Honours Justices Deane and

Toohey at page 681 in the passage which commences

in the second column in the first new paragraph on

that page.	The passage is the passage
commencing"The implication of freedom of

communication", and it goes over to the end of the

next paragraph on the next page.

Now, in that passage, what Your Honour do is

to say that the implication most obviously applies,

of course, in relation to the Commonwealth rather
than other bodies, and then Your Honours proceed to
refer to the connection between the three levels of

government and, in particular, refer to the

position of the States, both as a matter of

constitutional reference and also as a practical

matter, and I am looking at page 681 about a third

of the way down the page, to the distribution of

taxes.

Theophanous 147 15/9/93

Political parties or associations are likely

to exist in relation to more than one level of

government -

and Your Honours proceed to say that it would be

unrealistic to confine communications only in

relation to Commonwealth governmental institutions.

I will not point out particular parts in the

remainder of that passage, but we would submit that

is a correct approach to the matter, and in

particular, one does see both in the Constitution

itself particular references to the position of the

States, the nature of that position I will come to

in a moment. One sees also in the Constitution

references to the financial relationship between the Commonwealth and the States, albeit, in some respects in a fairly ephemeral and basic way.

One sees also the position that the States play in relation to important matters, such as the

question of amendment of the Constitution. By that

I mean the requirement, of course, that there be

requisite majorities, and so on. One sees that it

is not just a matter of saying these things appear

from the words of the Constitution and that the

Constitution operates in a vacuum. What one does

see is that the Constitution operates in

circumstances where, particularly, observations
dealing with any political subject are likely to be

observations which have or potentially may have an

effect both federally and at a State level.

That is particularly so because, for example, any subject which is a subject of Commonwealth

legislative power under section 51 is not a subject

of exclusive Commonwealth legislative power. A

section 51 subject is one which may be the subject
of legislation by the States, and inevitably in all
such circumstances the relationship between the

Commonwealth and the States arises, for example, in

relation to section 109.

Your Honours, it becomes very difficult in

circumstances of that kind to adopt the view that

there is a complete dichotomy between the

implication that should be drawn in relation to the

Commonwealth and the implication that may be drawn

in relation to the States. 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 derive their existence as States is to be found in
Federation there were no colonies, but there were

section 106. Your Honours, I know immediately that

Theophanous 148 15/9/93

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 Constitution.

Your Honours, I was referring to the passages

of Your Honours Justices Deane and Toohey in

Nationwide. May I go to Australian Capital

Television where the other passages relevant for

present purposes may be found. The first is to be

seen, again by Your Honours Justices Deane and

Toohey, in that case at page 716. What

Your Honours will see there in the left column, in

the first new paragraph, where Your Honours say in

the fourth line of that paragraph, in Nationwide

News:

it was unnecessary for the purposes of that

case to determine whether the Constitution's
implication of freedom of communication was

confined to communications in relation to the

Commonwealth ..... instrumentalities ..... as

distinct from State -

ones. Your Honours then refer to a passage from

the earlier case, and at the bottom of that

paragraph say:

It is necessary, for the purposes of the present case, to reach a firm view on the question -

and Your Honours then adopt the reasons of

Your Honour Justice Gaudron, and the reasons

earlier given by Your Honours. That is at the top

of the right column on that page.

Now, Your Honours, in the same case

Your Honour the Chief Justice dealt with the issue

at page 704G, in the right column, saying

correctly, with respect, in our submission, that:

Public affairs and political discussion are

indivisible and cannot be subdivided -

and Your Honour said at the bottom of the page the:

consequence is that the implied

freedom ..... extends to all matters of public

affairs and political discussion,

notwithstanding that a particular matter -

Theophanous 149 15/9/93

et cetera. The passage goes over to the top of the

next page, letter B.

Your Honour Justice Gaudron at page 736 - - -

MASON CJ: All these passages have been read, Mr Jackson.

MR JACKSON:	I am sorry, Your Honour, the issue is one that arises more exactly, in our case, and I was simply
seeking to identify the passages that dealt
precisely with this part, and what I was going to
seek to say from that was that although it is not
correct to say, I suppose, that in any one of the
two cases one finds a majority in members of the
Court saying that the freedom extends to the States
or, perhaps, it may be derived from the ACT TV
case. That seems to be the effect of it. The
question of what the ambit of the freedom is is a
different question, of course.  Your Honours, I was
simply going to say that page 736 to page 737,
Your Honour Justice Gaudron.

Now, Your Honours, what we would submit is

that it flows from those propositions that an

implication which destroyed the concept of

representative democracy, at least in respect of

the more numerous houses of the States - I am

putting that badly. What I am seeking to say is

that it follows, we would submit, from the

existence of the implication, that first a law

which sought to infringe the freedom of

communication in relation to members of the

parliaments of the States, at least in relation to

the more numerous houses, would be one which could

not be validly made and we would say, for reasons

similar to those we have advanced before, the same

situation obtains in relation to the existence of

rights to defend proceedings on the basis of the

freedom.

Your Honours, the present case, of course, deals with Western Australia, and in addition to

same considerations derived from the fact that the system of representative democracy in Western Australia is, itself, in terms of the law of the State, constitutionally entrenched.

the implications that might be drawn from the exactly the

In that regard, may I take Your Honours to our

written submissions where we have sought in the

first section of it to indicate the provisions

which apply in Western Australia, and may I also

take Your Honours to the terms of the
Constitution Act 1899 of that State which has to be
read with, in a sense, the Constitution Acts

.Amendment Act of 1899. In paragraphs 1 and 2 of

Theophanous 150 15/9/93

our written submissions we there set out the

background provisions providing for election -

there refer to the provisions providing for

election to the legislative council. Your Honours

will see in paragraph 3, if one goes to section 73

of the Constitution Act 1889, it provides in its

opening words that the legislature:

Subject -

of course -

to the succeeding provisions of this

section ..... shall have full power and

authority ..... to alter any of the provisions

of this Act.

It goes on to provide, however, for provisions

which entrench the legislative council and the

legislative assembly, and then particularly,

Your Honours, there must be an absolute majority for a law which changes that Act itself, and that

Act only, if I could pause at that point. That was

decided by the court in Western Australia v

Wilsmore, to which we have given the reference.

