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

[1993] HCATrans 271

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S22 of 1993

B e t w e e n -

THOMAS GREGORY STEPHENS & ORS

Plaintiffs

and

WEST AUSTRALIAN NEWSPAPERS

LIMITED

Defendant

Office of the Registry

Melbourne No Mll0 of 1993

B e t w e e n -

DR ANDREW THEOPHANOUS

Plaintiff

and

Theophanous	1	14/9/93
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 TUESDAY, 14 SEPTEMBER 1993, AT 10.17 AM

Copyright in the High Court of Australia

MR A.R. CASTAN, OC:  May it please the Court, I appear with

my learned friend, MR C.D. GOLVAN, for

Dr Theophanous, the plaintiff, in that matter.

(instructed by Rigby Cooke)

MR R. MERKEL, QC: If the Court pleases, I appear with my

learned friend, MR M.A. DREYFUS, for the

first-named defendant, the Herald and Weekly Times

Limited in that matter.	(instructed by Arthur
Robinson & Hedderwicks)

MR T.E.F. HUGHES, QC:  May it please the Court, in the

second matter I appear with my learned friends,

MR J.R. SACKAR, OC and MR S.J. ARCHER, for the

plaintiffs. (instructed by Clayton Utz)

MR D.F. JACKSON, QC: If the Court pleases, in the second

matter I appear with my learned friends,

MR W.H. NICHOLAS, QC and MR G.O'L. REYNOLDS, for

the defendant. (instructed by Parker & Parker)

MR D.J. ROSE, OC: If the Court pleases, in both matters I

appear with my learned friend, MR S.J. GAGELER, for

the Commonwealth Attorney-General. (instructed by

the Australian Government Solicitor). I should

indicate that we would propose generally to adopt

the arguments of the defendants that the implied

freedom based on representative democracy extends to State laws and to the common law, but the main

focus of our submissions will be in support of the

plaintiffs as regards the application of the tests

to the defamation laws.

Theophanous 14/9/93

MR K.H. PARKER, QC, Solicitor-General for Western Australia:

If it please the Court, in the second matter I

appear on behalf of the Attorney-General for

Western Australia, intervening with my learned

friend, MSC.A. WHEELER. (instructed by the Crown

Solicitor for Western Australia). Our submissions

will be generally in support of the plaintiffs'

position.

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

If the Court pleases, I appear with MR M.D. WALTER,
for the Attorney-General for the State of South
Australia and the Attorney-General for the Northern

Territory, to intervene in both matters generally

in support of the plaintiffs. (instructed by the

Crown Solicitor for South Australia, and The

Solicitor for the Northern Territory)

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

the Court pleases, I appear with my learned friend,

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

New South Wales, intervening in support of the

plaintiffs. (instructed by the Crown Solicitor for

New South Wales)

MR P.A. KEANE, OC, Solicitor-General for Queensland): May

it please the Court, I appear with my learned

friend, MR P.D.T. APPLEGARTH, on behalf of the

Attorney-General for the State of Queensland,

intervening in the second matter generally in the

interests of the plaintiffs. (instructed by the

Crown Solicitor for Queensland)

MR D. GRAHAM, OC, Solicitor-General for Victoria): May it

please the Court, I appear with my learned friend,
MR G.T. PAGONE, for the Attorney-General for the

State of Victoria, intervening in support of the

plaintiffs in both matters. (instructed by the

Victorian Government Solicitor)

Theophanous 3 14/9/93

MR A.R. CASTAN, QC:  May it please the Court, I appear with

my learned friend, MR C.D. GOLVAN, for

Dr Theophanous, the plaintiff. (instructed by

Rigby Cooke)

MR R. MERKEL, QC: If the Court pleases, I appear with my

learned friend, MR M.A. DREYFUS, for the

first-named defendant, the Herald and Weekly Times

Limited. (instructed by Arthur Robinson &

Hedderwicks)

MR D.J. ROSE, QC: If the Court pleases, I appear with my

learned friend, MR S.J. GAGELER, for the

Commonwealth Attorney-General. (instructed by the

Australian Government Solicitor). I should

indicate that we would propose generally to adopt

the arguments of the defendants that the implied
freedom based on representative democracy extends to State laws and to the common law, but the main

focus of our submissions will be in support of the

plaintiff as regards the application of the tests

to the defamation laws.

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

If the Court pleases, I appear with MR M.D. WALTER,
for the Attorney-General for the State of South
Australia and the Attorney-General for the Northern

Territory, to intervene generally in support of the

plaintiff. (instructed by the Crown Solicitor for

South Australia, and The Solicitor for the Northern

Territory)

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

the Court pleases, I appear with my learned friend,

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

New South Wales, intervening in support of the

plaintiff. (instructed by the Crown Solicitor for

New South Wales)

MR D. GRAHAM, QC, Solicitor-General for Victoria): May it

please the Court, I appear with my learned friend,

MR G.T. PAGONE, for the Attorney-General for the

State of Victoria, intervening in support of the

plaintiff. (instructed by the Victorian Government

Solicitor)

MASON CJ:	Mr Castan.
MR CASTAN:	May it please the Court, subject to the view of

the Court, the order of addresses that had been

anticipated by counsel, who have discussed the

matter, is that my learned friend, Mr Merkel, would

commence on behalf of the Herald and Weekly Times

defending in that matter in which I appear for

Dr Theophanous, and that he would address, followed

by counsel for the plaintiff in the other matter,

Theophanous 14/9/93

and that we would then be - I am sorry, counsel for

the defendant in the other matter, and that counsel

for the plaintiff would then - - -

MASON CJ:  But would it not be more convenient for the cases

to be heard successively rather than together?

MR CASTAN: That certainly would be acceptable to us but, as

we understand it, there may have been some

arrangements between my learned friends. Perhaps

Your Honours should hear from my learned friend,

Mr Merkel, as to that matter, and perhaps

Mr Jackson might want to be heard on that.

MASON CJ:	Mr Castan, the Court takes the view that the cases should be heard successively but, in saying
that, I should express our view in the strongest
terms that we do not want any overlap to occur. I
take it that counsel for the parties have discussed this matter with a view to ensuring that that does
not occur.

MR CASTAN: Certainly as we have anticipated it, there would

be very little overlap, but I am not sure what

discussion has taken place between the counsel for

the respective defendants.

MASON CJ: But as I say, we think the cases should be heard

successively rather than together.

MR CASTAN: Yes, if the Court please.

MR MERKEL:  If the Court pleases, the submissions we will be

directing to the Court will be in two parts.	The
first deals with the question of the defence arising under the Constitution, which is

paragraph 11 of the amended defence, and the second
will deal with the defence if it does not arise

under the Constitution, arising as an occasion of

qualified privilege.

We, in our outline to Your Honours at pages 1

to 8, have set out our submissions concerning the

content of the guarantee, the subject of

consideration by the Court in Nationwide News and

the Capital Television case. For present purposes

we would submit that the freedom guaranteed under

the Constitution is a freedom to criticize, discuss

and communicate information and opinions as well as

ideas about political matters, all aspects of

government and its institutions, including the

qualifications, conduct, performance and

suitability for office of those entrusted with part of the legislative functions of government, and the

plaintiff in this matter falls clearly within that

category.

Theophanous 3 14/9/93

The rationale given by the Court for the

guarantee being one in which it was necessary to
sustain democratic representative and responsible
government, in our submission, resulted in

Your Honours, in different ways, indicating that any impairment, limitation or burden on the

freedom, I think as Your Honour Justice McHugh put

it in the Australian Capital Television case at

page 745, must have a "compelling justification''.

Other of Your Honours indicated that the limitation must be no more than is reasonably necessary to

protect countervailing legitimate interest and I

think Your Honour Justice Brennan in particular

indicated that the limitation must not be such as

to impair the capacity or opportunity of the

Australian people to form the political judgments required to effectively exercise their constitutional functions and, in particular, the

right to vote.

We would submit that the publication, the

subject of this proceeding, lies at the core of the
matters, the subject of the guarantee discussed in

both decisions.

The letter published concerned the suitability of the plaintiff to continue as the Chairman of the Joint Parliamentary Committee on the Migration

Regulations. As Your Honours will be aware, the

migration regulations were passed pursuant to the

Migration Act and set up a code by which entry into

Australia was to be regulated. He was also the

sitting member and the candidate for re-election

for the seat of Calwell and had played, both in his capacity as chairman of the parliamentary committee

and as a member of the House of Representatives, a

high profile and very active role in relation to

federal migration policy. The publication occurred

at a time when it was publicly anticipated and

mooted that an election was due to be called.

In the events that occurred, the letter to the

editor was published on 8 November, the writs for

the election were issued on 11 February and we say

the writ in the present case was issued three days

later on 14 February. So, putting aside whatever

inferences one may draw from the sequence, we say

that the writ does have the capacity to operate in

a classic way as a stop writ or a fetter on public

comment issued at the time it was and brings

directly into question the issues the Court was

considering in Australian Capital Television about

the fetter on electoral debate and electoral

comment in that context.

The question that arises in the present case

is the extent of the operation of the implied

Theophanous 14/9/93

guarantee. For purposes of federal law there is no

restriction, limitation or burden imposed upon the

publication. In particular, there are federal laws
dealing with such criticisms, the Parliamentary

Privileges Act, 1987, sections 6, 10 and 16, the

Commonwealth Electoral Act at sections 329 and 327,

and the Trade Practices Act at section 65A would

exclude from their operation a publication of the

kind, the subject of the present litigation. The

question then arises as to whether the restriction,

limitation or burden that does arise under State

law, and we say it arises in the present case under

both statutory law and common law, offends the

guarantee. I should indicate at the outset to Your

Honours that the statement of claim, which is set

out in the case stated at page 12, alleges in

paragraph 2(b) publication:

widely throughout Victoria and throughout the

rest of Australia.

The defences at pages 21 to 27 rely on the various defences arising both at common law and

under the State codes or various State and

territorial legislation dealing with defamatory

publications. I will be handing up to Your Honours

an outline of the various statutory provisions

which give rise, or have given rise, to the various

grounds of defence, but in summary form the
publication in Victoria and the dissemination of

the publication throughout Australia has had the

consequence that different statutory regimes can

have the capacity to result in the publication

being capable of being lawful on grounds of defence

available in some States but unlawful in other

States and Territories where particular defences

are not available.

The main grounds of difference, and I will return to this in a little more detail later if I

may, are that in Victoria, Western Australia, South

Australia and the Northern Territory truth is a

complete defence, but under the legislative

provisions in New South Wales, in particular

section 15(2) of the 1974 Defamation Act, the

defendant is required to establish substantial

truth and that the imputation relates to a matter

of public interest, or is published under qualified

privilege, and I should indicate to Your Honours
that the question of public interest under
section 12 is one for the Court.

In contrast, in Queensland, Tasmania, and the Australian Capital Territory the requirement is

truth and that the publication is for the public benefit and that arises under section 376 of the

Queensland Criminal Code, section 15 of the

Theophanous 14/9/93

Defamation Act of Tasmania, and under the

Defamation Act 1901 in New South Wales which

operates in the Australian Capital Territory. In

those instances the question of public benefit is a

question of fact for the jury, and that arises in

Queensland under section 379 and Tasmania

a different operation.	section 20, so the justification defences all have
The other area of significant difference is that in certain of the States under the relevant
legislation there is a defence that publication for
the public good, or which is reasonable in all the
circumstances, will qualify as an occasion under
the statute of qualified privilege, but no such defence is available in the common law States where there is very little legislative intervention in Victoria and South Australia.
As Your Honours will see when the various submissions are put to Your Honours on qualified
privilege, the difference between a publication
being for the public good which would not require
the test of reciprocity of interest and duty required at the common law can result in a very dramatically different result or consequence as to the legality of the publication than an occasion of
qualified privilege.
The ultimate issue, in our submission, in the present case is whether the limitations so imposed
under State law on the right to publish and
disseminate articles concerning the subject-matter protected by the constitutional guarantee are
invalid as infringing that guarantee. We will
address our submissions at two levels. The first
is whether the guarantee operates to limit State
and territorial legislative power and, to the
extent that the common law is not modified or
abrogated by statute, to modify the common law
accordingly. That requires an analysis of the
conceptual basis of the guarantee and the question
left open by Your Honours in Australian Capital
Television and Nationwide News as to whether the
guarantee fetters State law.

The second question arises if the first is

answered in the affirmative, and that is whether

the guarantee limits State and territorial law

relating to defamation and if so, in what manner

and to what extent. The position that we will

ultimately be putting to Your Honours is that a

publication which is made bona fide and which

covers the subject-matter of the guarantee is not

actionable unless the plaintiff can demonstrate
that the person responsible for the publication was

knowingly aware of its falsity or was reckless in

Theophanous 6 14/9/93

not caring whether it was true or false, although,
in the ultimate position that we put, we put in our
case stated a number of different alternatives.

One fall-back on that test is whether the test

should be that of malice. The second is whether

the publication is reasonable in all the

circumstances. I will address those in the course

of the last part of our submissions.

Could I go directly to the first question, and

that relates to the reasons why the guarantee, the
subject of the two decisions in question, which

operate as a limitation on federal legislative

power should likewise operate as a limitation on

State legislative power or, put another way, on the

operation of State law.

The first reason that we would put to

Your Honours is that the guarantee, being as it is

to sustain the democratic representative and responsible government established under the Constitution, must at least certainly operate at

its very minimum in respect of criticism of

candidates for federal election or criticism of the

conduct of the federal government. I am aware that

Your Honours took a far broader view but

Your Honour Justice McHugh at page 744 talked in

the narrower context of the suitability for

electoral office as criticism in that regard being

a general right.

The first submission that we put is that that

guarantee must operate, certainly at the very

minimum level, to limit State legislative power to

the extent it operates to restrict communications

concerning federal political matters or federal

electoral candidates. I know I do not have to put

my submission at that narrow level because the
guarantee had a far wider operation but we would

submit that the guarantee, in substance, would be

rendered nugatory if the States were empowered to

restrict federal electoral comment. Of course, the

State Constitutions are not in any way limited by

reference to subject-matter and it would be only

under such an implied limitation that there would

be a fetter on State power.

We would say that the consequence of not having the limitation operate at the State

legislative level would produce the anomaly that

the State legislatures would have wider power to

restrict, what I will call federal, political or

electoral communications than the Commonwealth

Parliament has which we say is not a result that one could arrive at under the Constitution. That

is the first reason we would put forward for the

guarantee extending to a limitation on State power.

Theophanous 7 14/9/93

The second is that the reasoning of the Court

in not restricting the operation of the guarantee

to topics or subject-matters within federal

legislative competence or power afforded a

compelling justification for the same limitation,

that is, the limitation on federal power to be

imposed on State legislative power.

Could I take Your Honours briefly to the

Australian Capital Television case, 66 ALJR 695.

In Your Honour Justice Gaudron's judgment at

page 736 to page 737, starting at the bottom of the

second column at page 736, below paragraph G,

Your Honour set out three matters that dictated the

freedom of political discourse extended beyond

Commonwealth and Territory affairs.

I should say this was a passage concurred in

by Your Honours Justice Toohey and Justice Deane at

page 716. Your Honour set out three different

grounds which I will not read to Your Honours, but

particularly at the bottom of paragraph D at the first column of 737, that the interaction under the	the grounds led Your Honour to the conclusion, Constitutions and the federal Constitution and the recognition to the participation of the States in the electoral processes led, in the last line of
paragraph D, to Your Honour concluding that: in so doing, necessarily recognises their

democratic nature.

We would submit that the interaction that

Your Honour there discusses, and in particular in

the first three lines of the next paragraph:

Given the inter-relationship of State and

Commonwealth powers and the recognition in the

Constitution of the States' democratic

processes, the freedom of political discourse

must be seen as extending to matters within

the province of the States.

We would say that Your Honour's reasoning,

particularly the recognition of the democratic
process being at both federal and State level must,

in our submission, result in the conclusion that an

identical limitation must operate concerning State

legislative power. Your Honour the Chief Justice

discussed the same matter at pages 704 to 705,

particularly at the last two lines in the second

column at page 704 and then over to paragraphs A

and Bat page 705. We would say Your Honour's

explanation there would likewise result in the same

conclusion.

Theophanous 14/9/93

The recognition of those processes and their interaction under the Constitution, in our

submission, compel the conclusion that we have

contended for and, indeed, the anomaly would be

created if it were otherwise that the State

legislature would have wider power than the federal
legislature to restrict or limit political

discourse. We would say it is only under this

implied limitation that the fetter on State

legislative power can be found. The third reason

we would put forward is section 106 of the
Constitution providing, as it does, that the State
Constitutions are subject to the federal
Constitution and also section 5 of the

Australia Act 1986.

The third reason we would put forward is the operations of covering clauses 3 and 5. The

discussioh, by various of Your Honours in the

number of cases I will briefly take Your Honours

to, of the compact between the Australian people

and the State and Commonwealth governments

recognized under the Constitution, and the unitary

system of law that arises as a result of that

compact. We would say that that compels the

conclusion that the limitation must operate in a
unified and unitary way throughout the country, and

the present case probably more than any other with

defamation law fragmented as it has been throughout

Australia throws up very sharply the kind of questions that Your Honours were considering in

Leeth's case about the varying operations that

Commonwealth law may be subjected to depending upon

the State in which the cause of action, or which

the criminal process, may be pursued in.

But, the present case, in our submission, puts

that unitary system issue at a higher level because

we say that whatever else may be debatable about the operation of federal law, what we say is not

debatable is the supremacy of the guarantees

afforded by the Constitution, and in the same way

as the guarantees cannot operate differently

concerning State prerogative, we say they cannot

operate any differently concerning the freedom to

communicate.

The decision we would seek to take

Your Honours to first, if I may, is the decision of Your Honours in Leeth's case, 174 CLR 455. Could I

take Your Honours, firstly, to the judgment of

Your Honour the Chief Justice and Justices Dawson

and McHugh, at page 467 at point 5, where

Your Honours indicated that:

There is no general requirement contained

in the Constitution that Commonwealth laws

Theophanous 9 14/9/93

should have a uniform operation throughout the

Commonwealth. And then Your Honours said:

There is, of course, the implication drawn

from the federal structure erected by the

Constitution that prevents the Commonwealth

from legislating in a way which discriminates

against the States by imposing special burdens

or disabilities upon them or in a way which

curtails their capacity to exercise for

themselves their constitutional functions.

We would say that the same guarantee would

operate in much the same way concerning the

guarantee of freedom of communications. In

particular, we say there is a general requirement

that the Constitution itself has a uniform

operation throughout the Commonwealth. Of course,

covering clause 5, covering clause 3 and the dealing with the States and section 109, produced

that result. Your Honours then, at page 468 at

point 4, in dealing with why there was not the

requisite inequality in that case, said that:

There can be no question, specific

restrictions and implications arising from the federal structure apart, that the Commonwealth

may give a varying application to its laws by

reference to the laws of the States.

We would emphasize the exception there,

Your Honours, that implications arising from the

federal structure apart, which is the very

circumstance which we are concerned with in the

present case. Your Honour Justice Brennan at

page 475 at point 7 indicated, about five lines

from the top of the paragraph:	It would be offensive to the constitutional
indissoluble Federal Commonwealth", recited in the first preamble to the Commonwealth of
unity of the Australian people "in one offenders against the same law of the
Commonwealth to different maximum penalties
dependent on the locality of the court -
We would say that the same principle would

operate clearly, indeed, more clearly, in respect

of a varying limitation or burden imposed under

different State laws concerning the right to

communicate, particularly in respect of the kind of

communications we are concerned with directly in

Theophanous 10 14/9/93

the present case: suitability for federal office

and conduct of a federal parliamentary member in

his various capacities. Your Honours Justice Deane

and Toohey discussed the question of equality

before the law arising under the Constitution and

as a guarantee at pages 483 through to page 490.

We would, with respect, rely on the entirety of

Your Honours' discussion, but Your Honours start at

483 at point 7 when Your Honours say that:

The grants of Commonwealth legislative

power contained in section 51 of the

Constitution are expressly made "subject to"

the Constitution. They are confined by a

variety of overriding express guarantees and

prohibitions.

Then Your Honours discussed the federal

legislative power, but over at page 484

Your Honours, half-way down the page, say:

First, it would be somewhat surprising if the

Constitution, which is concerned with matters of substance, embodied a general principle

which protected the States and their

instrumentalities from being singled out by

Commonwealth laws for discriminatory treatment

but provided no similar protection of the

people who constitute the Commonwealth and the

States.

And it is the proviso that Your Honours there raise

that we say arises in the present case; that the
protection, or lack of it, presently arising under

State law in respect of publications of the kind we

are concerned with, have a varying rather than an

equal application and therefore we would submit -

and we will be ultimately coming to this - provide

an unequal protection in respect of the

constitutional guarantee. Your Honours then say:

Secondly, the Constitution's adoption, by	implication rather than express statement, of
the general principle protecting the States
and their instrumentalities from
discriminatory treatment illustrates the general approach of the framers of the Constitution to the underlying doctrines or
principles upon which it is structured. That
approach was to incorporate underlying
doctrines or principles by implication drawn
both from the nature of the Federation and from any particular express provisions of the
Constitution which reflect or implement those doctrines or principles.

Then Your Honours over at - - -

Theophanous 11 14/9/93

BRENNAN J:  What is the consequence of this argument in

terms of the validity of State laws which

exhaustively state the law relating to defamation?

MR MERKEL:  Your Honour, the consequence is that those laws

either infringe the guarantee, in which case they

would be invalid, to that extent anyway, or that

they fall within the guarantee and do not infringe

it, in which case they may be valid. The laws are
ones of general operation and I do not say it is
beyond the State Parliament's competence to enact a

general code relating to defamation law, but that

code cannot infringe the constitutional guarantee.

BRENNAN J: But are you saying that if there is a variety,

for example, between the Criminal Code of

Queensland and the law of Victoria with respect to

truth and public benefit, that one or other of

them, or both, are invalid in so far as they apply

to a discussion of matters relating to federal

politics?

MR MERKEL:  We would answer it in two parts, Your Honour:

the first is, to the extent they do not infringe
the guarantee, the question does not arise; it only

arises if and to the extent that they infringe the

guarantee. Once they infringe the guarantee and

operate in respect of federal political comment, if

I can call it that, then to that extent they would

lose their validity.

BRENNAN J: Well, what is the significance of the variation

on which you are relying here? I can understand

you saying, if they infringe the guarantee, then to

that extent they fall. Are you saying something

new when you are relying on Leeth's case?

MR MERKEL:  Only this, Your Honour, that we rely on

Leeth's case to establish the proposition that any

burden imposed on publication protected by the

guarantee must have an equal operation throughout

the Commonwealth, at least in so far as that burden

cannot result in publication being lawful in one

place and unlawful in another.

BRENNAN J: But if the publication infringes the guarantee,

cadit quaestio? What does it matter if there is a

variation?

MR MERKEL:  As such, it does not, Your Honour. Once it

infringes the guarantee it falls to that extent.

BRENNAN J: Why are we concerned about variations? If there

is a uniform guarantee, with a uniform content

which strikes down any offence of law, does it

matter that the laws would otherwise have a

differential application? Because they must all

Theophanous 12 14/9/93

fall to the extent which is limited by the uniform

guarantee.

MR MERKEL:  Your Honour is right, and I accept what

Your Honour says. The concern we have in Leeth's

case is really from more the negative point of

view, that to the extent a burden can be imposed it

can be no greater than that permitted by the

Constitution, so that the burden cannot operate

unequally. So that there can be no valid burden

which infringes the consitutional guarantee. That

is as far as we need go. But, the publication in

the present case highlights the problem - I will be

later taking Your Honour to what was said by

Justice Jacobs in Calwell's case about a

publication concerning the loyalty of the former

leader of the opposition falling clearly within the

New South Wales statutory defence of being in the

public good.

We would say that quite different principles

and certainly on the submissions put by our

opponents, a quite different result would pertain

if the case was to be determined solely on the

basis of the law relating to qualified privilege.

We would say that the inconsistencies that go to

legality of the publication really demonstrate the

problem.	But having said that, I have no quarrel
with what Your Honour put to me.	We do not get to

the illegality or invalidity of State law until
they infringe the guarantee.

I was just going to take Your Honours to point 7 at page 485 of Your Honours' judgment -

that is Justices Deane and Toohey - where

Your Honours talk of the various principles, and

Your Honour said:

The second involves the underlying or inherent

theoretical equality of all persons under the

law and before the courts. The common law may

Your Honours go on an talk at pages 486 and 487 of discriminate between individuals.

problems of locality and particular State matters
being able to give rise to different results, but

no such issue arises in the present case.

Your Honours then, at pages 487 to 488 discuss

the role of section 117 which is further support
for the submissions that we put, because here one
can have section 117 operating in a way that

results in a publication having a varying degree of

legality, depending on the State in which

publication occurs.

Theophanous 13 14/9/93

We also would rely on what Your Honour

Justice Gaudron said at page 502, where Your Honour

at point 4 talks of equality before the law and

equality of treatment. We say, arising as it does

in the present case as a constitutional guarantee,

the result must be that which cannot produce

legality in one State and illegality in another.

We also in this regard rely on the discussion

by Your Honours of the operation covering clause 5

to give the Constitution supremacy within the legal

system and the guarantee supremacy not just over

inconsistent federal law, but also State

legislation and common law.

Can I take Your Honours briefly to

Breavington's case, 169 CLR 41. We should say

these passages are in support of the argument that

the guarantee, if operating to limit State law,

must clearly operate to limit both State statute

and common law. His Honour Justice Wilson and Your Honour Justice Gaudron at page 97 point 7

dealing with Chapter V said:

However, in the context of Ch. V of the

Constitution, in which s 118 is to be found,

s 118 has, we think, a wider operation.

Chapter V expressly recognizes that upon and

after federation, the States would exist as

States with continued law-making powers and

that their laws would continue, but within a

body politic in which the Constitution "and

all laws made by the Parliament of the

Commonwealth under the Constitution, shall be

binding on the courts, judges, and people of

every State ..... covering Cl. 5.

Your Honour Justice Deane at page 120 in the

opening words of Your Honour's judgment talked at

line 3 of:

the compact between the people of those

Colonies was to unite in one indissoluble

Commonwealth under a new system of law -

and then Your Honour referred again to covering

clause 5 and the compact was part of the new system

of law. We say that that compact giving rise to

the very guarantee the subject of the proceedings in the present case must, in so far as State law,

whether it be legislative or common law, must give

way to the implied limitation. We would rely on

Your Honour's discussion at pages 123 and 124 in

support of our submissions in that regard and the

unitary system that Your Honour there discussed.

Theophanous 14 14/9/93

Your Honour returned to the same principle in McKain, 174 CLR 1, and I will not take Your Honour

to that case, but in McKain at pages 55 to 56

Your Honour discusses the same matters, and also in

Stevens v Head, 112 ALR 7. So we say that those

decisions and also His Honour Justice Murphy, who

discussed the same matter in Ansett Transport

Industries v The Commonwealth, 139 CLR 54,

His Honour's discussion is at page 88, and in The University of Wollongong v Metwally, 158 CLR 447,

in particular at pages 467 to 468, His Honour

indicated that the Constitution, supported as it

was in respect of its supremacy under covering

clause 5 in section 109, resulted in modification

of the statutory powers of the State and also State

common law. We say that relying on those

decisions, it is our submission that clearly the

limitation would operate to modify and limit State

power, whether legislative or whether arising under

the common law.

The fifth point we would make is that the same

reasoning would extend to territorial law. That

concerns the Australian Capital Territory and the

Northern Territory. Under the Commonwealth

Electoral Act the Territories were given representation in the Senate under section 40 and in the House of Representatives under section 48

and accordingly became part of the body politic
which Your Honours discussed in the decisions we

have taken Your Honours to, both in respect of the

political aspect and the geographic aspect they

would fall within covering clause 5 and also the

system of representative government which

Your Honours discussed in the two cases.

So we would submit that the doctrine operates

to limit State and territorial law and that any

common law, which is inconsistent with the

limitation, would be modified accordingly.

We would finally, in respect of that

extension, draw support from the decisions of the

Supreme Court in Canada under the Canadian Charter.

The first, if I can take Your Honours to it, is the

Retail Etc Union v Dolphin Delivery Ltd,

33 DLR (4th) 174. The question we are concerned

with in the present case does not arise in Canada,

because section 32 of the Charter makes it clear that the rights are as between the State and the

citizen and not as between citizens, so that the

question of freedom of speech guaranteed under

Article 1 does not arise because of the limitation

under Article 32, but the court on two occasions

has considered the extent to which the guarantees

embodied in the Charter will themselves operate to

modify the common law. The consideration in

Theophanous 15 14/9/93

Dolphin's case firstly appears at pages 190 to 191 of the judgment of Justice McIntyre. His Honour at

190 under the heading, "Does the Charter apply to

the common law?" says:

In my view, there can be no doubt that it does apply.

And he sets out section 52(1) of the Constitution

Act which says that:

The Constitution of Canada is the supreme law
of Canada, and any law that is inconsistent
with the provisions of the Constitution is, to
the extent of the inconsistency, of no force

or effect.

We say, that would have the same operation of

covering clause 5. His Honour then goes on at the

top of page 191 to say:

To adopt a construction of section 52(1) which

would exclude from Charter application the

whole body of the common law which in great

part governs the rights and obligations of the

individuals in society, would be wholly

unrealistic and contrary to the clear language

employed in section 52(1) of the Act.

We would, with respect, say that the same reasoning can apply in the present case.

There is also a further discussion in a more

recent decision of the interaction between the

Charter and the common law by Justice McLachlin.

That appears in the decision of the Committee tor

Commonwealth v Canada, 77 DLR (4th) 384, and

Justice McLachlin at pages 460 to 461 arrives at

the same conclusion and says that to the extent

that the common law rights of the Crown are

inconsistent with the rights guaranteed by the

Charter, the common law would be modified

accordingly. We would say that the same approach has been taken in New York Times Co v Sullivan in

relation to the First and Fourteenth Amendments and

we have set that out in some detail at page 18 of

our outline of argument. So we would submit that

for those reasons the guarantee does have the

operation that we have contended.

The second level of our submissions that we

put to Your Honours raises the question as to

whether the guarantee limits the operation of State

law relating to defamation and if so, in what

manner and to what extent.

Theophanous 16 14/9/93

In dealing with that issue, can I take

Your Honours to the Australian Capital Television

case, and also Nationwide News, both of which are

reported in 66 ALJR. The emphasis that we want to

focus on by reference to both decisions is that the
publication in the present case is what we
described earlier at the core of the guarantee,
because it relates directly to the suitability for
office of Dr Theophanous, both as chairperson of

the Joint Parliamentary Committee and also as a

member for Calwell in the House. What Your Honour

the Chief Justice said at pages 704 to 705,

particularly at page 705, second column at

paragraph F, Your Honour, half-way down that

paragraph, said:

And the Court must scrutinise with scrupulous

care restrictions affecting free communication
in the conduct of elections for political

office for it is in that area that the

guarantee fulfils its primary purpose.

("[T]he constitutional guarantee has its

fullest and most urgent application precisely

to the conduct of campaigns for political

office" -

Your Honour then refers to United States decisions,

and then Your Honour adds:

The Court was there speaking of the First

Amendment which is broader in scope than the implied guarantee in the Australian

Constitution but the comment applies to our

situation.

Your Honour Justice McHugh at page 743 dealt

with the same circumstance, column 1, paragraph F,
where Your Honour said:

If the institutions of representative and

responsible government are to operate

effectively and as the Constitution intended,

the business of government must be examinable

and the subject of scrutiny, debate and

ultimate accountability at the ballot box.

The electors must be able to ascertain and

examine the performances of their elected
representatives and the capabilities and

policies of all candidates for election.

Before they can cast an effective vote at

election time, they must have access to the

information, ideas and arguments which are

necessary to make an informed judgment as to

how they have been governed and as to what

policies are in the interests of themselves,

their communities and the nation. As the

Supreme Court of the United States pointed out

Theophanous 17 14/9/93

in Buckley v Valeo ..... the ability of the

people to make informed choices among

candidates for political office is fundamental

because the identity of those who are elected

will shape the nation's destiny.

Your Honour Justice Brennan discussed the same

problem at page 670 in Nationwide News at column 2

paragraph G, where Your Honour in the last 10 lines

or so said:

The balancing of the protection of other

interests against the freedom to discuss

governments and political matters is, under

our Constitution, a matter for the Parliament

to determine ..... I would state the governing

implication in these terms: the Constitution

prohibits any legislative or executive

infringement of the freedom to discuss

governments and governmental institutions and

political matters except to the extent

necessary to protect other legitimate

interests.

Your Honour, at page 671A then said that

legislative intervention shall not be to an extent

which substantially impairs the capacity of or

opportunity for the Australian people to form the

political judgments required for the exercise of

their constitutional functions. We would say that

the defamation law applicable to the present

publication does constitute such an impairment.

BRENNAN J:	You say it, do you propose to state why?
MR MERKEL:	Yes, Your Honour. There are four documents we

would seek to hand up to Your Honours. Could I
indicate that the first document, "Proposed

Amendments to the Questions to Case Stated" which

we would ask Your Honours to grant us leave to make

by consent.	The second question was, in effect,
posed in a vacuum and it was designed to deal

directly with restrictions arising under the law

relating to defamation, and question l(a) dealt

with comment in the course of discussion rather

than the subject of discussion, and we formally ask
for Your Honours' leave to amend the questions to

the case stated.

The second document sets out the legislative

basis for the different defences, the subject of

the defence which I took Your Honours to, and I

have already discussed those matters with

Your Honours.

The final two documents which are the ones I

will be seeking to address Your Honours on relate

Theophanous 18 14/9/93

to the categories of reasons for extension of free

speech, the free speech guarantee to defamation in

respect to federal parliamentarians, which is the

subject we are concerned with. The second of those

two documents relate to the significance of the
standard that we submit is applicable, and that is,
for the defamation law not to render actionable

statements that were made in good faith but were

later found to be mistaken.

Can I go to the anomaly that arises very

directly in the present case by an example and then

take Your Honours to the discussion in the papers

we have handed up to Your Honours.

This Court considered the New South Wales

defence of the publication for the public good in

Calwell's case. Can I take Your Honours to it? It

is Calwell v Ipec Australia Ltd, 135 CLR 321. This

would, hopefully, give Your Honour Justice Brennan
an example of the inconsistent consequence that

would arise from quite different principles of law

governing the publication, if I can, just by way of

example, deal with the situation where the public

good is a defence in many of the States and in

Victoria, where it is not a qualified privilege, is

the only relevant defence in this regard.

The Court was considering the defences at

page 327 under the then New South Wales Defamation

Act and, in particular, the section I am concerned

with is 17(c) which is set out at the bottom of

327, where:

"It is a lawful excuse for the

publication of defamatory matter if the

publication is made in good faith-

(c) for the protection of the interests of
the person making the publication, or of some

other person, or for the public good -

and it is the words "or for the public good".

Justice Jacobs considered that at page 335.

MASON CJ:  Mr Merkel, I should interrupt to say that I will

amend the stated case in accordance with the new

draft that has been handed up.

MR MERKEL:  Thank you, Your Honour. In a passage at 335

over to 336, which was concurred in by

Justice Stephen at 325, His Honour considered the

defamation defence under 17(c) and His Honour,

about 12 lines from the bottom of the page said:

Theophanous 19 14/9/93

The only defamatory imputation was that which

arose from the "innuendo", namely, that the

plaintiff lacked loyalty. The loyalty was

political loyalty in the Federal Parliamentary

Labour Party. There was no imputation against

the private character of the plaintiff. I

find it hard to imagine a subject matter which

should in our democracy more freely be able to

be discussed, in writing or by word of mouth.

It is for the greatest public good that views on the political attitudes, including party loyalty, of members of the Houses of

Parliament should be able to be expressed

without inhibition. The public are entitled

to the views on such a subject of political

commentators, expert or inexpert. The views

expressed, and the imputations thereby made,

may be correct or incorrect, but the public

has an interest in hearing them whatever they

may be and it is for the public good that

interest should not be stultified. If a

commentator honestly believed that the

plaintiff lacked loyalty to the then recently
appointed leader he was entitled to say so

without fear that his view might be incorrect

and that he would be liable in damages for the

imputation.

We would submit that the reasoning there

expressed by His Honour could be said in a sense to

be mirror imaged, in part anyway, by the reasoning

of this Court in Nationwide News and Australian

Capital Television and that the guarantee, we would

submit, would protect the very innuendo or

discussion that His Honour is there concerned with

and, indeed, any bona fide discussion on political

attitudes, suitability for office and opinions,

correct or incorrect.

So that under the States where there is a

"public good" defence - and that is several of them

in the document that we have handed up to

Your Honours - we would submit that the

publication, the subject of the present case, would

appear to fall, or would be strongly arguable that

it would fall, within the principle there
enunciated. But then when one comes to the common

law States such as Victoria and South Australia

where there is no such defence but only a defence

of qualified privilege, one is immediately met by

the qualified privilege barrier of reciprocity of

interest and duty.

It may be that in some circumstances

publications to the world at large may satisfy that

criterion, but it is certainly, on any view, a

criterion that has a very different operation to

Theophanous 20 14/9/93

qualified privilege. Probably that was brought out

very sharply by Your Honour Justice McHugh in an

article that Your Honour wrote in the Gazette of

Law and Journalism 1(3) 1986 at page 10, which is

on our list of authorities. Your Honour there

discussed the New South Wales defences of the

public good and particularly the publication being

reasonable in all the circumstances. Your Honour

compared the width of those defences with the First

Amendment freedoms under the American Constitution.