But, in addition to that, one sees from the

provisions of section 73(2), that a bill which

either - and I refer to paragraph (b):

expressly or impliedly provides for the

abolition of the Legislative Council or of the

Legislative Assembly;

Or, Your Honours will see, subparagraph (c)

similarly:

provides that the Legislative

Council ..... shall be composed of members other

than members chosen directly by the people;

Then at paragraph (e) provides for an amendment of	provisions including section 73 itself, the double	entrenchment provision must, to put it shortly,
have been approved by a majority of electors of the
State at a referendum. And that is ~=ovided for by
paragraphs (f) and (g) and subsections (3), (4), (5) and (6).
In circumstances of that kind what one has is that there is no reason, we would submit, in
principle, why an implication of the kind drawn from the Commonwealth Constitution could not be
drawn from a Constitution of a State, regardless of the question of the effect of section 106, or indeed, with respect, regardless of any question of the effect of the Commonwealth Constitution
itself - in relation to the States,~ mean. If one

Theophanous 151 15/9/93

has a situation where, except by following out the

means provided by the Western Australian

Constitution for its own amendment relevantly, and

there could not be an amendment of the provisions

which provide for the representative democracy in

the legislative assembly and the legislative
council, then one has a situation where those are

constitutional provisions themselves giving rise,

in our submission, to implications of the kind

drawn from the Commonwealth Constitution itself.

Your Honours will have seen that

section 73(2)(c) uses the words ''shall be composed
of members other than members - - -

DAWSON J:	The ones we have do not have (2)(c).
MCHUGH J:	You need the reprint.
MR JACKSON:	Your Honour should have it, if I can put it

that way. It is quite an important provision.

DAWSON J:	I think we may have the wrong copy.
MR JACKSON:	Your Honour, it should be the Constitution Act

1889.

MASON CJ:	73 is separate in the document I have.
MR JACKSON:	I am sorry, the version I have is a version

reprinted.

BRENNAN J: It seems it was amended, was it, Mr Jackson?

MR JACKSON:  I am sorry, Your Honour?

DAWSON J: It must have been amended.

MR JACKSON:  Yes. I gather from my learned friend, the

Solicitor-General for Western Australia, the papers

Your Honours have in this regard include this

document, the Constitution Act 1889, which has then

a long title following it, and then the next part

is Part VII, Miscellaneous, which includes

section 73 in that form. Your Honours, in the

light of what has happened, may I just go back very

briefly to it. If Your Honours have section 73,

what Your Honours will see is that section 73(2)

says, "A Bill that", and then Your Honours will see

paragraph (b) dealing with abolition of both

Houses. Then section 73(2)(c) deals with a bill

providing that either House:

be composed of members other than members

chosen directly by the people -

Theophanous 152 15/9/93

Your Honours, "chosen directly by the people" -

words redolent of the Commonwealth Constitution.

Your Honours will then see paragraph (e) which is

the double entrenching provision entrenching

section 73 itself. It then goes on to say that

such a bill or a bill which satisfies any of those

criteria is not to be presented for assent until,

to put it shortly, there has been a referendum.

McHUGH J: But assuming subsection (2) was put in after the

Criminal Code provisions, is it your argument that

this impliedly repealed the Criminal Code

provisions, at least so far as criminal defamation

is concerned?

MR JACKSON:  Your Honour, what one would do in relation to

section 73 is to draw the implication from it that

there was, as a consequence of entrenchment of it,
the ability to criticize, and it would work, in

effect, an implied repeal, pro tanto, of the

defamation law.

Now, Your Honour, could I say in this regard,

one is not really treating section 73 as a

provision of the same status as the Criminal Code,
because it is a provision that is an entrenched

provision and it is - - -

MCHUGH J: It is still a statute.

MR JACKSON: Well, Your Honour, but it is a constitutional

statute.

McHUGH J: But it can be changed by a simple vote, can it

not, apart from these provisions that

subsection (2) deals with.

MR JACKSON:  Yes, Your Honour, and it is a statute for which

the legislators include the people. I mean one

could say, with respect, the same about the

Commonwealth Constitution as it is now. Its

origin - Your Honour, I do not want to get into

undue debate about how it started and what it is

change. It is capable of change by, in

now, but at least what one can say is that the capable of

effect, elements of the legislature and the people.

McHUGH J:  The important difference is that no part of the

Commonwealth Constitution can be changed without a referendum, but almost all of this Act can be changed without a referendum.

MR JACKSON:	Your Honour, what cannot be changed are the things that are set out in subsection (2), and they
include the Act itself.  The point that we seek to

Theophanous 153 15/9/93

make is there is no really very different basis for

drawing the inference in the State Constitution.

McHUGH J: But where is the implication of representative

government? Where does that stern from? It does

not come from subsection (2), does it?

MR JACKSON: Subsection 2(c). Your Honour, it could not be

more exactly expressed, with respect.

Your Honours, I wonder if I could move then to the next aspect which is the question of qualified

privilege? Your Honours, in relation to that - we

adopt, as I have indicated to Your Honours earlier,

really a kind of double position in the sense that

we say that the position, properly considered, is

that qualified privilege already does apply but, if

that not be the case, a form of qualified privilege

has to be - I am sorry, I will start that again.

If that is not correct, what there is, is a

new form of qualified privilege, or a new

application of qualified privilege - Your Honours,

I do not want to trip myself up on the word, "form"

- a new application of qualified privilege which is

to be considered as in existence by virtue of the

existence of the implication to which we have

referred.

Your Honours, if one turns to the question of

qualified privilege, the nature of the qualified

privilege that we would submit exists is that the

publication - and I intend to convey publication by
the mass media - of defamatory matter concerning

the conduct and performance of duties and

activities by a member of Parliament or by a

candidate for election, is lawful unless shown to

be unreasonable or made with an absence of good

faith.

The starting point, in our submission, is that

the categories of qualified privilege are, like

public policy, not closed. In that regard, may we take Your Honours to some observations. The first

is to Howe & McColough v Lees, (1910) 11 CLR 361,

at page 368 where one sees set out the proposition

generally regarded as underlying qualified

privilege, a quotation from Baron Parke in Toogood

v Spyring. The passage goes to about a third of

the way down the page, and Your Honours will see

the observation:

"If fairly warranted by any reasonable

occasion or exigency, and honestly made, such

communications are protected for the common

convenience and welfare of society; and the

Theophanous 154 15/9/93

law has not restricted the right to make them

within any narrow limits."

The proposition, putting it more directly, that the

categories of qualified privilege are not closed

may be seen in a dictum of Lord Buckmaster in

London Association for Protection of Trade v

Greenlands Limited, (1916) 2 AC 1, at page 22 where

at the bottom of that page His Lordship said in the

fifth last line:

Indeed, the circumstances that constitute a

privileged occasion can themselves never be

catalogued and rendered exact. New

arrangements of business, even new habits of

life; may create unexpected combinations of

circumstances which, though they differ from

well-known instances of privileged occasion,

may none the less fall well within the plain

yet flexible language of the definition to
which I have referred -

which is that to which I referred a moment ago.

One sees also at page 26 Lord Buckmaster again,

towards the bottom of the page where he says, after

referring to Macintosh v Dun, that it does not show

more relevantly -

that in determining what is a privileged

occasion all the circumstances under which the
publication is made need to be considered for
the purpose of determining whether privilege

attaches or no.

Your Honours, the fact that the main

consideration in relation to applying qualified

privilege to new circumstances was that the

doctrine was based solely upon public utility is

referred to by Justice Evatt in Telegraph Newspaper

Co Ltd v Bedford. May I simply give Your Honours

the reference to that:  (1934) 50 CLR 632 at

page 657. To the same effect are some observations

of Chief Justice Latham in Guise v Kouvelis, (1947)

74 CLR 102 at page 109. Your Honours, in the same

case, if I could take Your Honours to that for just

a moment, Justice Dixon at pages 116, 121 and 125

referred to the fact that the decided cases did not

exhaust the concept.

Your Honours will see at page 116, in a

passage commencing two-thirds of the way down the
page, His Honour said that the very width of the

principles made it necessary to look at all the

circumstances, to put it shortly. Then at

page 121, His Honour picked up the quotation from

London Association for Protection of Trade v

Greenlands Ltd, to which I took Your Honours

Theophanous 155 15/9/93

earlier. Your Honours will see that in the

paragraph commencing about a quarter of the way

down page 121.

Having done that, His Honour then, at

page 125, in the paragraph commencing at the top of
the page, referred to the fact in the first
sentence that there had been too much reduction to

instances in effect and some of the cases did not

fit the broader test. Your Honours will see that

he refers, for example, half-way down that

paragraph, to the fact that reciprocity - that is

the reference of Adam v Ward - seemed to be

something required only by Lord Atkinson in that

case.	Your Honours will see that he then went on
to say:

It is to be noticed that the relevant part of
the famous statement of Parke Bin Toogood v

Spyring speaks of communications ..... and

demands no community, reciprocity or

correspondency either of interest or duty".

Now Your Honours, in saying that, His Honour was referring to some earlier observations which he

had made in Mowlds v Fergusson, 64 CLR 215.

Your Honours, that the category of cases attracting

qualified privilege is enclosed was referred to

specifically in the New South Wales Court of Appeal
in Morosi v Mirror Newspapers Ltd,

(1977) 2 NSWLR 749 at page 778E, where the

proposition is stated in those words.

Your Honours, could I just say that it would

seem, if one thinks of qualified privilege as being
something which is an emanation of the common law
and if one looks at the reasons for the existence
of qualified privilege, it would seem very odd if

it were not capable of adapting to new situations.

And it would seem really quite odd if the law which

underlies, or if the laws which underlie the whole

of the legal structure in the nation gave rise to

implications about the ability to comment on
matters central to them, they put it at the

narrowest, and if yet the making of statements of

that kind did not attract qualified privilege.	And
that is particularly so in respect of

communications on matters within the concept of the
implication where the issue is one raised in the
public media, the use of which is the most common

way of communicating with persons who are, in

effect, the governed.

Your Honours, could I just say something,

however, about the privilege in relation to
publications to the general public. It is right to

say, I think, that in the past the occasions on

Theophanous 156 15/9/93

which publications by newspapers to the general

public have been treated as privileged, have been,

relatively speaking, rare. But, it has been

recognized that the protection will apply in

appropriate circumstances.

May I give Your Honours some references in

that regard: Smiths Newspapers Ltd v Becker, (1932)

47 CLR 279, per Justice Evatt at page 304, and

again, in Telegraph Newspapers Company Limited v

Bedford, 50 CLR at page 659 per Justice Evatt.

Now, Your Honours, one sees too in the reasons

of the Privy Council in Perera v Peiris, (1949) AC

1, at pages 21 and 22, if I could take Your Honours

to that for a moment. Your Honours will see about

two-thirds of the way down the page, that:

The due administration of the affairs of

Ceylon required that this report in light of

its origin ..... should receive the widest

publicity.

And, Your Honours, the passage goes on from there

to the top of the next page, and the proposition

which is put is that a publisher of a newspaper

stands in no better, but no worse position, than

anyone else. But, Your Honours will see that what

is said by Their Lordships is, in particular, at

the top of page 22, that the publisher of the

newspaper had:

the same interest in the public affairs of

Ceylon as that proper to be possessed by the

ordinary citizen.

And that the subject-matter, to the extent to which a common interest was necessary "created the common

interest", and Your Honours will see the reference

to the ordinary citizen of Ceylon. That is a

publication on a matter important to the processes

of democracy, published in a newspaper.

Now, Your Honours, I have referred already to

the observations made by members of the Court in

Calwell v Ipec Australia Ltd and I will not take

Your Honours again to those, but Your Honours will

recall that they were publications in a newspaper,
certainly the Code was involved, but the
observations of members of the Court in that case

support the proposition, in our submission, that

the publication by a newspaper was a perfectly

proper way of dealing with a matter of the public

interest.

Could I give Your Honours, without taking

Your Honours to them, two further references in

Theophanous 157 15/9/93

that regard. One is Mangena v Wright, (1909)

2 KB 958, at 977 to 978 and Allbutt v General

Medical Council, (1889) 23 QBD 400, at page 413

about point 3.

Your Honour Justice Brennan, when a member of the Federal Court, in relation to common law

qualified privilege, followed the observations in

Calwell in a case of John Fairfax & Sons Ltd v

Punch, (1980) 31 ALR 624, and I will take

Your Honours to page 634 if I may.

Your Honours will see in that case, at

page 634, that in the first new paragraph on the

page Your.Honour had been speaking of something

under the Criminal Code, the Code is not to be

equated with the common law. Your Honour went on

in the fifth line of that paragraph to say:

it disparages the parliamentary leader of a

party to say of him that he has lost the

confidence of a significant number of his

party followers.