I think the last occasion I put to Your Honour

Justice McHugh something Your Honour had said in

1986, Your Honour said after reflecting on it that

Your Honour had changed your mind.	We would submit
that what Your Honour said here -

DEANE J: Is this a reputable publication?

MR MERKEL:  I did not meet with much success last time I

quoted His Honour in the New South Wales Court of

Appeal when His Honour said - when he looked at
what he said in 1986, His Honour said, "I think I

might have changed my mind." Hopefully I will meet

with more success on this, Your Honours.

His Honour discussed the New York Times v Sullivan

standard, in particular in the second column of

page 11, where Your Honour said:

Under New York Times v Sullivan the

plaintiff must prove both the falsity of the

defamation and either knowledge of the falsity

or reckless disregard for the truth by the

defendant when making the publication.

Your Honour then discussed a number of cases which

we have referred to in our outline, particularly
Gertz's case. Your Honour turned to the New South

Wales defamation law. At the bottom of the second column Your Honour focused on l(c), that the

publication, after meeting certain criteria about

interest or apparent interest:

the conduct of the publisher in publishing

that matter is reasonable in the

circumstances -

Your Honour then, in the middle of the first column

at page 12, said:

Much can be said for the view that it is

now reasonable to publish allegations

concerning the official conduct of public

officials if an ordinary person considering

all the circumstances would think that the

allegations were probably true and needed to

be investigated.

Theophanous 21 14/9/93

If this proposition becomes accepted by

the NSW courts, the difference between First by section 22 will be marginal in both cases.

It can never be identical because the onus of

proof ensures that the First Amendment will
protect even the deliberate lie when the

plaintiff lacks the necessary evidence.

Putting aside the question of onus there, the

point that we make is that certainly the width that

Your Honour is suggesting may be accepted, and also

the principle that Your Honour states at the bottom
of the first column, second last paragraph:

If the conduct of public institutions and officials is only to be properly scrutinized,

it is only to be expected that erroneous,

hurtful and defamatory statements will be

made.

Then, Your Honour, at the top of the next column,

says:

But unless truth alone is to be a defence

to statements about the public conduct of
public officials, the public interest in
robust, wide ranging debate on matters of
public concern requires that the interests of

individuals in their reputations must give way

to the right to make good faith statements.

Moreover, public officials undoubtedly have greater access to the media than other

citizens. They are usually in a position to

correct untrue statements. The remedy of

"more speech" rather than an action for

damages is arguably the answer to untrue

statements concerning public officials or

figures.

The point we make, apart from saying that we would

agree with what Your Honour puts in that article,

is that it is clear that the good faith for the

public good comments would, approaching it as

Your Honour suggested the courts may or approaching

it as Justice Jacobs did in Calwell, afford a

framework for the present publication to clearly

enjoy qualified privilege in the statutory sense

but, particularly on the basis of the submissions

that are put against us, could not not qualify for

qualified privilege because of the lack of

reciprocity between the publisher and those who

receive it. The point that we make ultimately is

that quite different standards, likely in the real

world to produce inconsistent results as to the

Theophanous 22 14/9/93

legality of the same publication, will arise in

that context.

Further, one can go to the other example I

gave Your Honours of justification alone being a

defence in certain jurisdictions but requiring

public interest, in one part in New South Wales

determined as a question of law, Queensland as a

question of fact. So once again one can see in a

very real way quite different results and

consequences arising because of the different

standards set by the law throughout Australia.

It is in that context that we would submit

that the free speech guarantee should apply. We

have headed our document "Defamation in Respect of

Federal Parliamentarians". We say that is the

issue in our case. It clearly does not raise as such the public figure questions or the width of

the First Amendment of the United States, and it is

clearly within the framework and the structure in

which Your Honours established the implication in

Capital Television because it relates to what I

have already indicated is the core and the primary

purpose of the protection.

So, theoretical questions about the width of

the guarantee and how far it extends and to whom it
extends, do not arise in our case, because we are

at the centre of the protection.

We have sought to set out in the document we

have handed to Your Honours, references set out on

the last page, the reasons why the guarantee should

so extend. In a general sense, we put our

submissions in two parts. First is, why the

guarantee should, and we would put it as highly as

"must" operate, and the question is, secondly, how

and in what manner it should operate.

We have referred Your Honours to the passages

that we rely upon for the comment in the present	in Nationwide and Australian Capital Television,
case. What we have set out under various headings,
particularly in paragraphs 1 to 4, are passages
from other jurisdictions where the same sentiments
expressed by Your Honours in Nationwide and the
Australian Capital Television case are supported.
We say that paragraphs 1 to 4, dealing with the
issues Your Honours considered, I need not take -

MASON CJ:  What is the document you are directing attention

to?

MR MERKEL: Sorry, Your Honour. There should be a document

headed "Reasons for Extension of Free Speech

Theophanous 23 14/9/93

Guarantee to Defamation in Respect of Federal

Parliamentarians".

MASON CJ: But, did you say one four?

MR MERKEL: Sorry, Your Honour. Paragraphs 1 through to

paragraph 4.3 at pages 1 to 3.

MASON CJ:  I see.

MR MERKEL:  Sorry, Your Honour. I will not take

Your Honours to any more than ask Your Honours to

note the headings, but the matters there really are

the matters that gave rise to Your Honours'

determination that the implied guarantee would
operate in the manner that Your Honours indicated

in the two decisions. But, I want to briefly

address three other matters which really start from

paragraph 5 at page 3. The first relates to the

special position of parliamentarians and

Your Honour Justice McHugh, in the article I took

Your Honour to, had indicated about the

parliamentarians' access to the media to respond.

The second reason at 5.2, and we have set out

authorities where these points have been accepted

as a basis for limiting or giving some different

protection to parliamentarians, this 5.2, we say

that the politicians, by reason of their selection

to enter public life and their role - and this is

pinpointed by Dr Theophanous' positions in the
present case - must accept criticism, and criticism

which is personal because it relates inherently to

their suitability for office - - -

McHUGH J: But, you go beyond criticism, do you not? You

want to publish false and defamatory facts?

MR MERKEL: Well, Your Honour, we say that it is very hard

and, indeed, well nigh impossible in the political

arena, to draw a line, in a sense, in a practical

way between the two that would not have the effect of substantially fettering the freedom that we say is the subject of the guarantee. If - - -

McHUGH J: But, what is there about political life? In

other contexts nobody criticizes the penalizing of

disseminating false information. No one suggests

that the Trade Practices Act in section 52

interfers with freedom of speech, although it

frequently has the effect of penalizing false

information. What is there about political life,

or public life for that matter, that should require

courts to draw a distinction?

MR MERKEL:  Your Honour has jumped ahead of me in that it is

the next document that hopefully provides the

answers to Your Honour and I will address

Theophanous 24 14/9/93

Your Honour fully when I go to that document if I

might. This document is really designed to do no

more than indicate why the guarantee should extend

to defamation law in respect of parliamentarians.

We would say it should extend to defamation law

more generally, but that is not really the issue,

and we select particular factors which are unique,

if I can put it that way, to the parliamentarian,

to say that whatever immunities might be suggested

in relation to others, it does not apply to the

parliamentarian. The point that we make at

paragraph 5.2 is that necessarily criticism in this

arena will, because it may relate to their

suitability and fitness for office, the policies

that they pronounce, the emotive and controversial
nature of the life that they necessarily engaged

in - and the present case could offer few more

clear examples than that in the area of migration

policy and law - we say that it must be that they

have chosen public debate rather than defamation law as the primary vehicle for which they should respond to matters, within the ambit of the

guarantee. I do not go beyond that. The guarantee

would not protect comment in respect of their

private lives or comment which is beyond that which

is within its subject-matter.

BRENNAN J: Why not? After all, some people might think

that there is no dichotomy between private and

public life. Why cannot somebody, who has that

view, under your argument, express themselves in

discharge of their political responsibilities in

those terms?

MR MERKEL:	Your Honour, primarily, the private arena would be one which we would say does not offer any
apparent intrusion into the constitutional
protection, but there may be circumstances where it
may be of relevance, and I do not want to
hypothesize where it would arise, but it would only be relevant, Your Honour, because it falls within
the protection of the guarantee.

BRENNAN J: Well, somebody says, "This politician is playing

false with his wife; he will therefore play false

with the electors".

MR MERKEL:  Your Honour, that may or may not attract the

protection.	It may depend on his role and it may
depend on its context.	One can think of examples

on both sides of the line, Your Honour. It may be

that if the comment made it relevant in a way that

was accepted as being relevant, then it would be

protected.

BRENNAN J:  Then what is your definition of this protection?

Theophanous 25 14/9/93

MR MERKEL:  The definition of the protection, Your Honour,

is that which really was defined by the Court in

Capital Television and Nationwide News, that

matters - - -

BRENNAN J:  Would you remind me of it then.

MR MERKEL: That was a harder question, Your Honour, because

it was put variously; I think Your Honour put it in

respect of political and economic matters. I think

His Honour Justice McHugh related it more to the

electoral context. But in general terms it related

to what I indicated at the outset, which was a

freedom to criticize, discuss and communicate

information, opinions and ideas about political

matters, all aspects of government and its

institutions, including the qualifications,

conduct, performance and suitability for office of

those entrusted with part, in this context, of the

legislative function of government.

It is in that narrow confine that I approach

the present case, and I say that we do not wish to

test the outer parameters because it is not

necessary to do so, because we have a person

charged, in no small part, with part of the

legislative function of government and we say that

that is why this issue is at the core of the

guarantee. There will always be questions of

difficulty on the fringe but that is not a matter

we say arises for decision or determination in the

present case.

If the dichotomy between the private and the

public life is one that is broken down in a
particular context one can imagine hypocrisy

between a minister's public role and that which he

may have privately as discrediting him in a valid

way before the electorate as being protected, but a

malicious assault on his personal life to try and

rationally relate it to some quality in his public

life would probably fall on the wrong side of the

line. We would submit that that really only raises

difficulties with the protection - and a protection

which is always inherently difficult because of the

nature of the subject-matter with which it deals.

We would say that because of that the points that

we make in paragraph 5 about the politicians

voluntarily choosing this path of life, and

subject-matter with which they are to be concerned.

BRENNAN J: That means the courts will be the determiners of

criticism that is politically correct and

acceptable?

MR MERKEL:  Your Honour, we say only if the result for which

our opponents contend is correct. It is to avoid

Theophanous 26 14/9/93

that problem that we say that the only proper or

balanced test is that in this area which has

evolved in the United States but is identical, we

would say, in relevant respects to the public good

defence, which arises in Australia. The way in

which it is put, Your Honours, by Justice Brennan

in Dun & Bradstreet, in respect of the New York

Times Co v Sullivan defence is - and this is at the

top of our second sheet:

"(T)he First Amendment shields all who speak

in good faith from the threat of unrestrained

libel judgments for unintentionally false

criticism of the public official."

We would say any less a test really involves

the Court in the process Your Honour has raised

with me, whether it was politically correct or

incorrect. We say that is precisely the issue that

cannot be, and should not be, determined by the

courts. We would submit that it is only when one

approaches it with full and effective protection

which is derived from the purpose for which the

limitation was imposed that one can find that the

result Your Honour puts to me can be avoided rather

than encouraged. There is nothing new in the area

of defamation or about this problem. The public

good defence throws it up in a very sharp way and

each time the courts have considered it in a

general sense they have given a great weight to the
public interest but then one is met by the

qualified privilege point about the publication

being to a wider group than is necessary to protect

the legitimate or narrow interest. That, in a

modern world, has an air of total unreality about

it, with network broadcasting, electronic news

media and news services, the narrow interest point

just does not have an applicability. We say that

it tends to subvert the democratic process which

Your Honours found as the reason for the

protections.

We go to paragraph 5.3 which deals with

another special position of parliamentarians, and

that is the absolute privilege in respect of

utterances made during parliamentary proceedings

which gives them the ability to respond to any

criticism, warranted or unwarranted. We say that

it is anomalous if comments made by citizens in

relation to the performance and qualifications of

those persons do not attract a similar protection.

We do not for one minute contend the protection is

absolute, but the qualified protection that we put

we say is a rational basis for intrusion on this

area.

Theophanous 27 14/9/93

The same point is made in paragraph 5.4 but in

a different way. We say the reason for the

protection itself is the same for why there should

be a protected response. At paragraph 5.5 we take

Your Honours to the Derbyshire County Council case which was considered by Your Honours in Australian

Capital Television and indicate the underlying policy reasons why we submit the protection should

be available. Could I take Your Honours briefly to

the Derbyshire case, (1993) 2 WLR 449.

The decision, with respect to Their Lordships,

pinpoints the problem of artificial divisions or

lines of demarcation in respect of the freedom that

we are concerned with. The case concerned

defamatory comment concerning the council which, as

is set out by Lord Keith at page 456H, His Lordship

says:

it is a democratically elected body, the

electoral process nowadays being conducted

almost exclusively on party political lines.

It is of the highest public importance that a

democratically elected governmental body, or

indeed any governmental body, should be open

to uninhibited public criticism.

May I state at the outset that Their Lordships were

considering here an absolute immunity. It is not

what we are contending for in the present case, but
we do note that of course we are concerned with

democratically elected representatives of the

people on party political lines, and we say it is

not easy to discern the difference between a

protection that an elected body corporate as

opposed to elected representatives should have in

respect of immunity to uninhibited public

criticism. We say there is a sufficient inhibition

in the policy reasons that we put forward.

What Their Lordships then go on to say at

page 457 at paragraph C:	If the right to criticize the government is a
privilege which, with the exceptions above
enumerated, cannot be restricted, then all
civil as well as criminal actions are
forbidden.  A despotic or corrupt -

Sorry, that is from the quote from City of Chicago

v Tribune Co with which the American law had given

an immunity from suit to persons criticizing

government. His Lordship then picks it up at

paragraph Eat page 457:

These propositions were endorsed by the

Supreme Court of the United States in New York

Theophanous 28 14/9/93

Times Co v Sullivan. While these decisions were related most directly to the provisions

of the American Constitution concerned with
securing freedom of speech, the public
interest considerations which underlaid them

are no less valid in this country. What has

been described as "the chilling effect"

induced by the threat of civil actions for

libel is very important. Quite often the

facts which would justify a defamatory
publication are known to be true, but
admissible evidence capable of proving those
facts is not available. This may prevent the
publication of matters which it is very

desirable to make public.

Then Their Lordships referred to Hector's case

which I will take Your Honours to separately.	Then
at page 459 paragraphs D and E, Their Lordships
come to the conclusion at paragraph D:

Reputation in the eyes of the public is more

likely to attach itself to the controlling

political party, and with a change in that
party the reputation itself will change. A

publication attacking the activities of the

authority will necessarily be an attack on the

body of councillors which represents the

controlling party, or on the executives who

carry on the day to day management of its

affairs. If the individual reputation of any

of these is wrongly impaired by the

publication any of these can himself bring

proceedings for defamation.

Their Lordships give an absolute immunity to the incorporated body, but we would submit it is

somewhat anomalous that the policy reasons that

Their Lordships give for that immunity can nevertheless apply the same inhibitions to an

attack which is necessarily on the controlling
councillors as being actionable.	What

Their Lordships seem to be saying there is that an

attack on the body is not to be actionable because

of the public interest requirements of immunity

from such criticism, but yet the same publication,

in so far as it is necessarily an attack on the

body of councillors, is actionable.

What we say there is, without wanting to enter

the arena of debate about the immunity of a
publicly elected body corporate, we say that

Their Lordships had, in a sense, a half-way

position concerning the situation they dealt with,

and it is the New York Times v Sullivan position,

certainly in respect of elected representatives,

Theophanous 29 14/9/93

because that avoids the anomaly of protecting a

publication from suit by the council, but not
giving any protection from suit for the same policy

reasons from the elected representatives who are

defamed by the publication.

We say that Their Lordships adopted the New

York Times v Sullivan principle. It was not

necessary to consider how that may reflect upon the

elected representatives who constitute the council

in question, but we say both logic and principle

would dictate that the New York Times v Sullivan

situation would be available in those circumstances

for elected representatives. We need go no wider than that in the New York Times v Sullivan sense.

At paragraph 6 of the document we handed to

Your Honours we have put forward certain statements

by the courts concerning the significance of the
free press. In a sense that becomes the vehicle,

and the primary vehicle, for communication of the

kind, and particularly communication concerning

government and public matters, and we say it is a

vital element in the communication process and

inhibition of the press in this area is where the

greatest disability arises in the area that

Your Honours were protecting.

Finally, in paragraph 7, we have the "Restrictions on Freedom of Expression Amount to

Censorship which is Anathema in Free and Democratic

Society". Can we take Your Honours briefly to what was said by Their Lordships in the Privy Council in

Hector v A-G of Antigua and Barbuda,

(1990) 2 AC 312. Their Lordships were concerned

with a law, and it is set out in the headnote at

page 313B -

section 3 of the Public Order (Amendment) Act

provided that any person who printed or

distributed any false statement which was

"likely to cause fear or alarm in or to the

public, or to disturb the public peace -

and it is the last words that were significant -

or to undermine public confidence in the

conduct of public affairs" should be guilty of

an offence.

Their Lordships considered the impediment to free

speech at 318B and C, where they said:

In a free democratic society it is almost

too obvious to need stating that those who
hold office in government and who are

responsible for public ad.ministration must

Theophanous 30 14/9/93

always be open to criticism. Any attempt to

stifle or fetter such criticism amounts to
political censorship of the most insidious and

objectionable kind. At the same time it is no

less obvious that the very purpose of

criticism levelled at those who have the

conduct of public affairs by their political
opponents is to undermine public confidence in

their stewardship and to persuade the

electorate that the opponents would make a

better job of it than those presently holding

office. In the light of these considerations

their Lordships cannot help viewing a

statutory provision which criminalises

statements likely to undermine public

confidence in the conduct of public affairs

with the utmost suspicion.

Then Their Lordships find that it was an

unacceptable impediment on the freedom of the press

for the offence to be created. Now, true it is

Their Lordships were considering an offence but, we
say, in the context of the policy principles
underlying the concerns which are the subject of

the present litigation, the notion of unrestrained

lible judgments discussed in the United States'

courts, the notion of whether it is an offence in
respect of unlawful conduct really go to the nature

of the penalty imposed but, we say, the policy

reasons should prevent any impediment other than

that which is reasonably necessary, or appropriate,

to protect the countervailing interest.

So, it is for those reasons that we submit

that policy reasons dictate, at least at the first

step, that the guarantee extend to any fetter or

burden on free speech arising from the law of

defamation, in so far as it concerns federal

parliamentarians. The next step which, we say, is

obviously interwoven with the first step, is the

nature and extent of the protection and the manner

in which it is to operate, and in that regard, can

I take Your Honours to the last document amongst

the documents I have handed up to Your Honours,
"The Value of Claims and Opinions Later Found to be

Mistaken". We would say, in substance, that to not protect claims and opinions of this character is

really to denude the protection of a significant

and very substantial basis for its existence.