Your Honour develops that proposition, then in the next paragraph says:

Of course, it is one thing to hold that

such an imputation is defamatory; it is

another thing to find that the publication of

such an imputation is actionable. The

legitimate public interest in a matter of that

kind, and the public good which is served by

the publication of information relating to

shifts in political allegiance, would

ordinarily ensure that the occasion of

publication is one of qualified privilege (cf

Calwell v Ipec Australia Ltd -

Your Honours, could I just say in relation to

Calwell's case that Calwell's case was dealing with

the situation which obtained when the 1958

Defamation Act in New South Wales was in force.

The 1958 Act was in the same terms in all relevant

respects as the Queensland Criminal Code

provisions, which had been the subject of Telegraph

Newspapers v Bedford. Your Honours, perhaps the

two cases reflect different perceptions and

changing times, but it is, we would submit, a

little difficult to reconcile the slightly

restrictive view of the ambit of qualified

privilege in relation to publications in newspapers

taken by, for example, Justice Evatt in Telegraph

Newspapers v Bedford with the wider, and we would

submit, correct view of the ambit of qualified
privilege taken in Calwell's case. Calwell's case,

we would submit, reflects, both under the general

Theophanous 158 15/9/93

law and under the provisions of the relevant codes,

the position in relation to qualified privilege. I

should have said, and I may have done so before,

Your Honour Justice Brennan's observation in John

Fairfax v Punch was in a case where Your Honour was

speaking of the common law.

Could I just say this also, a related matter

and a matter which bears upon the appropriateness

of allowing common law qualified privilege for

publications of this kind may be derived from a

slightly different source, and that is that the

common law protects reports of, for example,
judicial and parliamentary proceedings and it

protects them so long as they are made honestly and

for the purpose of giving information to the

public. Your Honours will see an example of that

in John Fairfax & Sons Ltd v Police Tribunal,

(1986) 5 NSWLR 465. I wanted to refer particularly

to an observation of Your Honour Justice McHugh

when a member of the Court of Appeal in that case.

I wonder if I could ask Your Honours to look at

page 481 of that case. Your Honours will see,

about letter E, in speaking of the publication of

the reports of courts, and it is an entirely

voluntary thing on the part of anyone who publishes

them, in speaking of the publication of such

reports, Your Honours says:

The publication of fair and accurate reports

of court proceedings is therefore vital to the

proper working of an open and democratic

society -

et cetera. Immediately prior to that, Your Honour

had said:

Without the publication of the reports of

court proceedings, the public would be

ignorant of the workings of the courts whose

proceedings would inevitably become -

et cetera. What emerges from that is that if one

looks at an area of, in effect, public discourse, that is the affairs of courts, the publication by persons, acting voluntarily, and it may well be

acting for, in the end, their own private gain or

their attempts to make it, is something which is

regarded as being vital to the proper working of

the open and democratic society. That is one of
the reasons why it becomes very difficult, in our

submission, to take the view that a person who,

bona fide, engages in the business of providing

news to the public and news about matters that are

important to the conduct of the ordinary society in

which one works, is a person who has to establish,

for example, some kind of reciprocity of interest

Theophanous 159 15/9/93

with every person to whom the publication might

come.

Your Honours, in cases such as cases relating to the conduct of the persons who are members of

one of the houses of a parliament, it would seem a

curious thing if one could not, other requirements of the defence being established, publish material which related to the conduct of themselves in the

performance of their functions and material which

was published as the statement of claim says to

people in Western Australia; the people,

presumably, who were able to read it being people

who either were electors, people who were governed

or people who pro tern were likely to be in

Western Australia.

Now, it may be that an American or a Japanese

tourist was not terribly interested in the matter,

but that would not seem - it would be very strange

if that meant that there could never be such a

privilege.

McHUGH J:	Why can you not plead the defence of qualified privilege to so much of the publication as went to
electors? After all, the theory is that each
publication is a separate cause of action. For
convenience people are allowed to sue in the one
count in respect of the total publication but, in theory, in principle, each publication is a separate cause of action to each person.

MR JACKSON:  Yes. Your Honour, in theory one could do that.

Each publication, let us assume would give rise to

a separate cause of action. It does not follow,

with respect, however, that the defence of

qualified privilege would not be available to all.

McHUGH J:	I appreciate that, but in so far as the publication was to electors, why can you not plead
a defence to so much of the publication?
MR JACKSON:	We could.

McHUGH J: But you have not?

MR JACKSON:  We have not done only that. But, Your Honour,

it is not just a question of people who are

electors. We would seek to go a little further

than that. It concerns also persons who, whilst
they themselves may not be electors, are people who

are able to communicate to people who are. If I

could put it this way, children, for example, who
are relatively articulate are no longer in
positions where they are seen but not heard. Often

they are not seen when one would like to see them

and heard when one would not like to hear them.

Theophanous 160 15/9/93

But, Your Honour, they are perfectly capable of

expressing views which may lead those who are their

parents or their guardians to vote in particular

ways.

Your Honour, it is, we would submit with

respect, to diminish the ambit of the privilege and

to diminish their position not to treat them as

persons who would have no interest in what was

published.

Now, Your Honours, that is one aspect in

relation to which, we would submit, in so far as

the cases say everyone must have the interest.

Your Honour, the notion of the interest, so far as

the persons who are recipients of newspapers, has

been, we would submit, rather too narrowly

construed.

Your Honours, could I go on to submit in

perhaps a little more detail, and covering some of

the matters to which I referred a moment ago in

dealing with Your Honour, to go on to indicate the

factors which we would submit give rise to the

privileged occasion in the present case. The first

is that the Constitutions give a freedom or a

right, however one cares to describe it, in the

people to elect those who govern them. In order to

exercise that right, they have a right to be

informed about their representatives and to be

involved in the free flow and discussion and

criticism of candidates for election and members

when they are elected.

Could I in that regard refer Your Honours to

what was said by Justice Windeyer in Australian

Consolidated Press v Uren, 117 CLR 185, at

page 210. It is a passage quoted in Nationwide

News.

Constitution itself, we would submit, establishes Your Honours, the next matter is that the

the interest in the people to have published to

them interest relevant to the conduct of elected

and proposed representatives. Your Honours, I have

spoken so far about the existence of a right to

vote but, of course, in Australia, both federally

and in Western Australia, there is a duty to vote.

Could I refer you to section 245(1) of the

Commonwealth Electoral Act 1919 and to

section 156(1) of the Electoral Act 1907

Western Australia, each of which provides that it

is the duty of the elector to vote. So the voting

public has both a right and an obligation to

participate in the election of representatives.