Your Honours Justices Deane and Toohey raised

the very question in the Nationwide News case. At

page 681, if I could take Your Honours briefly to

it, at paragraph G, first column, after dealing

with the Canadian decision of Switzman v Elbling

and the essentials to the working of a

parliamentary democracy, Your Honours then said:

Theophanous 31 14/9/93

In that regard, it is important to bear in

mind that freedom of political discussion

necessarily involves freedom to maintain and

consider claims and opinions about political

matters notwithstanding their unpopularity
among either the general populace or those in

government or that they may ultimately be

shown to be mistaken. That being so, the fact

that particular assertions, opinions or

criticisms about matters relating to

government are rejected by government or are

found by the courts or proved by subsequent

events to be mistaken does not, of itself,

suffice to establish that the suppression of

their expression is or was consistent with the

effective functioning of representative

government.

We would, with respect, say that it is precisely

that kind of principle that led the United States

Supreme Court to adopt the principle that was

adopted in New York Times v Sullivan and stated by

Justice Brennan in Dun v Bradstreet in the manner

we have set out at the top of our last document,

"Value of Claims and Opinions Later Found to be

Mistaken". We would submit that it is this

principle which we say gives effect to the decision

of this Court in Australian Capital Television and

Nationwide News that the limitation shields all who

speak in good faith from the threat of unrestrained

libel judgments for unintentionally false criticism

of a public official. We say in this context it

relates to a federal parliamentarian or an elected

representative.

McHUGH J:  But why should good faith be the test? Why

should the blundering but honest incompetent be

allowed to publish false and defamatory material?

How is the public interest served by that?

MR MERKEL: Because, Your Honour, the role then becomes of

the courts to perform the very task Justice Brennan

put to me earlier, and that is to find and seek out	the political truth or the competence of those who
express the view. We say that to be meaningful,
the protection must protect, as Justice Jacobs put
it, the expert and the inexpert, the competent and the incompetent.

McHUGH J:  But why? Why would a better test not be a

functional test as to whether or not the person

concerned had taken all the proper steps to

investigate the material rather than making good

faith the test?

MR MERKEL:  Your Honour, reasonable care started to creep in

in the United States when one got to the question

Theophanous 32 14/9/93

of defamation of private persons in respect of a

matter of public interest, but it has always been

disavowed in respect of the protection for public

officials because of the higher and more important

consideration that the process that Your Honour has

put, in the real world, will operate to impede the

free debate and the free speech which, we would

submit, is a requirement of democratic

representative government.

The minute one has to start imposing a duty of

care, which qualified privilege itself does not

impose, one seems to be putting a higher burden in this area than the common law would put in respect of occasions of qualified privilege.

McHUGH J:  No, because the common law doctrine requires

reciprocity of interest and that means that the air

of publication is confined. But you want a right

to publish to the world at large, with no other

criterion than an onus being on the plaintiff to

negative your good faith.

MR MERKEL: Well, Your Honour, I think when His Honour was

talking of good faith, His Honour was talking in

terms that meant that the person had an honest

belief in what he was saying as a sufficient and

satisfactory test. That where you had no such

honest belief or were recklessly careless as to

whether the facts were true or not, or the

criticism was warranted or not, you did not

qualify.

Now, what we have set out here, I suppose, are the answers to Your Honour's two questions to me,

that there are a variety of reasons why the courts

have disavowed any objective standard, because it

really then denudes the guarantee of its operative

effect; it can only have a chilling effect or the

lack of the breathing space that the cases - - -

McHUGH J: But the chilling effect is only on those who hold

property. In my experience, there is no chilling

effect on those who do not hold property.

MR MERKEL:  I think I can understand the force of what

Your Honour puts, but those who do not hold

property only can make their voice felt through

those who do, and the chilling effect really is at

its probably clearest in the context of the very

concern we have in the present case: a letter to

the editor published by the President of the

State RSL, seeking to participate in the debate on

the suitability for office of the chairman of the

particular committee, and he can only do so through

letters to the editor. It is the primary vehicle

through which the protection to the electors is

Theophanous 33 14/9/93

given to communicate and we would say that it is a

good example of the problem of care.

It is a republication of someone else's views,

without the paper expressing any view of itself or
its own, concerning the matter, and the chilling
effect is probably seen in its most forceful

operation. A paper then rules the risk of

fettering that speech and fettering the electors,

or the ability to communicate of the person
publishing the letter. It is a clear example of

the impairment of the capacity which

Justice Brennan talked of in Nationwide News.

McHUGH J: But what is the social purpose which is served by

putting out false and defamatory statements of

fact, even in respect of politicians?

MR MERKEL:  Your Honour, intentionally false statements,

none; unintentionally false statements,

Your Honour, we say that it is only later that it

is found to be false or not and it runs into all of
the problems and barriers that the Supreme Court

has struggled with in the United States in the New

York Times v Sullivan situation and its subsequent

extensions. The further even those courts moved

away from the core protection, the greater the

inclination to superimpose an additional standard

such as a duty of care. But at the core of the

protection, the suitability for office of

candidates for election, the criticism of

government and those responsible for it, we say

that once one enters into the area of having to

have truth or falsity as a test, one has

effectively denuded the protection.

One example of it, Your Honour, is that if

nothing else was clear, this Court in the two cases

established a special constitutional position of

this kind of criticism. It would be anomalous in

the extreme for the common law of defamation to

apply equally to the private as to the public
situation.	We say that the very purpose of giving

the guarantee requires these protections.

DAWSON J: Why do you say that? It seems to me that you are

in the area of what is desirable, not what is

necessary.	You are, after all, talking about an
implication, a necessary implication.	No one has

suggested with the present laws .of defamation that

representative democracy is not present in this

country.

MR MERKEL:  With respect, Your Honour, the very principles

underlying the approach of the courts would suggest

otherwise.

Theophanous 34 14/9/93

DAWSON J:  I did not understand anyone to have said it was

not a matter of implication, and implications must

be necessary implications.

MR MERKEL:  But, Your Honour, the implication has been drawn

by the Court. The question, we say, that is raised

in this case is how it is to operate in respect

of - - -

DAWSON J: That is what I am saying. You seem to be in the

area of argument directed to what is desirable

according to a particular viewpoint, not what is

necessary.

MR MERKEL:  We put it the other way round, with respect,

Your Honour. We say that under federal law there

was no fetter or limitation on this publication.

There is only a fetter or limitation under State

law.	We say the burden is not on us to establish
in effect that the fetter was unreasonable.	We say
that the principles established in the two

decisions were that the fetter was to be no more

than reasonably necessary to serve the legitimate

countervailing purpose.

Our argument is addressed to why the fetters

imposed under the present law of defamation go

further than is necessary, or however one puts the

test, do not provide compelling justification to

fetter this category of speech. It is in that

context that we say it is singularly inappropriate
for the common law and special statutory provisions

that are intended to cover the field of defamation

law to be treated as covering the field of

political and electoral comment which we are

concerned with in the present case.

We say that a different question arises under

the Constitution and we say it is not a question
that the law has addressed. I took Your Honours to

the example of Calwell's case to show how in a very

different jurisdictions. What we have sought to do real sense it will produce different results in in the -

DAWSON J: But it comes down to this: you are really saying

that it is a necessary part of parliamentary

democracy that you should, for instance, be able to

say untruthful things about politicians with

impugnity.

MR MERKEL: 

Your Honour, we say it is not a necessary part

to say deliberately untruthful things or to be
recklessly careless or indifferent to the truth or

otherwise of what you say. But we do say it is an

inherent part of protecting representative
parliamentary democracy in this country that you

Theophanous 35 14/9/93

not be impeded in putting forward claims and
opinions which may later be found to be mistaken,

even though you honestly believe them at the time. We say it is inherent in the nature of the debate.

DAWSON J: But representative democracy seems to have

functioned fairly well in that situation, for how

many years?

MR MERKEL: Well, Your Honour, that, no doubt, will vary from person to person - the view in that regard will vary from time to time, from person to person,

but the same argument - - -

DAWSON J: Exactly, and that is why it is not a matter of

necessary·implication, it is a matter of where you

think the desirable line is.

MR MERKEL:  But we would submit, Your Honour, that it works

the other way. We say that the question is: is

the fetter imposed justified on compelling grounds?

We say it is not, because it denudes the protection

which the limitation is to give. Your Honour, the

same question confronted the US Supreme Court in

New York Times Co v Sullivan. American democracy

has flourished and has suffered from time to time,
but the reasoning of the court in that case, we
say, produces the conclusion that we seek in the
present case and it is no less applicable to our

circumstances. It took - - -

DAWSON J:  So that you would say that there is no

distinction, for your purposes, between the First

Amendment and the implied freedom of speech which

applies in the Australian Constitution.

MR MERKEL:  No, there is a very significant difference,

Your Honour. The First Amendment protects freedom

of speech in general terms and has had an operation

far wider than that which we are contending for in

respect of implied limitation. Implied limitation

and its source is the protection, in this sense, of

representative parliamentary democracy. It is a

much narrower base from which it stems and

therefore it has a much narrower operation.

DAWSON J: Can I reframe the question: you would see no

difference in the breadth of the implication and

the First Amendment in so far as it relates to

political affairs?

MR MERKEL:  In so far as it relates to political affairs,

Your Honour, we say it should have the

New York Times v Sullivan operation, but in

relation to comment concerning those responsible

for the conduct of political affairs.

Theophanous 36 14/9/93

This case does not raise a question about the

width of the protection in a manner that does not

deal with the conduct of those responsible for

political affairs. It is in that narrow core area

and those responsible in this sense are very much

those charged with the legislative function or

powers of the Commonwealth. It is in that narrow

area that this case raises the issue. It is not in

any wider area. So the First Amendment and its

operation raise a different question.

May I say this, Your Honour, this Court has

already held that in the area of political affairs there is a protection similar to that of the First

Amendment, that a law cannot limit the discussion

subject to any countervailing consideration or

other legitimate interest, which is, in effect,

very much akin to the First Amendment protection in

that narrow area. The First Amendment protection

is far wider. But, we say our path is not through

the First or the Fourteenth Amendment -

DAWSON J: Now that is a little wide, is it? It is to the

extent that it is inconsistent with the
representative democracy which the Constitution

guarantees.

MR MERKEL:  Yes, Your Honour, but this Court in the two

cases indicated that the breadth of the protection

did not have the rider that in every case the

protected speech had to be demonstrated to be

necessary for the representative democracy. This

Court considered the subject-matter of the guarantee and with different results. But in

substance, it covered the broad ground of political

and government comment and criticism, and any
impediment or hindrance under federal law that

would fetter that had to be justified on compelling

grounds. No one suggested in the United States or

here that the protection is absolute, but the

subject-matter was defined and was considered at

length by Your Honours in the two cases and it was

not limited in the sense that it had to show that

the comment was supportive of representative

democracy. It was a broader ground that the nature

of this comment and its freedom requires it.

DAWSON J:  It cannot be ..... something like public order, the

proper ordering of society and so on as it may be

in the United States. It must be brought back to

representative democracy, because that is the basis

of the implication.

MR MERKEL: That is so, Your Honour, and that is why we have

confined our submissions concerning criticism or,

as we put it and as Your Honours Justices Deane and

Toohey put it in Nationwide, criticism which may

Theophanous 37 14/9/93

later be found to be mistaken, and we say that the

document I would wish to take Your Honours to, show

the kind of problems thrown up between courts

trying to, in this context, in the area of

political and government discourse, draw lines

between the truth and falsity of comment,

statements of fact and statements of opinion. We

say that it is the inability to draw the clear line

that requires the breathing space test that the

American courts have adopted.

Really, what I had in mind is to take

Your Honours to some of these passages that they

show, particularly by reference to different

categories, why any lesser test or a different test

is one that is fraught with difficulty. But I

should say that this is our primary position, that

the limitation protects an intentionally false

criticism of an elected officer, but our fall-back

position is that if that be wrong, then we say for

the same reasons that the defence of malice is

available to qualified privilege, the same defence

should be available in this context, or the third

fall-back position is that the publication will not

be actionable if it was reasonable in all the

circumstances which is, in effect, the public good

situation.

What we are, in essence, saying is that the

reasoning of the court was such that the occasion
of these publications should be protected as being
in the public interest, absent malice, absent
dishonesty of the kind we have talked about. There
is not just the absolute standard that we are

putting forward; there are a number of different

ways or levels at which it can be approached. But

we say that it cannot be right that false criticism

will always be actionable because the law of

qualified privileges has always accepted that false

criticism can be for the public good and the public

welfare, in given circumstances. But ultimately,	we say those circumstances and that criterion, is	indistinguishable from the criterion established in
Nationwide News and Australian Capital Television.

But can I take Your Honours to the document we

have handed up. The first category of examples

that we give, initially from the American

jurisprudence but also accepted as operative in

Canada, really is on the simple proposition that,

in this area of discourse, what is true and what is

false has no clear line of demarcation and the

underlying principle -

McHUGH J: Those statements are really about matters of

opinion, are they not, and about policies? Free

trade is better than protection, whatever the case

Theophanous 38 14/9/93

may be. But what about defamatory facts about an

individual politician?

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

is a claim, and what is an opinion in this area of

discourse is not so easily divided but,

Your Honour, if a statement of fact is believed to

be true and is logically and in a bona fide way

related to the criticism, or claim, or opinion

expressed then, Your Honour, we say it is not able

to be disentangled on the basis upon which

opinions, or claims, are to be made and we say that

it is for that reason that one gets into a

protection for this area of political debate. The

way it was put, commenting on the John Stuart Mill

quotation, in the Supreme Court of Canada, by

Justice L'Heureux-Dube - and this is at the bottom

of the first page, Your Honour - is, after she

referred to the John Stuart Mill quotation, she

said:

The argument is appealing in that it

acknowledges that one generation's truth is

another generation's fallacy - and there is an

underlying optimism in the evolution of ideas.

However, especially in the realm of political debate, it is the idea itself that must be
encouraged, regardless of its apparent

veracity.

And, we would add, regardless of whether in fact at

the time it is made, it may be based on a factual

misconception because it is not possible to

disentangle the idea and the facts on which it is

based.

McHUGH J: But, what is the remedy? I mean I know in the

American cases Justice Brandeis and people say,

"Well, the answer is more speech," but that seems

to assume that truth will always triumph. Maybe it

will in the long run but, as Cain said, "In the

long run, we are all dead," and history

demonstrates that falsity, or false statement, can

hold the ground over long periods, lengthy periods.

MR MERKEL: Well, Your Honour, the reason why, I suppose,

qualified privilege is given protection to false

statements, and the public good is given protection
to false statements, and the US Supreme Court has

likewise in this area of discourse given protection

to false statements, is that the price of

permitting the falsity is worthwhile because it is

only by that price that one can get, in this area

of discourse, to the truth. If the Court sets

parameters on the debate based upon what is true

and false: the impediment, the chilling effect, the

fetter on free speech, leaves society the worse off

Theophanous 39 14/9/93

and, in this area of political discourse, for

reasons I went in earlier, we say that there is
necessarily an element that falsity will creep in

and be protected. But, that is not the rationale,

Your Honour.

The debate about falsity is, in effect, the

downside of the higher values sought to be

protected by encouraging a free debate. It is

only, in effect, at the margin that the false

speeches protect them. It is not intended to

protect false speech, it is just a necessary

consequence of a free and wholesome political

debate, to enable people to form the judgments that

are necessary in a representative democracy.

It focuses on falsity, Your Honour. It seems

to direct the focus away from what the protection

is really designed to achieve.

McHUGH J: This is a convenient point to reiterate the

question I asked earlier. What is it about the

political sphere which distinguishes it from other

spheres? Why is it right to penalize false

statements in other contexts, but not in the

political spheres?

MR MERKEL:  Because, Your Honour, the debate that is

encouraged, required and protected in the political

sphere is that which the Court found is necessary

to enable both the opportunity to form political

judgments and the capacity to form political

judgments in a representative democracy to be

realized. That is the difference, Your Honour. It

is because it is at the core of that issue that
this protection needs a special basis and should
not have applied to it the general principles that

operate in the private sphere because there is not

the higher constitutional value sought to be

achieved. Freedom of speech itself has its value

and necessity in life, but that gives way more

the constitutional sphere. It is really that that	readily to countervailing interests in repute than	lies at the essence of the protection, and what
this document seeks to do is to -

DAWSON J:  Mr Merkel, I am having a little difficulty in

following. Why is it not a necessary concomitant

of parliamentary democracy that you have a right to

protect your reputation against false accusations,

it being your reputation which will govern whether

you are elected or not?

MR MERKEL:  Your Honour, there is a right to protect it, but

it is no greater or less than the right that

operates on an occasion of qualified privilege.	No
one is seeking to denude any politician of a right

Theophanous 40 14/9/93

to repute. We accept at the outset that a decent

and ordered society requires protection to private

reputation, but that protection gives way to the

public interest or the public good in the same way

as other occasions of qualified privilege have

forced that right of repute to give way to

authorized false comment, subject to the absence of

malice.	We have no difficulty with that kind of
criterion.	We put a gloss on it in this context

for reasons we have developed or wish to develop.

But we say that we do not in any way deny that

value, Your Honour. We give effect to it, but in a

modified way as the law of qualified privilege has.

The first set of quotations deal with this

problem of absolute truth and falsity. The second

category which we deal with at page 2 is hopefully
the answer I would wish to give to Your Honour

Justice McHugh. The protection is not to authorize

false speech. It is an inevitable consequence that

some erroneous statement will emerge in the debate,

but the problem with it is that it restricts - if

prohibited, it results in an unacceptable chilling

effect on false and factual speech and, indeed, the

Derbyshire Council case is a good example of it.

BRENNAN J:  Why "unacceptable chilling"? Why is it that the

risk of unjustified destruction of a reputation

should not be borne by the party who destroys the

reputation rather than by the party whose

reputation is destroyed?

MR MERKEL:  I can only give the same answer to Your Honour

as I gave Justice Dawson, that the issue before the
Court is whether the circumstances which gave rise

to the constitutional protection ultimately of
themselves warrant those occasions as occasions

where, for the public good or the public welfare,

the qualified privilege criterion or situation

should prevail. It is really no different a

process of reasoning.	We say that it is a defence
arising directly under the Constitution, because in

those cases Your Honours ascribed a particular

importance and value to political speech or

electoral speech.