The persons so elected, upon election, become the

representatives, nor just of those who voted for

Theophanous 161 15/9/93

them and those who voted against them and those who

did not vote at all because they were in another

State or another country, but also becomes the

representative of the public.

Your Honours, although voted for by a limited constituency - and for some purposes the

representative of a particular electorate - the

duties of a person once elected are to the people
of the polity, voters and non-voters alike.

Indeed, some of the most important functions performed by persons who are elected

representatives, is to represent those who do not

qualify for a vote.

McHUGH J: Yes, I know, but it comes back to: what benefit

is there in false information going out to the

electorate? I mean, I have always thought that

qualified privilege really stems from the

enlightenment that people like Mill and Lock and

people like that believed in the ability of reason

to solve problems and they had confidence in the
reasoning power of people to distinguish truth from

falsehood, but the 20th century in particular has

shown that is just totally false. Why should

qualified privilege be extended rather than

confined? You want to extend it.

MR JACKSON:  Your Honour, assuming that we

MCHUGH J: It comes into the common law at the beginning of

the 19th century, perhaps late in the 18th century.

The early common law knew nothing about qualified

privilege.

MR JACKSON:  Your Honour, no doubt it came in in response to

a need. If one looks at the various circumstances

that one can readily identify as being

circumstances in which qualified privilege does

apply, then it is manifest, we would submit, that

there are circumstances where it is perfectly

appropriate to make observations even though in the
end they are not true.	I cannot immediately give

Your Honour a reference, but if one were to look at

two things, the first being the discussion of

qualified privilege and the need for its existence

in, for example, Gatley on Libel and Slander, but

also - my recollection is a little aged - in the

commentary by Sir Samuel Griffith on the Criminal

Code at the time when it was sought to be codified,

there is, I think, in both those a discussion of

the reasons lying behind it.

If one assumes that what we are seeking to do

is to extend the privilege, what we are doing is to

say that the underlying feature of the privilege is that there are circumstances when it is appropriate

Theophanous 162 15/9/93

without there being the possibility of being sued
successfully for a person acting non-maliciously to
make statements which in the event, if they turn

out to be untrue - - -

McHUGH J: But it is because there is a theory that the more

speech, the better, the more information, the

better, and that implies that those who receive it

will have the power to distinguish truth from

falsehood. If they cannot, then it must be

detrimental to society.

MR JACKSON:  Your Honour, it may mean that they are just

better informed. I mean, there may be something

that in the end is inaccurately informed.

McHUGH J: But you are not better informed by receiving

false information.

MR JACKSON:  Your Honour, may I go back a stage. I do not

want to go through them again, but Your Honour has

New York Times v Sullivan,
seen the passages in of observation in the Derbyshire Council case. Those
course, and the other passages relied on by

propositions establish, we would submit, a reason

for the existence of a protection, the precise

nature of which may not immediately matter, a

protection in respect of statements of that kind.

One of the things that occurs, of course, is

that in relation to matters which are political or

related to the performance of persons who hold or

seek to hold political office, the comments made in

relation to them will often be comments where, if

persons have to seek to justify them or justify

them in circumstances where truth simpliciter is

not sufficient, for the reasons set out in those
cases it may be very difficult for them to do. And

what one sees then is that after the event all this

considerable significance, we would submit. has then to be worked out. justify what one is doing is, in fact, a threat of The threat of having to

McHUGH J:  That is one side. The other side of the equation

is that speech can cause harm, serious harm.

MR JACKSON:  Of course it can, Your Honour. That is why, if

one deals with qualified privilege, what qualified

privilege does is to select occasions on which a

properly motivated person may make an observation

which, if it turns out to be untrue, does not

subject him to liability. Now, undoubtedly, there

is a balancing element involved in deciding what

will be the occasions of qualified privilege, and

if one were to seek to write a code today which

dealt with the questions of qualified privilege,

Theophanous 163 15/9/93

views might be taken somewhat different from those

taken other days. They might be wider; they might

be larger. But, we would submit, the one thing

that would appear top of the list would be

communications of the kind presently in question.

Your Honours, what I was seeking to say, in

relation to the position of members, was once a

person becomes a member of Parliament, the duties

and obligations and interests of that member go

beyond the interests of those who elected him

directly. Could I in that regard refer to, without

taking Your Honours to them, two observations in

the cases: one is Australian Capital Television at

page 702 per Your Honour Chief Justice Mason and

the others in Nationwide News at page 693.

Your Honours, the next matter we would seek to

advance in support of the privilege is this, that

in modern times, and indeed much more so than say
in the case of Telegraph Newspaper v Bedford, the

ordinary and convenient means by which

representatives or candidates communicate with and

become known to the public, is to be found in the

wide media.

McHUGH J:  Why are you concerned with Bedford? I mean,

Bedford was about a letter -

MR JACKSON:  A letter published in a paper.

McHUGH J: - - - published in a paper. It was about his

capacity as managing director, was it not, from

recollection; not in his capacity as a member of

the Queensland Parliament?

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

says, why am I concerned about it. It is really

because, two things: one is that it appears to

contain some dicta suggesting that newspapers will

find it very difficult to establish occasions of

qualified privilege.

McHUGH J:  You do not have to go to Bedford to find that

out.	You just have a look at the results of the
cases.

MR JACKSON: Yes. Well, Your Honour - and one has one's own

experience of these matters, Your Honour - but it

may partly be - what one feature which seems to

have been lying around in that regard, seems to

have been a perception that Bedford's case meant

that newspapers for practical purposes could not

succeed. Now, Your Honour, that may be the case in

relation to areas where a person who is not a

public figure is defamed and where the newspaper

started it, to·put it shortly. It is unlikely, we

Theophanous 164 15/9/93

would submit, to be the case in circumstances such

as Calwell's case, but Bedford's case seems to have been, if I can put it this way, Your Honour, a kind

of wet blanket over quite qualified privilege, with only a corner of it being lifted by Calwell's case.

Your Honour, we would submit that it really is not

correct.

May I just say a couple more things in

relation to this aspect. The public media,

Your Honours, tend now to be the way in which the public is informed, not only of the activities of the particular representatives, but also of those who are involved in government, and the media

publishers themselves are persons who are as

directly affected by activities of those governing

them as is the public. So there is, Your Honours,

in any event, a significant community of interest.

Your Honours, those, I think, are the

submissions we would wish to make in support of our

second defence.