We say it is in that situation where the

elected candidate accepts the consequence that he

or she will be thrown into the robust public arena

which of necessity will have right-headed and

wrong-headed criticism, facts honestly and

dishonestly believed. It is in the dishonest

belief that they should not have to subject

themselves, but that is saying no more than the

public good, for the reasons Your Honours developed

the principle, warrants that protection.	A very
important underlying factor is - - -

Theophanous 41 14/9/93

BRENNAN J:  The whole problem is that, if I understand what

the Court said in those cases, it warrants a

qualified protection, qualified by reference to

other legitimate interests which the law may

protect. It does not really advance the argument

to say that what the Court has said in those cases

places great emphasis on the freedom of political
discussion when the question is: is the freedom of

political discussion unjustifiably limited by the

laws relating to defamation?

MR MERKEL:  Yes, Your Honour. We ourselves would prefer to

say: are the limits imposed by the laws of

justification justified compellingly or justified

on compelling grounds? We would give Your Honour

the example of the public good versus the qualified
privilege or the way in which justification and

public interest work in reality to say the

differing tests and criteria resulting in the same

publication concerning federal electoral matters

having the propensity or capacity to result in

legality in one jurisdiction and illegality in

another really highlight the difficulty that is

thrown up under the present fragmented system.

But at the end of the day, what we say,

Your Honour, is that the reasons set out in this

document are reasons put forward by the courts for

saying that some degree of falsity is inevitable
because it is only by protecting that degree of

falsehood that one in effect can protect the speech

that Your Honour has said matters. It is true that

Your Honours did not say in the decision that false

speech is a speech that should or must be

protected, but Their Honours Justices Deane and

Toohey did broach the problem in saying that speech

later found to be mistaken must in itself of

necessity be subject to the protection, otherwise

you start to denude it of its operation. What we

have said here is that there are a number of policy

reasons, for example - they are set out at page 2 -

citing New York Times, where Their Honours said:	that the last of them in Gertz which is referred to	"Some abuse of the First Amendment freedoms is
tolerated only to insure that would-be
commentators on events of public or general
interest are not 'deterred from voicing their
criticism, even though it is believed to be true and even though it is in fact true,
because of doubt whether it can be proved in
court or fear of the expense of having to do
so I • II
The "chilling effect" and the "limiting

effect", in our submission, is a very real

impediment to freedom of debate in this area of

Theophanous 42 14/9/93

discourse. One can see it arising. There is a

more recent decision, if I can just give

Your Honours the reference, it is not on our list

of authorities, of Brown v Hartlage, 456 US 45,

where the court had to consider, in the context of

a political campaign, a situation where there was a

principle that one would not wish to risk the

statement being untrue even though the person

believed it to be true, as operating as an

impediment. It is a very real situation. This

situation involving Mr Ruxton and Dr Theophanous is

a prime example of it. It is in an electoral

context. It is comment concerning his suitability

for office, and it is comment, in effect, between

electors through the letter to the editor column of

a major newspaper.

Clearly, one can see that there is a burden running the risk in defamation law of precisely

what occurred in the present case. That must act

as a fetter. We say that in this area of

discourse, it is just not easy to disentangle,

certainly in the minds of those who wish to speak,

the fact and opinion dichotomy that exists in this

area of the law. We say that in the passages at

pages 2 to 3, we have set out passages in the reasons which we say should not have one focus on

authorizing false speech as if it is the prime

object. It is not. It is to fully authorize and

encourage political debate that some degree of

unintentional falsity must be tolerated. That is

how we put it.

There is a third policy factor, and that is

that at page 3 where we say that false statements

are valuable because they enhance the perception

and facilitate the ascertainment of truth. Accept

what Your Honour Justice McHugh said, that

sometimes falsity may reside for a long time, but

what is again set out in the American jurisprudence

that falsity does itself have a constructive role	as justifying the New York Times v Sullivan test is	in drawing out and fleshing out the area of debate
to produce the ascertainment of truth.

McHUGH J: But again, that assumes that truth will triumph,

and the Australian experience is that the

allegation is given greater emphasis than the

denial.

MR MERKEL: With respect, Your Honours, I suppose for

newspaper proprietors one takes a different view -
or puts forward a very different view. But we

would say that the political process would not

produce that pessimism, Your Honour.

Theophanous 43 14/9/93

McHUGH J:  A great illustration was in the New South Wales

press last week, a parliamentarian made allegations

about the Ombudsman. It got the headlines, it got

the bulk of the story and the detailed denial from

the Ombudsman is tucked away at the end of the

story.

MR MERKEL:  Your Honour, if the criticism was made under the

parliamentary privilege we have spoken of, maybe

the Ombudsman's denial was one that was fettered by

the law of defamation. We would say that

Your Honours pessimism about the truth triumphing through this political debate is more warranted in

an area where the debate is fettered than where it

is relatively unfettered.

McHUGH J:  The difficulty about all this argument, it seems

to me, is that the argument in favour of free

speech is starting from a wrong premise. You are

seeking to differentiate between debate about

politicians and other types of debate. The

argument in respect of free speech seems to me not

to depend upon that sort of distinction but to

depend upon rights that attach to the speaker

generally: rights to express him or herself,

rights of personhood, and so on.

MR MERKEL:  Your Honour is right that it must start with the

right to free speech which everyone has, including

the newspaper proprietors, but then the question we

focus on is the fetter imposed on that right under

State law. We really draw very much on what

Your Honour said in the Australian Capital

Television case, because Your Honour focused the

protection very much on the need for free and

uninhibited criticism of candidates for election

and in the electoral context where, in effect,

Your Honour said, there is a general right.

Now, we say that we have focused upon it, not because it is the outer limit of the right, but it

is for two reasons: one it is the basis of the

right asserted in the present case, therefore it is

directly raised; and secondly we say, as we have

put, it is at the core of the protection given by

the two cases. If that right is to be impeded,

then certainly impediment, more at the fringe of
the protection, is much more difficult to override.

But we do say, with respect, that it is at that

core that one has to confront the issue and these

principles that we say we have set out in this

document, do afford a justification for the need to

protect some mistaken claims, unintentional ones as

they may be.

We have put further reasons at page 4. have set out the absence of moral culpability in We

Theophanous 44 14/9/93

the test we have put forward in respect of

statements made innocently and in good faith.	The
fifth is the more general problem that public debate will necessarily have speech that is
offensive and repugnant to individuals.	We would

say that the principle was stated, albeit in a

higher form by Justice Black in the New York Times

Co v Sullivan, 376 US 254 - if I can just take

Your Honours to a very brief passage of

His Honour's judgment. Justice Black was one of

the absolutists in respect of the protection.	He
did not go for the half-way house of
Justice Brennan.	The passage of Justice Black is
at page 297.

I will not take Your Honours to the detailed

reasoning of Justice Brennan's judgment in New York

Times v Sullivan, but we do rely on the entirety of

His Honour's reasoning as developed in subsequent

decisions for the standard that we say should apply

in the present case. But what Justice Black said

at page 297 we say applies. His Honour at the

bottom of page 296 was discussing the:

freedom to discuss public affairs and public

officials is unquestionably, as the Court today holds, the kind of speech the First

Amendment was primarily designed to keep within the area of free discussion.

If we can just interpolate there, we would say that

is the underlying principle of the two decisions of

this Court.

To punish the exercise of this right to discuss public affairs or to penalize it

through libel judgments is to abridge or shut

libel suits based on public

off discussion of the very kind most needed. without

discussions of public affairs and public

officials. But I doubt that a country can

live in freedom where its people can be made

to suffer physically or financially for

criticizing their government, its actions, or

its officials. "For a representative

democracy ceases to exist the moment that the
public functionaries are by any means absolved

from their responsibility to their

constituents; and this happens whenever the constituent can be restrained in any manner

from speaking, writing, or publishing his

opinions upon any public measure, or upon the

conduct of those who may advise or execute

it."

Theophanous 45 14/9/93

Then His Honour goes on about the unconditional

right.

Now, we do not put it at that high level, but

we say that the criticism of public officials and

the factors and policy considerations that

His Honour was there referring to, were not

distinguishable from those that underlay this

Court's approach to the limitation under the

Constitution in respect of that area of debate.

McHUGH J:  Mr Justice Blackett talks about criticizing

governments, and in the United Statesd the view is

taken that there can be no offence of seditious

libel because of the First Amendment. What do you

say about ·seditious libel in this country? Can you

be prosecuted for seditious libel for attacking

governments?

MR MERKEL:  Your Honour, we do not say that the laws as they

presently apply to sedition may necessarily have

abridged the protection, but it may depend upon the way in which those laws are sought to be applied to

a particular situation. If they started to impinge

upon the kind of debate which the Court protected, then the answer would be yes, Your Honour. It was

really in Abram's case which dealt with such laws

that, I think, Justice Holmes' dissent which has

eventually been picked up in the American

jurisprudence, was expressed. We say that is an

area, Your Honour, we say could be prone to misuse. In fact, Hector's case is an example of what

Your Honour puts. It rendered as a criminal

offence false criticism which impaired public
confidence in the government, and Their Lordships

said that that was an unacceptable impediment to

free speech. So the answer depends upon the

definition of "sedition" and how it operates in a

given situation.

We have set out in our outlines of argument

detailed reference to United States cases and I do

not wish to take Your Honours to them. We have set

out the reasoning which we rely upon to support our

submissions. I should speak briefly about the

Canadian decisions which we have referred to at

pages 24 to 29 of our written outline.

The Canadian courts, particularly in the two

decisions I have taken Your Honours to in the

Committee of Canada and the Dolphin case, have

given full constitutional and operative effect on a

real basis to the guarantee and, to the extent it

was necessary in the Committee of Canada case to

impair the government's common law rights to the

extent they infringe the guarantee, the court was

Theophanous 46 14/9/93

ready to do so. The reason why this issue has not

arisen in the Canadian jurisprudence is because

section 32 operate to limit the protections or

rights conferred under the charter to rights as

between citizen and government, and that ls held to

be expressly so in the Dolphin case and, as a

result, the question of the operation of a

guarantee as between citizens, or in private
litigation, just does not arise because the

Canadian charter has been held not to operate in any matter other than between citizen and State.

Likewise, the European convention really,

itself, similarly gives rise to litigation between

citizen and the State and, therefore, the question

arising in this case has not arisen in that

jurisprudence either. But, we do say that the

principles that we have cited from the Canadian and

the European cases are very strongly supportive of

the principle we are ultimately contending for.

In that context, I can take Your Honours to

the case stated and the questions that we say arise

under the constitutional defence. The questions

are set out at page 7, as amended by Your Honour

the Chief Justice's leave this morning. We would

submit, dealing with the question in the amended

form, that there is a freedom guaranteed in the

manner set out in paragraphs l(a), (b) and (c) of

the amended questions. In paragraph 2:

If yes ..... is any such freedom subject to a

condition that -

the publication will not be actionable under the

law relating to defamation. We have set out four

different criterion, the first at paragraph (c),

which is that which we have contended for: the publication not be made without any honest

belief in the truth of the material published

that is the way in which we put our case primarily. or made with reckless disregard for the truth or untruth of the material published -

That is very much a New York Times Co v Sullivan

test and we remind Your Honours that those

principles were accepted by Their Lordships in

Derbyshire. The second, or alternative, way is

that the publication be without malice, which is a

broader test and which, we would say, adopts the

test of malice as a defence in defamation law

currently existing. The difference between the two

is the difficulty in determining what is the

ulterior motive in the political arena.

Theophanous 47 14/9/93

We say that the question of motive being as

various and diverse of political opinions

themselves, it is appropriate that the test be

adopted as in paragraph (c), but we readily accept

a fall-back position that malice is accepted by the

common law is an alternative basis, and an

alternative reasonable basis, for which the

protection operates. It does, with respect, meet

the concerns that Your Honours Justice Brennan and Justice Dawson put to me about the extent to which

the law of defamation might be intruded upon by the

guarantee, because that intrusion is no more than

that which already exists in the public good or

reasonable in all the circumstances situation.

The third basis is that the publication be

reasonable in the circumstances which picks up the
current New South Wales statutory defence and the

matter is discussed by Your Honour Justice McHugh

in the article I took Your Honours to, and we say

that that itself affords a complete answer to why
it is justified if the publication be reasonable in
the circumstances, given the basis of the
constitutional guarantee, that enables the Court to

have regard to the very countervailing

considerations that Your Honours Justice Brennan

and Justice Dawson put to me about private repute:

was it reasonable that the impairment to private
repute was justified by the existence of the

protection for that category of speech?

We put, fourthly, that there might be a

different situation prevailing when an election is due to be called or has been called, although that

is a final fallback which we do not advocate

because this Court disavowed any clear line of

demarkation between an electoral and a non-

electoral context as such because suitability for

office continues throughout the period of office,

and suitability for re-election is an issue, and a

relevant issue, both before and during an election.

But, we draw comfort from the fact that the

publication was in an election context, and we say that adds force to the kind of protections that we seek.

They are the submissions that we wish to put

on the question of a constitutional defence.

TOOHEY J: Can I just ask you this, Mr Merkel? In relation

to the questions that are reserved for

consideration, as amended, is the Court invited to find a constitutional guarantee in respect of each

of paragraphs (a), (b) and (c), or are we to regard

A as perhaps subsuming (b) and (c), and what is the

relationship between (b) and (c)?

Theophanous	48	14/9/93
MR MERKEL:	Your Honour, we have put it at three levels.	I

think it is correct to say, Your Honour, that if
the protection is in respect of (a) it necessarily
subsumes (b) and (c) but we can see, particularly
having regard to the context in which this issue

arises, that the law of defamation focusing upon

individual repute may itself draw focus upon (b)

and (c) as the area where protection may be given,

rather than (a). We do not seek any division, as

such, but we recognize that given the

subject-matter and context of the present case,

that one may readily argue that because if the

criticism is directed at members concerning their

performance or in relation to their suitability for

office, we say that that as a category of itself,

should afford the constitutional protection.

TOOHEY J: But, putting your case at its highest, are you

inviting us to find a guarantee in terms of

paragraph (a) on the understanding that that would

embrace both paragraphs (b) and (c).

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

could succeed, particularly in view of the way in

which the questions are asked, "If yes to any part

of question l", then we get to our condition of the

defence. We rely on each, but we accept what

Your Honour puts, and we do put it that (a)

certainly subsumes (b) and (c).

BRENNAN J:  Mr Merkel, the cases on which you rely, the

Nationwide case, and the ACT Television case, were both cases which dealt with the exercise of

legislative power, and the Court's concern was

whether there was an implication to be drawn from

the Constitution which limited the exercise of such

power. Your argument in this case must go further,

must it not, and say that the Constitution by its

own force altered the common law relating to

defamation, so that what was unlawful by the common law became lawful in order to permit representative

democracy to take place?

MR MERKEL: That is the argument, Your Honour, in so far as

it impinges upon the common law. But we say, with

respect, Your Honour, that there are steps towards

it, and there is an intermediate step which we also

go to. That is why at the outset I took

Your Honours to the three levels at which the
impediment can arise. There is no impediment under

Commonwealth law. There is impediment, as we put

our argument, under State law and we took

Your Honours - - -

BRENNAN J: That is assuming the common law is State law.

Theophanous 49 14/9/93

MR MERKEL:	I am sorry, Your Honour. There are impediments imposed under State legislation and common law. If
I can take the example, Your Honour, of the Code by reason of justification, for example, in New
South Wales - - -
BRENNAN J:	No, it arises by reason of the making unlawful

of the publication of defamatory matter.

MR MERKEL:  But where the Code States operate, Your Honour,

because that is rendered unlawful by statute.

BRENNAN J: That is right.

MR MERKEL:	In that situation it is the statute that infringes the guarantee. But in so far as the
matter has not been abrogated or dealt with by
statute, that is the law of defamation, then we say
we go to the Constitution modifying the common law.
At that level we say what Your Honour puts to us is
correct.
BRENNAN J:	So the common law has been altered since 1901.
MR MERKEL:	Yes, Your Honour, and it is for that reason I

took Your Honours firstly to Leeth which accepted

the notion of a unitary system with differing views on the operation of the Commonwealth legislation in

that case, but no differing views that the equality

guaranteed arises under the Constitution in so far

as there are implications to be drawn from it.

I also took Your Honours to Breavington and to

Ansett and Justice Murphy in Metwally to indicate

that there has developed very authoritative

statements in this Court the notion that as from

1901, there was a new system of law in Australia as

a result of the Constitution. When one goes to

covering clause 5, its operation must be that in so

far as the Constitution with its implied

limitations on federal and State law operate in the

community, it operates as between the States, the
courts and the people.

It is significant that the word "people" appears in covering clause 5, so that the

limitations and powers and modifications bind all

within the Commonwealth and one does not get into
the argument that has occurred in Canada as against
the United States in the Fourteenth Amendment which

has been the vehicle by which the First Amendment

has been carried through to confer rights and

obligations and inhibit States, the word "State"

has embraced the judiciary.

Theophanous 50 14/9/93

The Canadian Court has not accepted that the

State in section, I think it is 32, would embrace

the judiciary and therefore in that way the Charter

in the Bill of Rights in the United States have

taken a different course. But covering clause 5 in

its context does say that the Constitution is

binding on the States, courts and people, and to

that extent, Your Honour, we say, as is identified

by various of Your Honours in the judgments we took Your Honours to, that does necessarily operate as a

modification of the common law, and I think it is
assumed to do so in section 79 or section 80 of the

Judiciary Act, which talks about the Constitution

modifying the common law. But we would, with

respect, adopt what Your Honours have said. It was

put very succinctly by Justice Murphy in

Ansett and Metwally, that that must be so.

McHUGH J: Is your argument inconsistent with

Sir Owen Dixon's thesis, that the common law is the

ultimate constitutional foundation?

MR MERKEL:  No, Your Honour, because we say that the common

law was the ultimate constitutional foundation, but
the Constitution itself, interpreted in accordance

with that foundation, has given rise to

consequences which can, and have to that extent,

modified the common law. The point made, as I

understood it, by Justice Deane in Breavington is

that there was a new system of law as from 1901,
governed by the Constitution and, for example,
colonial prerogative because State prerogative,
federal power was limited as was State power by the

Constitution and that prerogative power of being a

common law power was likewise limited, and there is

what has been referred to as the common law of the rise to the foundation of the Constitution, and it

is that common law that we are putting forward in

the present case which, of itself, must modify the

common law that preceded it.

That is all we wish to say on the

constitutional defence. The other matter that

arises on our case stated is whether there is a

defence of qualified privilege. That issue arises

if the constitutional defence fails.

That is the defence that arises at

paragraph 12 of the defence which appears at
page 12, and it is the issue raised in the

questions under paragraph 3, and it arises under
paragraph 3 in the sense that if there is a

guarantee of the kind in paragraph 1, does that

give rise to the publication as being a publication

on an occasion of qualified privilege. Again, we

have raised the two situations about an electoral

Theophanous 51 14/9/93

context and a non-electoral context, which may be

relevant in this context.

I should indicate that this question only

arises if the constitutional guarantee does not

give rise to a constitutional defence, and we say

that if it does not - of course, the reasoning why

it does not would be critically relevant to whether

there is, or is not, a qualified privilege. We

would submit at the outset that the constitutional

guarantee does arise in the terms set out in
paragraph 1, and the Canadian Supreme Court in

Dolphin's case did consider the very issue of the extent to which the charter would modify the common

law. If I could take Your Honours -

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

at 2.15.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

MASON CJ: Yes, Mr Merkel.

MR MERKEL:  If the Court pleases, there is just one minor

matter I seek to mention to Your Honours. In the

document that I handed up on The Value of Claims

and Opinions Later Found to be Mistaken, on page 2

at paragraph 2.2 there was a reference from New

York Times v Sullivan, and unfortunately the

passage stopped just before the sentence that I was

shown over lunch which may answer some of the

matters Your Honour Justice McHugh put to me

because the passage goes on to say at page 279 that

people -

tend to make only statements which "steer far

wider of the unlawful zone".	The rule thus
dampens the vigor and limits	the variety of
public debate.

The point we wanted to make, and we hope we had

made to Your Honour this morning, was the problem

about the inhibition is not that it just prevents

false speech, but it also intrudes upon the

boundary of speech that would be lawful because of

the fetter that the rule of libel law imposes on

the makers of such speech.

McHUGH J:  I think anybody who has had experience advising

newspapers is well aware of the chilling effect the

law of defamation has.

Theophanous 52 14/9/93

MR MERKEL:	Yes, Your Honour, and, of course, moving to the question of qualified privilege, when one goes to
examine the publication in the present case and the
fact that it was actionable in the way it has been,
only makes the point again of the difficulty
between drawing the line between fact and opinion,
particularly in this area, and who is to form the
judgment and in what circumstances.
But, could I move to the question of qualified privilege. At the adjournment I was going to take
Your Honours to the decision of the Canadian
Supreme Court in Retail, Wholesale and Department
Store Union v Dolphin Delivery, 33 DLR (4th) 174.
In that case, Their Honours had to consider the
effect of the charter and its right to freedom of
expression upon the tort of procuring breach of
contract, and this arose in an industrial labour
dispute situation where there was picketing, and one of the issues was whether the charter operated
in respect of private litigation between the
parties and at page 194 to page 195,
Justice McIntyre set out section 32 of the charter
and concluded that, at 195 point 2:

Section 32 of the Charter specifies the actors to whom the Charter will apply.	They
are the legislative, executive and administrative branches of government.

So, as a result, the issue that now arises would

not arise in Canada under the charter. But,

His Honour Justice McIntyre, with whom other

members of the court agreed, discussed the role of

the charter concerning the common law at page 198

at point 3, and it is this comment that we say is

of significance in the area of qualified privilege.

What His Honour said is:

Where, however, private party "A: sues private

party"B" relying on the common law and where

no act of government is relied upon to support

the action, the Charter will not apply. I

should make it clear, however, that this is a

distinct issue from the question whether the

judiciary ought to apply and develop the

principles of the common law in a manner
consistent with the fundamental values
enshrined in the Constitution. The answer to
this question must be in the affirmative. In

this sense, then, the Charter is far from

irrelevant to private litigants whose disputes

fall to be decided at common law. But this is

different from the proposition that one
private party owes a constitutional duty to

another, which proposition underlies the purported assertion of Charter causes of

Theophanous 53 14/9/93

action or Charter defences between

individuals.

We would submit that that proposition applies

if the constitutional defence fails, but we say

that the very basis and reason for the existence of
the constitutional limitation falls fairly and

squarely within what His Honour indicated the

common law rules and principles ought to have

regard to. It is really in that context that we go

to this question of qualified privilege.

Could I just take Your Honours briefly to the

facts that are relevant to make the occasion of the

publication of the Ruxton letter an occasion of

qualified privilege. In our case stated, we set

out Dr Theophanous's particular offices and

positions at paragraph 3. Of particular relevance

is his role as chairperson of the joint

parliamentary standing committee. The terms of

reference of that committee are set out at page 46.

It was established to report upon regulations to be

made under the Migration Act. At that time the

entry into Australia under the Act was a matter of

discretion governed by discretions conferred under

the statute itself. The regulations codified the

terms and conditions of entry and the various visas

that could be granted that would permit entry.

So the committee was charged in effect with

general responsibility for reporting on migration

matters in general. It is clear from the case

stated that Dr Theophanous played a very prominent

role in that area as well as chairing the

Australian Labor Party's federal caucus immigration

committee. The circumstances giving rise to the

publication arose from a speech reported in Hansard

of another Labor member of Parliament, a

Mr Campbell. That is set out at page 48, going

through to page 51.

In various portions of that speech he was

highly critical of Dr Theophanous. That speech was

reported in the press and, as is set out in

paragraphs 9 to 12 of the case stated at pages 6

and 7, Dr Theophanous had played a high profile

role in this area. The consequence was the

publication of the letter sent to the Herald Sun by

Mr Ruxton. That letter appears at page 10.

GAUDRON J: Could I interrupt you there, Mr Merkel. Is the

background to your twelfth defence an assumption

that there is no defence of qualified privilege

available as the law is presently understood in

Victoria, in respect to these matters?

Theophanous	14/9/93
MR MERKEL:	It would only operate if the law of qualified privilege would not protect the publication, but it
is not so much an assumption, it is an alternative
way of putting it, Your Honour.

GAUDRON J: Well, I do not understand. You have not

otherwise pleaded qualified privilege, have you?

MR MERKEL: Paragraph 13 raises qualified privilege, in the

general sense, without regard to the constitutional

guarantee.

GAUDRON J: Is that Commonwealth qualified privilege rather

than a statutory privilege?

MR MERKEL:  Yes, Your Honour; in Victoria there is only the

common law in that regard, and that appears at

paragraph 13 at page 23 to page 24, Your Honour.

GAUDRON J:  Why are the words:

by reason of the freedom guaranteed by the

Commonwealth Constitution -

et cetera, necessary, in your plea?

MR MERKEL: It is put in one of two ways, Your Honour: the

first way is that the picking up the principle in

Dolphin's case, that the existence of the guarantee

would render the publication in question in the

present case as a publication as an occasion of

qualified privilege given the guarantee together

with the other facts. Paragraph 13 is an

alternative way of putting it, which would be

independently of the existence of the guarantee; it

was an occasion of qualified privilege.

GAUDRON J:  The reason I have difficulty in this area is

perhaps related to the questions in the case

stated. Are you inviting this Court, in essence,

to declare that there was in fact and in law an

occasion of qualified privilege? Because, as I	understand it, that is a matter for the Judge, in
essence, to decide and I am just not sure what we are being asked to decide in this area.

MR MERKEL:  The way in which it is raised in the questions,

Your Honour, are both, although the Court may decline to make the final order as a question of

fact. Initially, we say, as a question of law, the

pleading of qualified privilege is a good pleading
because it is open to be found that by reason of

the constitutional guarantee, the occasion was an

occasion of qualified privilege. The case stated,

we would say, sets forth sufficient fact to be able

to make that finding.

Theophanous 55 14/9/93

We would seek to go further, if the Court was

disposed to do so, to say that the publication in

question so clearly fell within the guarantee that

it was a publication on an occasion of qualified

privilege based on the facts set out in the case

stated, which are agreed facts.

We say that the Court need not have any more

than that to raise the question. Then it becomes a

question of whether malice could be established to

defeat the defence. But, we say, and that is why I

am

GAUDRON J:  You only ask us to approach it as though it were

a demurrer point?

MR MERKEL:	Yes, Your Honour.
TOOHEY J:	We are doing it against the background of

summons, are we not, to strike out that defence?

We are faced, not only with a case stated, but a

summons by the plaintiff to strike out

paragraphs 11 and 12 on the ground that they

disclose no defence.

MR MERKEL: That is correct, Your Honour. It is in that

context I am taking Your Honours to the facts, and

there really are very few further of them - - -

TOOHEY J: Perhaps, more accurately, that they are not

capable of sustaining a defence.

MR MERKEL:  Yes, that is right, Your Honour. We do say it

is raised as a question of law and the agreed facts

enable the Court to determine it as stated in the

case stated.

The letter was published in the Herald Sun on

8 November and at that time it was anticipated an

election would be called. The format of the letter

is set out at page 5 and the letter itself is set

out at page 10. But, just going to page 5 if I

might, the form of this letter highlights the

difficulty of the issues raised by Your Honour

Justice McHugh with me this morning, about the

problem of fact and comment, and what is mistaken

comment and false fact, because when one goes

through it, it is a letter, at page 5, which in its

first paragraph seeks to have the plaintiff thrown

off the Parliament's immigration committee - and

this stems from reports in the press of a speech

made in Parliament which is critical of

Dr Theophanous - in the third paragraph there is the statement:

He appears to want a bias towards Greeks as

migrants.

Theophanous 56 14/9/93

Then in the following paragraphs, there is comment

about Dr Theophanous being reported to want:

the British base of Australian society

diluted -

very strong criticism of him. Then, the conclusion

in the third last paragraph:

I am grateful there's an election in the wind.
I hope the people of Calwell give

Dr Theophanous the heave.

Then there is a reference to Arthur Calwell, whose name the seat was named after.

We say that that really epitomizes the kind of

problems that arise if one tries to distinguish
between fact and comment in this area, but the
point being made is that it is a criticism based

upon the matters set out which results in the

conclusion that he should be removed from his

chairperson role of the committee and not

re-elected at the forthcoming election.

What, of course, occurred is the writs were

issued on 11 February and Dr Theophanous' writ was

issued three days later on 14 February. We say

that the very circumstances and principles

enunciated by Your Honours in the Australian

Capital Television case and the Nationwide News case give rise to the very reason why the

publication, if not qualifying for a constitutional

defence, is a publication on an occasion of

qualified privilege.

We deal with the principles of qualified privilege in our outline and we deal with that

starting at page 42. The point that we emphasize

is that the basis upon which the doctrine has

always been applied stems from what is set out at

paragraph 9.3 at page 42, that is, the concepts of

ttpublic welfare, public good and public

conveniencett, and we say that is the very principle

which gave rise to the limitations to Your Honours

implied.

At page 49 at paragraph 9.20 we set out, in

effect, our summary that the guarantee in respect

of freedom of speech exists for the benefit of

society and the individual members and that there

is a general public interest, and it is for the

public welfare that such speech be able to occur on

an occasion of qualified privilege.

We say that it is inherent in the protection

that Your Honours have granted that this speech,

Theophanous 57 14/9/93

meeting this subject- matter, on this occasion,

falls within the protection and because it is a

constitutional protection, we say that its

translation into the common law defence of

qualified privilege removes that defence of the

learning shackled by notions of reciprocity of

interest and duty and really has the publication

itself meeting the requisite standard.

We say that reciprocity, in this context, is

achieved by the publication and the public interest

being served by its occurrence, having-regard to

the subject-matter to which it is directed. We

have outlined the facts and the circumstances to

show that it is a very real issue.

The last matter we would wish to say in that

regard is that pinpointed by this particular

publication is the fact that it is the vehicle used

by an elector, himself no doubt a person occupying

a high profile, that is, Mr Ruxton, to air his

point of view concerning Dr Theophanous and his

policies, the vehicle being the letters to the

editor of a Sunday newspaper which itself achieves

wide circulation. So the anomaly arises that this

is not the press expressing its view, but it is the

express making its facilities, as part of the democratic process, available to citizens and

electors, or any persons having a view to express,

to be able to communicate that view both to other

electors and to government and to the political

parties concerned. We say that is of the essence

of the freedom that Your Honours gave protection to in the two cases with which we have been concerned.

So we would submit that we would satisfy the

test in respect of those cases. The occasion would

be an occasion of qualified privilege, and that the

striking out of the defence ought to fail, and the

question in respect of that defence should be

answered. And if I can just take Your Honours to

it, that the question should be answered in the

affirmative in questions 3 and also in questions 4

in the negative, that the defences as pleaded are

not bad in law.

TOOHEY J:  Mr Merkel, is there a problem with this defence

in the light of the imputations that presently

stand in the statement of claim?	I am looking at
pages 13 and 14 of the case stated.	The

imputations that presently remain really do not

bear upon the plaintiff's conduct in office, do

they?

MR MERKEL:  With respect, Your Honour, the conduct that is

there discussed really is the conduct - if

Your Honour reads the speech in Hansard,

Theophanous 58 14/9/93

Your Honour will see that it is a criticism of

Dr Theophanous which is reflected by comment in the

article, but it does stem from Dr Theophanous's

role in the migration area which is a role carried

out in his three capacities, and only in his three

capacities; no private capacity. The three

capacities are as elected member for Calwell and
candidate for re-election in Calwell; secondly, as

chairperson of the joint parliamentary committee;

and thirdly, as chairperson of the Australian Labor

Party caucus committee on migration.

In those roles he has had a high and prominent

profile on migration policy. These comments are,

Your Honours, Girected solely to those matters.

There is nothing in the private sphere that is

referred to there. It is all in the public sphere

in that sense. We would say that it is not so much

the imputations that Your Honours in any event

should ultimately be concerned with; it is the

question of the article itself, whether its

publication constitutes an occasion of qualified

privilege. We have taken Your Honours to the

circumstances that should make it so qualified.

When Your Honours read the case stated, we would

say that it is not open to suggestion that this was

a criticism of him in any capacity or function

other than those we have stipulated.

TOOHEY J:  In other words, the way in which the plaintiff

pleads his case cannot preclude your client from

raising a defence of qualified privilege in the way

that it has.

MR MERKEL:  Yes, Your Honour. Indeed, the case stated

really leaves no other inference open in any event

that would be contrary to that which we have been

contending before Your Honour. The last matter

which we would seek to put before Your Honours is

that we would say independently of the Constitution

the occasion would be an occasion of qualified

privilege in any event. I do not want to get into

that. I understand in the next case that will be

the subject of submissions concerning the West

Australian publication. In that regard we would be

adopting what has been put forward by my learned

friend, Mr Jackson, in that regard and we would say

that even independently of the constitutional

issue, it is an occasion of qualified privilege.

But we say that we have put the submissions that we

have.

The only reference we should give Your Honours

is a recent unreported judgment of Mr Justice Angel

in the Northern Territory Supreme Court where

His Honour found that the test of reciprocity was

satisfied where there was a publication concerning

Theophanous 59 14/9/93

a matter of public interest, and that was the role of certain persons performing political functions, as it was put by His Honour, in relation to Uluru.

Could I just hand up to Your Honours some passages from His Honour's judgment. We can make available to Your Honours the whole of the judgment. It is

referred to in our outline of submissions at page

49. It is an unreported judgment of Mr Justice Angel in Toyne v Everingham of 29 July 1993. I

will not read the passages to Your Honours but he

says that the general publication on a matter of

public importance meets qualified privilege.	But
we would rely on those sentiments and the
submissions that are being put forward in the
Western Australian publication to support our

submission that the occasion was in any event an

occasion of qualified privilege. They are the

submissions that we would put to Your Honours.

BRENNAN J:  Mr Merkel, could I just raise one question about

the form of the pleading and the consequential form

of the questions in the special case. The use of

the phrase "a freedom guaranteed by", does

everything turn on that?

MR MERKEL:  Your Honour, it is not intended to turn on it.

It was intended to encapsulate the limitations or

freedom giving rise to it, the subject of

consideration by the Court in the two cases. We

are not seeking to elevate it to any height greater

than that which it was elevated to in the two

decisions. It is no more than that. It really, as

we put our cases, a freedom or a right to publish
material of the described kind in the sense of not

having the law fetter of publication, and that is

how we put it. We do not seek to put it any higher

or any differently to the right found in the two
cases, and we would believe our submission fall

within that umbrella. If the Court pleases.

MASON CJ: Yes, thank you, Mr Merkel. Mr Castan.

MR CASTAN:  If the Court pleases. Can I indicate at the

outset, Your Honours, that we resist, and we would

urge Your Honours to resist, whatever it was that

my learned friend put to Your Honours as his third

or last submission adopting something that may come

from my learned friend, Mr Jackson. If what my

learned friend was saying there was that this case

stated, and these proceedings somehow do involve

paragraph 13 of his defence, then we resist that

and we urge Your Honours not to embark upon that

which is not before you.

To be more explicit, we are here, as we

understand it, to debate the operation of the

so-called constitutional freedom, or guarantee, in

Theophanous 60 14/9/93

two aspects of its possible operation, as we

understand the way it is put. One, as a guarantee

at large·which, therefore, means that the

publication was not actionable, and secondly, as

constituting a new category of qualified privilege.

If something more is being said about what is

otherwise a purely conventional plea of qualified

privilege in paragraph 13, which we had not
understood was before the Court, then we simply say
Your Honours should resist it because it is not

before the Court and there may be many additional evidentiary matters that would go to the question of what I will call the ordinary operation of

qualified privilege in the circumstances here

operating.

So, we would say we are here only to debate

the two formulations in paragraphs 11 and 12, and

there either is a constitutional guarantee

operating to, in effect, make this statement

non-actionable in the way in which it is set out in

paragraph 11, and raised in questions 1 and 2, or

there is some new form of qualified privilege

raised in paragraph 12, and the subject of

question 3 in the special case. Beyond that, we

respectfully submit, these current proceedings do

not go.

Can I then take Your Honours to something my

learned friend referred to, but did not direct

Your Honours' attention explicitly to, and that is

the detail of the factual background by commencing

at special case at page 7 of the book, and direct

Your Honours' attention to the form of paragraph 13

of the special case, which indicates that:

On 8 and 12 October 1992 during the

adjournment debate in the House of
Representatives, the Member for Kalgoolie

Mr Graeme Campbell MHR criticized Theophanous' views and conduct in relation to migration

issues.	A copy of the Hansard report ..... is
Appendix 9.

And I direct Your Honours' attention to some

passages of that at page 51, and Your Honours will

see in the second column of the Hansard, page 1964,

which is before Your Honours at page 51, at about

point 3 of the page on the second column, Mr

Campbell speaking is saying in his third sentence:

His second principle was that of multicultural

harmony, whereby we would receive people from

other countries in proportion to the numbers

of people from those countries already in

Australia. He went on to say that this would

benefit such people as the Italians and the

Theophanous 61 14/9/93

Dutch. Of course, he did not mention the

Greeks, but the clear purpose of this concept is to give weight and preference to the people

of his own ethnic background, in spite of the

fact that they do not want to come here

anyway. In other words, he is displaying a

clear racial preference in immigration. It

may be one based on delusion, but it is still

a clear preference. Why is he not attacked by

the media? It is because he is just acting,

as all the professional ethnics do.	They have
the license to do so.	They want more people

like themselves. That is the bottom line.

They support multiculturalism because it

furthers their objectives and gives them more

power.

The honourable member for Calwell

attacked me for saying that the White

Australia policy was the correct policy to

adopt at Federation and that only after the
end of World War II was it sensible to review
it; yet his proposed policy is based on quotas
as the population stood while the White

Australia policy was still well and truly in operation. He says that the quota system is

how things work in the US. In fact, while the

US still has a quota system of a sort, his

proposal harks back to the earlier US system

which was scrapped in 1965 because it was

considered racist.