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

MR HUGHES:  Your Honours, the argument we propose to submit

to the Court will not depart materially from the

outline or, indeed, at all. The essential points

we want to make are inscribed there.

MASON CJ:	As on tablets.
MR HUGHES:	There is room for flexibility, Your Honour, I

hope.

The commencing point of my submission is this, that the implication, the constitutional

implication, established by the two cases which

have been so much discussed, Nationwide and

Australian Capital Television, is an implication

that consists in a limitation on legislative or
executive power.	I am not going to read passages

from the judgment if I can avoid it. In either

case they have been well travelled over in the

course of the last two days, but I would submit in

brief that Your Honour the Chief Justice,

Your Honours Justices Brennan, Deane, Toohey and

Gaudron have all expressed the constitutional

implication as one limiting governmental power,

either legislative or executive.

If that, and I respectfully submit it is, is

point that follows is that that implication is not
primarily creative of a private right in anyone. the right definition of the implication, the next in the course of discussion, to section 92 and to

Theophanous 165 15/9/93

the cases on section 92, culminating in Cole v
Whitfield, which have denied with the full

authority of this Court the proposition in relation to section 92, that it operates primarily to create private rights in an interstate trader. It is a

public right and the citizen's entitlement to avail

himself or herself of it is purely derivative from

the public right. The derivative right consists in

the entitlement to challenge legislative or executive action which infringes the right.

MASON CJ: But that is all pre-Cole v Whitfield really. The

notion that it was a private right derivative from

a public right was enunciated in pre-Cole v

Whitfield days.

MR HUGHES:  But as I understand Cole v Whitfield, that

proposition is not denied. It is the public nature of the right, not the personal nature of the right,

that is emphasized.

MASON CJ: But Cole v Whitfield established that section 92

is a prohibition against discriminatory treatment

of a protectionist kind. It emerged as a

prohibition.

MR HUGHES:  Yes, Your Honour. We say that by analogy, and

indeed, according to the views of a majority in

this Court, the constitutional implication relating

to freedom of speech on political matters is simply

a restraint on legislative power. There is no

fundamental constitutional right to free speech

embedded by implication in the Constitution. There
is no need for such a further additional

implication beyond the implication of the restraint

on power. There is no need for it, we would

submit, because freedom of speech was embedded in

the common law prior to and at the time of

Federation.

Your Honour the Chief Justice in Australian

Capital Television emphasized the attitude of the

founding fathers against the declaration of
fundamental rights in the passage in Your Honour's

judgment at page 702.	Your Honour there said in
the first column:

The framers of the Constitution accepted, in

accordance with prevailing English thinking,

that the citizen's rights were best left to

the protection of the common law in

association with the doctrine of parliamentary

supremacy.

That proposition is very much, if I may say so, at

the core of our argument. The Constitution was

enacted in a framework of the common law, and we

Theophanous 166 15/9/93

have referred in our outline, paragraph 8, not only

to what Your Honour the Chief Justice said in the

passage I have just referred to, but to what

Your Honour Justice Gaudron said on the same topic

at page 733. And we have referred to what

Sir Owen Dixon said in the article in Jesting

Pilate entitled, "The Common Law is an Ultimate

Constitutional Foundation". Your Honour

Justice Gaudron cited from page 205 of Jesting

Pilate at page 733 of Your Honour's judgment in

Australian Capital TV. Perhaps I should give a

reference briefly, though we have in the outline,

to what Sir Owen Dixon said at page 704:

In the working of our Australian system of government, we are able to avail ourselves of the common law as a jurisprudence antecedently existing into which our system came and in

which it operates.

So the Constitution is not antithetical to the

common law although, of course, it creates scope

obviously for working changes in the common law by

legislation. But the Constitution recognizes the

common law and is enacted on the footing that until

a change is made the common law remains in force,

and included in the common law is that body of the

common law that regulates defamation. We say quite

simply that given the constitutional restraint on

undue interference by legislation with freedom of

speech, the working out of the boundaries of that

freedom was left by the legislators who enacted the

Constitution to the operation of the common law as a reasonable body of rules regulating the publication of defamatory matter, not only about

politicians, but about anyone in the community.

TOOHEY J:  Mr Hughes, I understand the argument that the

implied guarantee is said to arise from the two recent decisions; it is confined to legislative

interference and that it does not create rights.

Assuming that a different view was taken, there

seems to be a notion that somehow or other to find

private rights in the implied guarantee is some

sort of attack on the common law, but why should

that be so? And if the guarantee does confer

private rights, then that is the consequence of it.

The common law speaks for itself. The actions in

defamation are actions under the common law. But,

why should the guarantee not provide some

additional answer?

MR HUGHES: 

Your Honour, in a way, has anticipated, save for

the last question, what I was about to put as an
alternative argument. If the Constitution,
contrary to my principle submission, enshrines by
implication, some fundamental right to freedom of

Theophanous 167 15/9/93

speech, a view that did not find much adherence, or

any adherence in the two cases, then the private

right said to be enshrined in the Constitution is a

right not of an absolute nature, as Your Honour the

Chief Justice pointed out in ACTV, it is a right

subject to the exigencies of reasonable limitation
and restriction in the interests of balancing,

competing public interest in the community.

TOOHEY J: But does that alternative approach admit of the

existence of the guarantee as some sort of an

answer in an appropriate case to an action for

defamation?

MR HUGHES:  No, it does not, Your Honour. The alternative

argument that I put is that if, we would say quite

unnecessarily and contrary to the rules that should
control the making of implications in legislation,

there is enshrined in the Constitution a private

right, that is a private right exercisable, not as

one of absolute freedom, but subject to the

balancing restraints imposed by the common law.

TOOHEY J:  You mean, the guarantee must be read down to

accommodate the common law?

MR HUGHES:  Yes. It is not an absolute guarantee of freedom

of speech.

TOOHEY J: There is a circularity, of course, in all of

this, but my question was really directed at the

theme that seems to be implicit in some of the

argument that even if it could be shown that the

guarantee existed and that it gave rise to private

rights, it could not be allowed to operate in such

a way as to in any way affect the common law as it

presently stands. It is that last step that I have

difficulty with.