And on the next page, page 52, I direct

Your Honours' attention to line 24, the paragraph which reads:

Why not make the quotas relate to the

population as it stood at Federation in 1901?

This is an equally sensible date. We had the

White Australia policy then as well. Clearly,

that would not meet the objective of the

honourable member for Calwell. We know what

that objective is; I have made that quite

clear. It has been the opportunists and

frauds who have manipulated and distorted our immigration program in recent times, with the

assistance of cowardly politicians and members

of the trendy new class more concerned with

their own status and power than their much

vaunted equity.

That, of course, as Your Honours will

appreciate, was covered by absolute privilege.

Then, if I can take Your Honours back to page 7,

Your Honours will see in paragraph 14:

Theophanous 62 14/9/93

The speeches by Mr Campbell received publicity

in newspapers around Australia.

Just stopping at that sentence: there are, of

course, no proceedings relating to the publicity in

newspapers around Australia concerning the

reporting of that speech by Mr Campbell,

presumably because that is covered by the qualified
privilege relating to the fair reporting of
proceedings in Parliament. But, the point to which

we draw attention in the context of this case, is

that the publicity associated with the issue was -

significant publicity was achieved in relation to

the issue, including this particular attack on

Mr Theophanous.	Then there appears, in
paragraph 14:

Ruxton's letter was written to the editor of

The Sunday Herald Sun after that publicity.

May I then take Your Honours to page 10 of the

book. Your Honours will see there reproduced at

page 32 of the Sunday Hereald Sun of November 8,

1992, the heading, Letters to the Editor, the

headline, "Give Theophanous the shove'', the picture

marked, "Bruce Ruxton ... hopes the people of Calwell

give Dr. Theophanous the heave." Then there is set

out the text of the letter and, in particular, I

direct Your Honours' attention to, in this context,

the second full paragraph:

I have read reports that he stands for

most things Australians are against.

And the next paragraph:

He appears to want a bias shown towards

Greeks as migrants.

And so on. Your Honours have already had the text

of the letter read to you in its more pristine

presentation within the pleadings. That is the

context in which the debate about this matter

proceeds and in which the questions of freedom of

the press and freedom of public debate concerning matters of public concern, election and the other issues that have been raised by my learned friend.

I was going to follow the course of the

written submissions that have been put forward in

broad terms, but before going to those, can I

respectfully submit to Your Honours that the

difficulty that arises with my learned friend's

submission is that they have taken the terminology,

or the words of this Court, in the two cases, Australian Capital Television and Nationwide,

concerning a guaranteed freedom in relation to

Theophanous 14/9/93

representative government, and erected it into a

bill of rights equivalent; erected it into a

documented, written, constitutional guarantee, but

of course, are unable to say what is the framework

or context in which that guarantee operates.

Your Honours are familiar, and I will go later

to some of the examples of those guarantees, and

the kinds of qualifications that inevitably are

hedged around them when they are adopted as

constitutional provisions, as with the Canadian

Charter which is said to be subject to the

restrictions and limitations consistent with a free

and democratic society, and their equivalent kinds

of terminology adopted in various documents.

What my learned friend done, and it is illustrated by his submission that this is a

stronger case than the Retail Wholesale case in

Canada, is take wording used in the context of the

discussion by this Court in terms of preserving or

ensuring the continuity of representative

government which is manifestly embodied in our

Constitution, and taken that language and converted

it into an entire structure of, in effect, an

equivalent of a bill of rights or an item in a bill

of rights. He has assumed the existence of it in

that form and then drawn from that the assumption
that it operates, as does particularly the

American, in order to confer private rights. He is

forced to concede that the Canadian bill does not,

but says that nevertheless the Australian newly

created bill goes further even than the Canadian

one adopted as a result of constitutional

amendment.

That, in our respectful submission, is a

deficiency with that which has been presented to

this Court. It is our respectful submission that

that is not the approach taken by this Court either

traditionally in dealing with questions of power,

or traditionally dealing with questions of the

kinds of implications that should be made in the

Constitution.

There is a difficulty, of course, and it

emerges from the question on page 7. Question 1, I

think, was touched on by - I have forgotten which

of Your Honours, just towards the end of my learned

friend's submission - a difficulty about the use of

the concept:

Is there a freedom guaranteed by the

Commonwealth Constitution -

because that guarantee or freedom cannot operate in

the abstract, and the terminology that was used by

Theophanous 64 14/9/93

the members of this Court was, of course,

terminology dealing with the specific situation of

legislation imposing burdens on or barriers in the

way of the operation of the system of
representative government, and statutory burdens

which it was said cannot operate because of the

limits they place on the operation of that system

of representative government.

But merely using the words "a freedom

guaranteed" - a freedom which is the subject of a

constitutional guarantee - in the abstract, does

not, in our respectful submission, enable one to

characterize whether or not it applies in any given

context. It does not operate - because it is not

part of a constitutional bill in the sense of a

written document which has been adopted by the

amendment of the Constitution, to treat of it as

though it is, because it has been described as a

guarantee, is to elevate that which is being dealt

with in the context of ensuring the preservation,

or the continuity, of the system of representative

government in a statutory context in dealing with

the validity of legislation and apply it in context

to which it was simply not intended to be applied.

What we have sought to do from pages 3 to 10

of our written submissions is to give a framework

of reference, if we can call it that, derived in

substance from Quick and Garran and some passages

in that volume, to the reason why the tradition has

been in Australia for there to be limitations on

legislative power and the exercise of executive

power and the reasons why there have been, and may

well be, other guarantees, as it might be called,

derived from the necessity to restrict the

operation of legislative power where it interferes

with the basic premises of the construction of the Court has said in cases like QEC, the Queensland case, that ultimately there is the implication of the continued existence of the very federal

structure and so the very existence of the

representative Government. This approach, which

looks to implying what might be termed guarantees,

is really implying limitations of power.

MASON CJ: What, like section 92?

MR CASTAN:  And section 92, we would respectfully submit,

operates as a limitation of power. It cannot be construed as conferring some right, otherwise it

leads to ridiculous results. We could have a

situation in which, in relation to section 92, it

might be said, "Here is a constitutional guarantee

of intercourse between the States", and a person

who is in gaol in Albury rushes off to this Court

Theophanous 65 14/9/93

and says, "My freedom to go to Victoria is being

impaired. I have a constitutional guarantee of

freedom of movement between the States." It is

self-evidently not intended to be a personal

guarantee in that sense, it is intended to be a

restraint on power.	Can I take Your Honours
to - - -

BRENNAN J: That is accepted by Mr Merkel, as I understood

it, but he goes further and says that the

Constitution in this context has one other

operation, and that is by its own force it altered

the common law.

MR CASTAN:  Yes, and it is conceivable that there might be

circumstances in which the Constitution altered the

common law. I cannot think of an example but, if

there were some common law principle that was

totally inconsistent with a concept of a federal

system, for instance, then in that sense it might

be said that the common law principles have now

been supplanted, like a statute that operates

within a State alters the common law. If there is

some principle of common law that is manifestly

contradicted by - if there was some form of common

law right that was manifestly inconsistent with a

command of the Constitution, of course the common

law would give way.

BRENNAN J: That is the argument against you, is it not?

MR CASTAN:  But it does not work here because it has to

assume not only that it operates so as to adapt the

common law or affect the common law, but that it

actually operates to affect this common law rule,

that there is a set of rights that have been

conferred on individuals. There is nothing, in our

respectful submission, in the nature of

constitutional doctrine or in the nature of the

concept of representative government or anything

else that suggests that the Constitution has any

provision that affects the common law. If the Constitution expressly overrode the

common law, just as the Court has said often

enough, if a statute overrode the common law, if it

laid down some principle with which the common law

was manifestly inconsistent - it is difficult to

imagine examples - then one can conceive that the

Constitution might ultimately be held to prevail if

there was some inconsistent common law rule that

had been inherited prior to 1901.

TOOHEY J: But that argument seems to assume that there is a

principle of common law with which the alleged

constitutional guarantee comes in conflict. What

if the common law has nothing to say on the matter?

Theophanous 66 14/9/93

MR CASTAN:	Then there is no relevant question.
TOOHEY J:	No, but in the sense - to imply a guarantee from

the Constitution bearing upon, say, freedom of

speech. If the common law has nothing to say about

it, does your argument prevail in that case?

MR CASTAN: Well, Your Honour, if the common law has nothing

to say about it, one is left with the question

whether one should characterize - - -

TOOHEY J: Sorry, can I just interrupt you. It does

negatively in the sense that it does not recognize

what is sought to be extracted from the

Constitution.

MR CASTAN: Well, there are a number of hurdles that have to

be overcome before one gets to that point. Our first point is that there is no such construct, there is no such guarantee in the sense in which

our learned friend seeks to draw on it. As I said

earlier, he has sought to erect this equivalent to

the prescribed enacted, duly constitutionally

adopted, freedom but, of course, that is not what

the Court said, nor is it what the Court should

have said, and we would urge it is not what the

Court should now say. The Court should not do that

and it is not a task that - and I will come to

various reasons why - necessarily follows, it does
not follow at all from what the Court has done in

the cases to date.

TOOHEY J: No, I was not thinking so much of the case before

us but of your broader proposition that there was
difficulty in extracting an implication from the

Constitution because such an implication might run

up against the common law. So, that really

prompted me to ask the question, "Well, what if the

common law has nothing to say on the matter?"

MR CASTAN: Yes, well I had not meant to say that the

difficulty of extracting it is because of anything
in the common law.	On the contrary, what one sees

from the writings is that the common law is treated

as the very fabric on which the Constitution is

built. This whole discussion precedes upon the

assumption of some inconsistency, but the

inconsistency is highly hypothetical. One has to

strain to conceive of an inconsistency, whereas in

fact the position is quite the converse, we would

submit. The position is that the common law is the

fabric on which the Constitution is built, and the

common - - -

DAWSON J: Really, is not this making heavy weather of it?

The implication is an implied restriction on

Commonwealth legislative power, the Commonwealth

Theophanous 67 14/9/93

legislative power being subject to the

Constitution.

MR CASTAN:  Yes, Your Honour.

DAWSON J: That is the beginning and end of it.

MR CASTAN:  That is all we say. I was asked a question

about the - - -

DAWSON J:  And the freedom which we have, that is the

so-called freedom of speech, stems from the fact

that it is not curtailed anywhere.

MR CASTAN: Precisely, Your Honour, and we have set out

precisely that in the passages I was going to go

to.

DAWSON J: Save, in some respects, such as defamation -

MR CASTAN: Yes, where otherwise qualified. Can I hand

Your Honours extracts from Quick and Garran, only

for the purpose - and we would respectfully adopt

the simple propositions as put by Your Honour

Justice Dawson, but I simply sought to support what appears at page 4 of our written submissions in

paragraph 2.3. It is an extract from page 928 to
929 of Quick and Garran - we omitted the page
reference - and going to the text, the way in which
it is put by the learned authors, at about point 8

of page 928, the sentence appears:

State powers and State institutions, Federal

powers and Federal institutions, all spring

directly from the same supreme source -

British sovereignty. The Federal Government

and the State Governments are in fact merely

different grantees and trustees of power,

acting for and on behalf of the people of the

Commonwealth. Each of them has to exercise

its powers within the limits and in the manner

prescribed by the Constitution; each of them

has different powers to be used in different

domains for different purposes. The

Constitution is the title, the master, and the

guardian of all these various governing

agencies. At the back of the Federal and

State Governments are the quasi-sovereign

people of the Commonwealth, organized within

the Constitution as a quasi-national State;
they can alter the instrument of government,
abolishing existing institutions of

government, and substituting new ones, subject

only to its special provisions and the

Imperial supremacy. The States, therefore, as

governing organizations, are not inferior in

origin or status to the Federal governing

Theophanous 68 14/9/93

organizations. Both are equally subject to
the law of the Constitution, and equally

entitled to its protection.

Now, all we seek to draw from that is the notion

that the conceptual basis on which Federation took
place was that there was a consensual compact
between the people of Australia, in which they

freely agreed to grant or entrust - to pick up the

words of Quick and Garran - "powers to the organs

of government created by the Constitution being the

newly created Commonwealth and the States as

successors to the former colonies." And we say

this concept of the significant role of the people

is emphasized by Quick and Garran in the earlier

passages, some of which are in the extracts we have supplied. At page 285 to 286 - and I will not read these - but Your Honours will see a discussion of

the concept of the people in the extract at page 285, as it said in the first sentence:

The opening words of the preamble

Constitution will of the people whom it is designed to

proclaim that the of the

unite and govern. Although it proceeds from

the people, it is clothed with the form of law

by an Act of the Imperial Parliament -

and so on. At page 332 in the extracts at about

point 7 of the page, before the subheading "Western

Australia", two sentences:

The vagueness of one and the deficiency of the other Constitution -

referring to the United States and Canadian

Constitutions -

have not been allowed to disfigure the design

of the Constitution of the Commonwealth. The

union of the people of the colonies is doubly

asserted and assured; first in the preamble,

where it is recited that "the people have

agreed to unite," and secondly in this clause,

in which it is emphatically stated with

mandatory force that on the day appointed they

"shall be united."

We would respectfully submit, as summarized at

pages 4 and onwards, that important principles flow

from this conception. Included among them are that

there is this in granting or entrusting of powers
the organs of government and of course the

receiving of those powers by those organs of

government.	They are received subject to the
limitations within the grant of power.	Some of

Theophanous 69 14/9/93

those limitations are spelt out, others are

implied. Of course, those organs are given the

capacity, among other things, to limit our own

individual freedoms by legislating, by executive

conduct and so on. But in turn that capacity to

restrict the freedom of the individual is itself

limited, as this Court has provided and declared on

many occasions.

At paragraph 2.10 we put what we would

respectfully submit is a fundamental concept to

this perspective on constitutional doctrine and

constitutional freedom. It is our respectful

submission that nothing contemplates that the

organs of government have or may confer freedoms on
the people. Rather, it is the people who remain

free subject to only the restrictions that may be

imposed.

At 2.11 we point out that the Constitution

itself does not grant rights or freedoms. We pick

that up over the page by pointing out some of those

sorts of ways in which the terminology of the

Constitution operates. The classic of course is

section 116, another is section 114, similarly with
section 117, and section Sl(xxxi) which can be

colloquially termed a guarantee of preservation of

property rights but of course operates as a

restriction on legislative power to acquire

property other than on just terms. It is not

expressed as "there shall be the right of private

property" or some grand expression of conferring of

rights.

As it is put on page 8 of our summary - and I

will not go to the detail of it; much of this is

spelt out in the judgments of the courts in various

cases which have dealt with common law rights -

rights of the kind such as that which is
colloquially talked about as being preserved by

section 116 do not need constitutional recognition.

The power of a particular branch of government to

restrict the otherwise freely existing right, as

Your Honour Justice Dawson put it, is restricted.

It is up to the people to decide which kinds of

restrictions they impose.

At 2.16 we draw from this the relevant

material to this current problem, but speaking of
guarantees of freedom in terms of our

constitutional structure is inherently imprecise.

The mechanism that has been adopted to ensure a

guarantee of freedom is to limit the power to

impair the freedom. Of course, the proper

construction of a power used to impair a freedom
may well lead to the conclusion that the power does

not extend so far - the Communist Party case,

Theophanous 70 14/9/93

83 CLR 1. We refer in particular to page 193, the

judgment of Sir Owen Dixon.

We point out what might perhaps be

self-evident at 2.17, that these exercises in

construction are undertaken constantly, and

inherent in them is the recognition that underlying

freedoms are assumed to continue, including what

are often termed "rights", such as legal

professional privilege. The grants of power may

well be constrained in ways which ensure that such

freedoms are not restricted.

It is in this regard at 2.18 that we pick up

this concept in which the so-called "Bill of

Rights" may emerge, but we would respectfully submit not in this case and not in the way our

learned friends suggest. As we put it in the

third line in 2.18, in truth that development would

not give rise to a Bill of Rights.	It properly
would be described as a "Bill of Limitations".	We

assert again the Constitution, the Parliament or

the courts do not confer fundamental rights on the

people. They are possessed of them except to the

extent to which they are impaired. But the Court's

functions manifestly include the appropriate

development of constraints upon the exercise of

powers which otherwise might interfere with those

rights.

What flows from all that conceptual framework,

we would submit, is expressed at 2.19. The

invitations extended by the media defendants in

these cases involve the adoption of conceptions

entirely foreign to the framework of the process

which gave rise to Federation, and it is for that

reason we have gone back to Quick and Garran.

McHUGH J: But does your argument not slide over the

existence of sections 7 and 24 in the Constitution

which both speak not in negative terms, but in

positive terms:  The Senate shall be composed

of ..... directly chosen by the people -

and the same with the Representatives. Are those
not the sections which are the basis of the

doctrine of representative government?

MR CASTAN:  They are the foundation of representative

government, and what they are setting up is a

framework for the process of selection, but they are not grand conferrals of rights, Your Honour.

They admittedly are not restraints on power because

of the nature of what is being provided for.	What
they are is setting up the mechanism for the

Theophanous 71 14/9/93

functioning of executive government. It is the

people, the people directly electing who become the

source of power, and that is consistent with these

other premises that we have been putting about the

people. What that is concerned with is the

erection of the mechanism of representative

government.

McHUGH J: Another way of looking at it is that they confer

rights on the people to representative government.

MR CASTAN:  One can express it that way, and one can say,

"Well, therefore you have the right to

representative government." We would respectfully

submit that the appropriate constitutional
tradition that we have here deals with that by

characterizing it as setting up the mechanism, and

laws which interfere with that mechanism, a

mechanism in which the Senate is directly chosen by

the people of a State and in which the House of

Representatives are directly chosen in the way that

are there prescribed, are laws which will be

restrained or will be held as contrary to the

Constitution. One is still ultimately dealing with

a question of whether or not laws which are passed

will fall within the framework of the permissible

range of law making.

McHUGH J: Suppose the Parliament, exercising its powers in

respect of elections and electorates, so distorted

the statute book that representative government

cease to exist as a matter of legislation. Would

not there be express rights conferred on the people

to correct that?

MR CASTAN: That is precisely what was argued in

McKinlay's case in -

McHUGH J:	I know.
MR CASTAN:	And, the Court did not deal with it, in our

respectful submission, in that context or in terms

of rights. In our respectful submission, the Court

dealt with it in terms of the institution of

representative government ensuring that the

structure of representative government was

maintained, and ultimately held that it was not

impeded.

Characterizing it as the right to come to

Court, of course, raises a different question. It

may be a question there of standing, which is a

right of a different kind. But in terms of the right to representative government, there is no

question that one can, perhaps, usefully talk about

it in a colloquial sense, as saying, "Yes,

Theophanous 72 14/9/93

everybody in Australia has the right to
representative government."