MR HUGHES:	It does not effect the common law - the enshrined private right, which I am assuming for
the purposes of this part of the argument, is not
an unlimited right, an absolute right, it is a
right subject to some limitations. It was, on the
assumption I am making, a right subject to some
limitations at the time when the Constitution came
into operation. If it is right to say that the
Constitution recognizes and operates in a framework of common law, the best and the most rational way of defining the limitations, subject to which this supposed enshrined private right was created,
should go to the common law as it existed in the
first place at Federation but then, because the Constitution is a living document and because the
common law is a living organism which is always presumed to have existed but about which new
discoveries are made, you would say that the

Theophanous 168 15/9/93

enshrined private right is subject to the

regulation, in so far as it is applicable, created

by the common law, or as the years have gone by as

subject to limitations imposed by a mixture of

common law and legislation.

TOOHEY J: That is to find the guarantee and then lose it.

MR HUGHES:  No, it is not losing it, Your Honour, because

nobody could say - it would be contrary to the

authority of the two cases to say that the private

right, if there is one, is an unconfined,

uncontrolled liberty.

MASON CJ: But, are you saying that the right conferred by

the Constitution is subject to the common law or

are you saying that what is permitted by the common

law could not constitute a violation of the right?

MR HUGHES:  I am saying both, Your Honour. I am enunciating

the second proposition that Your Honour summarized

on the footing that the common law, as it exists in

Western Australia, is an adequate balancing of the

respective interests of the parties to this

litigation. Six plaintiffs, three Liberal members

of the Upper House of Western Australia, three

Labor members, who were subjected to attack in each

of three articles conceded, for the purposes of

evaluating this constitutional defence - that is

the paragraph 20A defence - to be defamatory and to

consist of false statements of fact.

There are other defences, comment,

justification and so forth but, in determining

whether this supposed private right said to be

embedded by implication in the Constitution is

antithetical to the common law and therefore

overrides it, one has to look at the particular

situation with which this case is concerned and to

bear in mind steadfastly that we are dealing with

false and defamatory statements of fact.

TOOHEY J: That may be to set up a conflict that in truth

does not exist. I will not divert you any longer

except perhaps to ask you this question:

forensically, I take it you would contend that if
there were a guarantee in the terms that have been

asserted and it were found to create private rights

in the area with which we are concerned,

nevertheless it could not be raised as a defence to

an action for defamation because it is not a

defence recognized by the common law.

MR HUGHES:  Yes, I would.

McHUGH J: Would this Court have jurisdiction to restrain

the commencement or continuation of a defamation

Theophanous 169 15/9/93

action on the ground that it did infringe this

right?

MR HUGHES: If there is a private right?

McHUGH J: Yes.

MR HUGHES:  Does Your Honour mean on an interlocutory basis?

McHUGH J: Yes. Assuming that there is a private right, in

some situations at least, would this Court have

jurisdiction to restrain the maintenance of a

defamation action in one of the States?

MR HUGHES:	I feel rather like Mr Castan felt yesterday afternoon, Your Honour, I would rather like to have
a little notice of that question.  My initial
reaction, but I do not want to be bound by the
expression of it, would be that as the existence of the private right could be said to be a matter arising under the Constitution the jurisdiction
might be there. That would be the inclination of
my mind at the moment, I might think better or
worse of it overnight, but that would seem to be
right in principle.

McHUGH J: Well, we might be getting a new jurisdiction.

MR HUGHES:  Yes.

MASON CJ: That seems to be your strongest argument.

MR HUGHES:  Yes, but the essential point is that there is no

need for a private right.	The private right is
there.

DEANE J:  Mr Hughes, is not this private right really a bit

of a furphy? I mean, on your argument what if

there was an existing State statute, does the

implication affect that, or are we only concerned

with, on your argument, legislative power as from

the time of Federation?

MR HUGHES: Well, logically, given the primary nature of the

constitutional implication as a restraint on

legislative power, one would probably have to

concede that the examination of the question would

require the assessment of the compatibility of pre-

existing legislation, not just future legislation,

with the constitutional restraint.

DAWSON J:	If it was State legislation that would be on a sort of reverse Melbourne Corporation principle,
which, whilst it may involve considerations of
freedom of speech in the federal sphere, is more
broadly based.

Theophanous 170 15/9/93

MR HUGHES:  Yes, the best argument against the validity of

some existing legislation may be, if we are

postulating a case where federal members of federal government are defamed, the best argument

might be that a State statute, of the kind that

Your Honour Justice Deane postulated yesterday

afternoon, removing a defence of fair report of

proceedings of the federal Parliament would be a

legislative assault on a central aspect of

Commonwealth government, and a reverse Melbourne

Corporation type of situation.	I hope I have
answered Your Honour's question.

DEANE J:  I think you have, but it leads to this then, does

it not, that the argument becomes that the
implication protecting political discussion to the
extent necessary for representative government,

restricts the implication to statute law, instead

of it simply being an implication of no law. I

mean, regardless of whether you see the common law

as outside the Constitution, as you do, or inside

the Constitution as some others do.

MR HUGHES:  I see the common law as being inside the

Constitution in the sense that the Constitution recognizes the common law.

DEANE J:  I should have said, outside the Constitution as

Sir Owen Dixon seems to have, or inside the

Constitution as others do.

MR HUGHES:	Yes.
DEANE J:	Does not the question become whether you can find

the implication, not to legislative power, if it is

applying to previous powers that were not subject

to any restraint, but to statute law as distinct

from law generally?

MR HUGHES: There is no need for the distinction because in

truth there is no non-statute law.

DEANE J:  Do you follow the point I am directing your

attention to in terms of a previous law in that a

previous law was made and validly made. The

question then must become whether the legislative

power of the relevant State is adequate to sustain

it unless you are taking it outside the whole

nation. Once you put it in those terms, there is

something to be said for the view that similarly

you would say, in so far as common law operating

within that Territory is concerned, is the

legislative power of that Territory still adequate

to sustain it under the Constitution.

Theophanous 171 15/9/93

MR HUGHES:  The legislative power of a State is not

stultified. It is no part of our argument to say

that the legislative power of a State is stultified

by reason of the implied constitutional restraint

on legislative power deriving from the two cases.

It becomes a question in each case whether the

legislation of the State imposes an undue fetter on

the freedom.

DEANE J: Let me divert you for a moment. Take section 49

of the Constitution - as the Chief Justice has
pointed out to me, I keep calling it section 45 -

which confers upon the Commonwealth Parliament the

immunities of the House of Commons. Presume that

was not there and presume also that there was

nothing in the common law which would inhibit

defamation proceedings for what was said within the

House of Representatives. Would your argument be

that the implication that the availability of
defamation proceedings in relation to what was said
in the Constitution was inconsistent with the sort
of debate that is essential for a House of

Parliament would only apply to the provisions of a

statute, or would you accept that it would simply

have to override defamation rights under the common

law?

MR HUGHES:	I would say that if section 49 did not exist in the Constitution, there would be some power,
probably the incidental power, which would enable
the Commonwealth Parliament to enact legislation defining the limits of parliamentary privilege in the area of comments by people ou.tside Parliament
about parliamentary performance.
DEANE J:	And absent such legislation?
MR HUGHES:	And absent such legislation - well, one would

probably go back to the common law of

Parliament - - -

McHUGH J:  Or the bill of rights.

MR HUGHES:  - - - if one could, in the absence of section

49, and work out what would be the legitimate

restraints upon comments about performance in the

federal Parliament.

DEANE J: So, that really answers my question as to where

your argument leads. I follow and understand that.

MR HUGHES: There is a common law of Parliament, I suspect,

absent section 49, because - - -

DEANE J: Well, as I understand it, the basis of the

privilege has been held to be common law necessity.

That is Gibbs v McElhone in the New South Wales

Theophanous 172 15/9/93

Supreme Court, but it was not that that I was

directing the attention to; it was where it fitted

in.

MR HUGHES:  What I had in mind - and I do not know whether

this is a useful addition to what I have already
tried to say, if what I have tried to say is at all

useful - was that the common law of Parliament

probably inhered in the several colonies and when

the Commonwealth legislature was created by the national common law on that point.

McHUGH J: What about section 9 of the Bill of Rights? It

says that Parliament called on account - - -

MR HUGHES:	Yes, and section 9 of the Bill of Rights has been thought to come into the Commonwealth sphere
via section 49. It may have come from another
source altogether, absent section 49. I hope I
have answered Your Honour's question.

DEANE J: Yes, you have, Mr Hughes.

MR HUGHES:  Now, one notable feature of my learned friend's

submissions was the propounding, as I noted it, of

a sort of rhetorical question. My learned friend

said, "The right to vote is constitutionally

entrenched. Why, therefore, is not the right to

discuss matters relevant to the exercise of the

right to vote constitutionally entrenched?"	Now,
the rhetorical question, in our respectful

submission, has no real relevance because when one

examines the relevant provisions of the

Constitution the right to vote, as a private right,

is not constitutionally entrenched.

My learned friend, in the course of this part

of his submission, laid particular emphasis on

section 41 and on the case, I think it is Sipka's

case, 152 CLR. Section 41 has been construed, by

this Court as having had a very limited application

which is now spent.

DEANE J:  I do not think he relied on it, I think he

conceded it did not help him.

MR HUGHES: Well, it was after we had a conversation that he

made that concession, but - - -

MASON CJ:  You pointed out his error.

MR HUGHES: Yes. Well, I always try to be helpful,

Your Honours. But, that was not the way it was

presented this morning. Section 41 was in the van

of his argument.

Theophanous 173 15/9/93

Now, when one looks at the relevant provisions

and when one bears in mind what was said,

particularly by Sir Garfield Barwick in McKinlay's

case about section 7 and section 24, it is

apparent, I submit, that there is not a

constitutional entrenchment of, for example,

universal suffrage, universal adult suffrage.

It was pointed out in argument in

McKinlay's case - and in fact it was my argument, I

blush to say so - that at the establishment of the

Federation the franchise in the various colonies

was quite diverse. There was no universal adult

franchise in the various colonies, save

South Australia and, when one looks at the

provisions of Part III, it is difficult to deduce,

or from the part that deals with the Senate,

beginning with section 7, any constitutional

embedding of a personal right to vote.

True it is that section 30 says that:

Until the Parliament otherwise provides,

the qualification of electors of members of
the House of Representatives shall be in each

State that which is prescribed by the law of

the State.

But the law of the State, as it was antecedent to the law of the relevant colony, was quite different

as between the various States.

If the proposition that there was a

constitutionally embedded personal right to vote is

the beginning of my learned friend's argument, or

part of the beginning of my learned friend's

argument that there is a constitutionally

entrenched fundamental right of freedom of speech,

the argument, with respect, does not get off to a

very good beginning.

Perhaps, in the short time that is left

between now and a quarter past four I should draw

attention to another curious feature, as we would

submit it, of the argument that is presented by my
learned friend in favour of the existence of a

private right to free speech being implied in the

Constitution, and it is this:  my learned friend

confronted Your Honours with a variety of choices,

in his submissions to the Court this morning, as to

what the appropriate limitation or restriction on

this supposed private right would be. One

possibility that he adumbrated was that maybe New

York Times v Sullivan provided the appropriate

restriction on the implied constitutional right.

Maybe another alternative was the alternative that

the conduct of the publisher must be reasonable.

Theophanous 174 15/9/93

He propounded those two and I think there may have

been one or two others.

It is a curious, rather ironic situation,

Your Honours may think, that an array of choices as

to the appropriate limitations on this so-called

fundamental right of freedom of speech, is offered

in a situation where it is accepted, and indeed it

has to be accepted, that any constitutional

implication must arise of necessity from the text

of the constitutional instrument. The fact that my

learned friend had to offer an array of choices in

this most important aspect of the definition of the

private right rather militates, one would venture
to suggest, against a conclusion that there is a

private ri~ht of this kind at all. I see I have

reached 4.15 - is that convenient?

MASON CJ: Yes, we will adjourn until tomorrow, Mr Hughes.

But before we do so, would it be possible to obtain

from the interveners the written outline of

argument to the extent that they have not already

been handed in? I do not think there is any need

to hand them in at the moment, but when the Court

adjourns if the interveners would then hand copies

of their outlines in to the officers of the Court.

How long is it thought the case will last tomorrow?

Would it finish tomorrow?

MR HUGHES:  I think, Your Honours, that I can be mercifully

short because so much of the ground has been

covered.

MASON CJ: Yes, and one suspects that a good deal of

repetition would take place if the case were to

last the day.

MR HUGHES: Well, I hope I have not been guilty - - -

MASON CJ:	No, not at all.
MR HUGHES: Subject to taking stock, I have probably

developed the main points I want to make in

addition to what is in the outline on the

constitutional defence, and I will have to take

some time, but it will not be very long, on the

qualified privilege defence which we say falls to

be considered as a supposed defence of qualified
privilege pure and simple, unalloyed with any

constitutional undertone or overtone or side wind.

AT 4.18 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 16 SEPTEMBER 1993

Theophanous 175 15/9/93