In our respectful submission, in terms of the conferral of some kind of right that affects ones

relationships with one's fellow citizens, or a right that exists in some abstract way, in our

respectful submission, it is simply contrary to the

flavour of the Constitution, its origins, the

background of the common law rights which are

regarded, as Justice Dawson has put it, as the pre-

existing framework of freedom. It is simply not

consistent with it.

McHUGH J: But does it really matter whether one looks at it

as a positive or negative right, because in the
end, the real question is whether by necessary

implication, the right extends to fashion a claim

as made by the defendants in this particular - - -

MR CASTAN:  Ordinarily it would not matter. Our learned

friends have sought to make the great leap, and

they have leapt from restraints on power which

manifestly was what the court was dealing with in the two cases they have relied on, to this set of

positive rights somehow drawn from the

Constitution.

DAWSON J: It is an implied prohibition. That is what it

is.

MR CASTAN:  Yes, Your Honour. It is one of those

restraints. The implied prohibition upon the law-

making power that interferes with the structure of

government. One does not need to go further than

that in so far as one is looking for a framework of

reference for future development as we would gather

lies in what is being put by our learned friends.

We would say it is a framework to go beyond implied

prohibitions on the exercise of power is to take a
leap that is simply not in accordance with either

the constitutional tradition, or the words of the

Constitution, and not justified or desirable for

policy or any other reason that he has been able to

elicit or put to the Court, as we would submit.

On from page 11 onwards, we have dealt with.-

and I will not deal with these in detail.	We have
set out there rather than turning it to the
authorities themselves the reports.	We have

actually set out the passages in which various of

Your Honours have dealt with this question in order to point up those passages which make it clear that

what Your Honours were dealing with was an implied

prohibition of the kind we have been endeavouring

to articulate, and various of those passages are

set out. It is not, we think, necessary to go to

Theophanous 14/9/93

these in details, but over on page 12 there are

some passages from the judgment of Your Honour

Justice Brennan and, of course, we draw attention

at the foot of paragraph 3.3 to the express passage

at page 671:

that the implied right of free speech does not

bring into question laws which need to be

balanced with the implied right, such as the

law of defamation.

It is at this point that this language of rights,

or prohibitions, or constraints on power perhaps

becomes significant. We then, at paragraph 3.4 at

the top of page 13, point out the observation of

Your Honour Justices Deane and Toohey, that it is:

not an implication -

of some kind of:

licence -

It is a:

freedom under the law of an ordered society.

We point out at 3.5 the reference from accepting point that:

The guarantee does not postulate that the

freedom must always and necessarily prevail

over competing interests -

and that is developed at paragraph 3.6. At page 14

we set out the passage from Your Honour the

Chief Justice at page 702, there quoted:

that it was difficult, if not impossible, to

establish a foundation for the implication for

general guarantees of fundamental rights and

freedoms.

And Your Honour makes the point that we have,

perhaps, been trying to elicit in our conceptual

background:

To make such an implication would run

counter to the prevailing sentiment of the

framers that there was no need to incorporate

a comprehensive Bill of Rights in order to

protect the rights and freedoms of citizens.

That sentiment was one of the unexpressed

assumptions on which the Constitution was

drafted.

Theophanous 74 14/9/93

And, we point out that our learned friends, as we

understand them, are asking Your Honours to

approach this from a point of view that is directly

contrary to that which Your Honour the Chief

Justice expressed in that passage from

Capital Television.

Again - this is at paragraph 3.7 - there is

the passage from Justice Brennan, and Your Honour

at page 708, which refers to the concept of:

an immunity consequent on a limitation of

legislative power.

And, in considering the Commonwealth law of

defamation, Your Honour considered the validity

imposed would depend on the relative interest which

the law was calculated to serve. Your Honour

rejected the notion that the implied right of free

speech was in any sense an absolute right, and

specifically referred to the balance to be struck,

at page 712, between the implied right of free

speech and the countervailing interest underscoring

defamation. And we point out, of course, no

suggestion of upsetting that traditional balance,

and Your Honour expressly distinguished the New

York Times v Sullivan point that our learned friends have relied on so heavily.

There are passages at 3.8 from Your Honours

Justices Deane and Toohey as to the implication of

an implied right of free speech as not being an

absolute and controlled licence. Your Honour

Justice Dawson in Capital Television expressly drew the distinction from the American Constitution, and Your Honour expressed that the Constitution does

little to confer upon individuals the basic

freedoms; that they arise because the Constitution

does not seek to curtail them, and Your Honour

expressly referred to the law of defamation as an

accepted limitation on the convention of free

speech.

Your Honour Justice Gaudron at 3.10, in our

submissions, we have summarized from page 735.

Your Honour expressed it this way:

in general terms, the laws which have

developed to regulate speech, including the

laws with respect to defamation, sedition,

blasphemy, obscenity and offensive language,

will indicate the kind of regulation that is

consistent with the freedom of political
discourse.

And, of course, at the top of page 17, that it does not involve:

Theophanous 75 14/9/93

the right to disseminate false or misleading material nor limit any power that authorizes

laws with respect to material answering that

description.

So, as we would submit, certainly did not suggest

any removal in the legislative power sense, or any

sanction to the introduction of a quasi bill of

rights, and we submit, that

Your Honour Justice McHugh expressed the matter somewhat wider but not in a way that would lead to

the conclusion that our learned friends have put.

So, as we would submit, certainly did not

suggest any removal in the legislative powers sense

or any sanction to any introduction of a quasi

Bill of Rights and we submit that Your Honour

Mr Justice McHugh expressed the matter somewhat

wider, but not in a way that would lead to the

conclusion that our learned friends have put.

Now we put out at paragraph 3.12 that what our

learned friends have done is assume the existence
of a constitutional guarantee investing rights and

then gone ahead to articulate the way in which

those invested rights may operate. We draw

attention to the constraints contained in

sections 116 and 117, and can I add to the top of

page 18 a reference to the judgments in the counsel

for the defence of government schools case; that

is, Attorney-General for the State of Victoria (at

the relation of Black) and others v The

Commonwealth, (1981) 146 CLR 580, in a passage of

His Honour the Chief Justice Sir Garfield Barwick -

I do not think this is on our list of authorities,

Your Honours, but it is relevant to the section 116

point here - and at pages 605, the judgment of

His Honour Mr Justice Stephen, discussing the

nature of the constraints on power that are
contained in section 116 in the context of the

Australian Constitution.

Now from paragraph 3.13 onward we answer what

has been said about covering clause 5 and we say, as I answered in response to a question some time

ago, it is self-evident that if the Constitution

prescribes the operating law in a given situation

that constitutional prescription binds the judges

of courts throughout Australia. But, of course,
covering clause 5 adds nothing to that. It is

trite law; the words of the Constitution operate

according to their terms.	The question is whether
there are any such words.	Our learned friends have

assumed there are the right kinds of words that

operate so as to limit the common law, but he has not said where he finds those words or where this

charter exists that he seeks to draw from. And we

Theophanous 76 14/9/93

say at paragraph 3.14 that the implied freedom

discussed in the two cases relied on is not in

conflict with the law of defamation.	We will come
to the law of defamation shortly.

We say that the cases such as Breavington,

which deal with the choice of law problem, just do

not assist our learned friends; they do not deal

with the present problem. Ultimately, of course,

it is another self-evident proposition that the

common law in the States and Territories will

finish up as a single and non-conflicting body of

law throughout the Commonwealth. That is because

this Court is the ultimate court of common law.	So
if there are conflicts between the common law in
Tasmania and the common law in Western Australia,
ultimately if those supreme courts are in disagreement, there will be an issue about the
development of the common law in Australia that
will come up on special leave to this Court.

Saying that, saying that there is a unified common

law in Australia, simply takes one no where for the

purpose of the submissions that our learned friend
seeks to draw on.

We give two examples, two of the most powerful examples, perhaps, at page 20 of cases that

illustrate the well established principle that a

statute does not affect a fundamental alteration in

the common law unless it points unmistakenly to
that conclusion, and, of course, the same principle

applies to the Constitution. It is conceivable,

one can perhaps imagine, with difficulty, the

constitutional prescription that alters the common

law, and if it said that then it would operate

according to its term.

At paragraph 3.16 we submit - and we respond

to what has been said by our learned friends

concerning the various statutory defamation regimes

by pointing out that it is irrelevant to

consideration of the problem presently posed before

the Court to consider the fact that there are

various statutory regimes in a number of States.

This case concerns only paragraphs 11 and 12 of the defence. Those paragraphs are under the explicit

heading "Victoria and South Australia". They are

the common law defences.

Our learned friends have not sought to say,

have not sought to challenge or argue, that in the
statutory States there is some constitutional

regime that operates contrary to those State

statutes which govern defamation law.	He has not
sought to even put it.	The fact that there are

differing regimes because of the existence of

statutory defences is of interest but does not, in

Theophanous 77 14/9/93

our respectful submission, assist my learned
friend. Unless he seeks to say, which we did not
understand him to be saying, that in his example of

the Calwell v Ipec case somehow the New South Wales

statute is an excessive restriction on free speech

under the New South Wales Act. We did not

understand him to say that, we do not understand

the case to be, or the pleading to be, that there

is something wrong with the New South Wales Act.

So reference to it seems to not assist, other than to point out that there is something other than the

common law operating in New South Wales.

I will deal with some, what might be termed,

"policy questions" which perhaps were implicit in

our learned friend's submissions after dealing with
qualified privilege, but in our respectful

submission, the defence of qualified privilege

itself is clear. It is a law which - and we have

set out a fairly detailed analysis of its

development - it is a law which looks to the

question of whether or not there is, as it is put,
a public or private duty, whether legal or moral,
on the part of the person making the statement, in
matters where his interest is concerned and looks

to reciprocal interest in the audience. The focus

of the law of qualified privilege is a focus not on

the status or characterization of the plaintiff,
the person defamed, but on the kind of relationship

that the defendant has - the publisher has - with

what we will call the third party or parties - the

audience. In our respectful submission, that is as

it should be.

The American position, in adopting a totally

different perspective, which does not look to the

common law privilege but creates this

constitutional right, is addressing a totally
different level of discrimination, or level of

focus of attention: namely, the character or

status or position of the plaintiff, of the person

defamed.	The law of qualified privilege has, as
its principal focus, the relationship between the

publisher and the audience in this three way

transaction. Of course, it is important to

recollect that other defences are available. We are not in a regime where qualified privilege is

the only possible answer that there is to this

supposed attack on freedom of speech constituted by

an action brought for a falsehood spoken about

somebody. Fair comment on a matter of public

interest is available and of course it is pleaded

in this case.

The way in which the case has been portrayed

by our learned friends, as though there is this

chilling effect if the constitutional defence is

Theophanous 78 14/9/93

not available or, alternatively, the new category

of qualified privilege, assumes that that is the

only basis on which the publisher can escape

liability for the falsehoods, for the purpose of

the assumption, spoken about the plaintiff.

A number of cases are there set out. I will

not trouble the Court by taking Your Honours now
through paragraphs 4.3 and onward where the

sequence of authority is set out from Adam v Ward,

Watt v Langsdon, a passage from Gatley which is set

out at the foot of page 24. At 4.6 the essential

prerequisite of the defence, of course, is the

reciprocity of duty or interest. Our learned

friend seems not to have directed attention to this

in terms of his argument that there is some new

qualified privilege, but perhaps the argument is

that it exists independently of any reciprocity of

duty or interest. We would submit there is no

justification for that.

We note in paragraph 4.8 that usually the

courts have held that the defence is not available with respect to newspaper publications, and one of the cases dealing with that, except in the case of

response to attack, being the self-defensive

response. Ordinarily the public does not have a

strong enough interest. We have set out again a

number of the cases at 4.9 and 4.10.	I will not
trouble Your Honours by reading all of those.	The

authorities then run down through paragraph 4.11.

Can I take Your Honours to paragraph 4.12 as

an interesting example of the fact that the defence

of qualified privilege itself does not operate as

some absolute bar of the kind that perhaps my

learned friends have suggested in raising the

so-called chilling effect. The case of the ABC v

Comalco, (1968) 68 ALR 259, illustrates that there

is a range of circumstances where there may be the relevant public interest. In that case His Honour

said - I am reading now from the foot of page 27 of

our submissions - on page 289:  The reciprocal duty and interest will not

arise from the mere fact that the publisher

has information which it would interest the

public to hear. There must be an interest of

a particular kind. The kind of interest which

will justify the publication is an interest

arising from some particular quality in the

subject.

Then he says:

Theophanous 79 14/9/93

In relation to this test the subject of

the broadcast does fall within the range of
privileged publications.

He then gives the reasons why the particular matter

is of special concern. I will not read the

details, but he draws the contrast between some

issue that is of particular concern but compares
that with, say, the result of a football match or a

race and says at the top of the page:

all Australians have a continuing

responsibility to examine developments and

policies and in relation to which the

formation of an informed public opinion is of

importance for the formation of official

policy and the establishment of standards of

private conduct ..... Accordingly, any
publication genuinely for the purpose of

satisfying the public need for information on

a subject of that kind is a privileged

publication.

In that case differing views were taken.

His Honour Mr Justice Neaves at page 328 leaned the

other way on that particular issue.

Mr Justice Pincus at page 341 tended to the view

that the case did not go so far as to establish

that there was the relevant public interest. The

topic that was being examined of course was the
question of whether the audience had the requisite

interest in the particular topic of the particular

kind so as to justify publication, in that case to

a television audience, at large.

BRENNAN J:  Do you embrace that passage that you just read

from Justice Smithers?

MR CASTAN:  Yes, Your Honour. We accept that there will be

some instances where it will be possible to show

that a particular topic, or a particular matter, by

reason of whatever the circumstances will be, and

they all vary, may be of that kind. We would say that was a legitimate conclusion. Whether or not his view, as against the view of Justice Neaves and

Justice Pincus was the better view on the

particular facts and circumstances would, of
course, be a matter for evaluation of the facts and
circumstances of that topic at that time in the

context in which it arose. These are not matters

in which one can draw a priori principles or rules,

and that is of course the difficulty with our

learned friend's submission about focusing

attention on the public figure, or the member of

parliament, or the particular characterization of
the plaintiff, rather than looking to the nature of

the matter which has been conveyed and seeing

Theophanous 80 14/9/93

whether there is a proper justification for

publishing to the world at large, because there is

the requisite kind of interest.

Two other examples, if I might respond to

Your Honour Justice Brennan, with two other

instances of the authorities where a similar view

has been taken to that of Justice Smithers. In

particular cases Wright - this is not in our

authorities. It is (1977) Wright v ABC,
1 NSWLR 697, at page 711 in the judgment of

Justice Reynolds. iI is mentioned a couple of pages

back. It concerned there the election of the

president of the senate and the behaviour of a
particular senator, and His Honour there leaned to

the view that the particular circumstances of that

particular statement was such that it was of the

requisite public interest kind.

One can imagine, to give an example, these

days, in the last three or four federal general

elections, we have had the television debates

between the Prime Minister of the day and the

Leader of the Opposition of the day, and one can imagine that it could be said that within the

framework of qualified privilege, if both those

leaders are going on public television to address

the electorate at large, neither of them, and

perhaps persons commenting on them, could complain

that the broadcast by the television channel was
too broad for the purpose of an action for

defamation, if brought. The qualified privilege

presumably would operate, and it is an illustration

of the way in which the defence adapts to the

particular circumstances of the day. Those

television debates would be a classic example,

perhaps, where the defence might go that far.

Ultimately it is summarized in paragraph 4.13,

the ordinary law of qualified privilege as being a
test of the common convenience and welfare of

society.

So, as we conclude at paragraph 4.14, the law

of defamation, in its common law framework, will,
if appropriate, accommodate the demands of the

public wishing to engage in discussion on political

matters. The suggestion that there ought to be an

extension to the law of defamation by this
constitutional doctrine, somehow devised, or an
easing of the categories of public interest does

not raise a constitutional issue. If there is to

be any development of the common law of defamation,

then it is a matter that will not be dealt with on
this application here before Your Honours which is

sought to derive something from the Constitution.

If it comes back to Your Honours after this case

Theophanous 81 14/9/93

has been dealt with in the county court, then so be
it, and it can be looked at in its proper context

as a particular case dealing with qualified

privilege if that can be made out.

We say the Derbyshire County Council case

illustrates no more than that, that the ordinary

law of qualified privilege, or in that case an

inability of the county council to be defamed,

simply falls within the ordinary common law rules.

There is no need to try and draw some magic

constitutional principle. That conclusion is what

we respectfully submit at paragraph 4.16.

At 4.17 we point out that there is no

evidence - and this has perhaps emerged in argument

this morning from Your Honours - but there is

simply no evidence in this case or generally in

Australia, that there is any justification for suggesting that the defence of qualified privilege in its current manifestation in Australia has this

so-called chilling effect on free discussion of

political and governmental matters; and the

suggestion that the requirement to establish truth

is somehow an inhibition is, in our respectful

submission, well illustrated by the present case.

This is a case where the material which would

otherwise have been defamatory, as it would appear

on the face of it, was spoken under the privilege
of Parliament. It was widely reported so the

public had ample opportunity to read under

qualified privilege attaching to parliamentary

proceedings these matters, and this newspaper and

this correspondent chose to then embellish and

republish that which had already been widely

published of something that had been said under the

protection of parliamentary privilege.

In our respectful submission, the suggestion

that there has been any chilling effect on freedom

of speech in those circumstances is beyond

contemplation. It is suggested perhaps that one can rely on

malice - paragraph 2.8 of the defendant's

submissions suggests that malice can always be

shown in appropriate cases and that that is the

correct test, though it is not articulated why that

should be a test of some kind. And we point out in

response to that that the media are concentrated,

that it is not always a one-way street of saying,

"Well, is the chilling effect on the media?" There

is also a question of wider considerations may be

at play here if this Court was to adopt some, what

we would respectfully put is a new doctrine. What

happens in the case of a campaign against a

particular politician? What happens to

Theophanous 82 14/9/93

independents or minor party politicians who are

subjected to the full force of media interests who

are denigrating them? What happens if the

political issue is the regulation of media itself,

where the media has an interest in a particular

result or in opposing a particular politician who

seeks to take a particular view of the law

governing the media? And we say that the balance

must be struck correctly and we draw attention at

page 32 to that passage from Your Honour

the Chief Justice in Calwell v IPEC Australia

Limited (1975), expressed at page 32:

there is a danger that too much emphasis on

the importance of freedom of discussion of

public affairs and of the personalities who

participate in them may lead to a diminution

in the protection which the law affords to

those engaged in public life, as well as to

private citizens, from unlawful defamation.

And we commend that principle to this Court.

Well now, under the heading of policy considerations, there are a number of matters, some

of which have been touched on already and I will

not repeat them. We say there is no evidence in

paragraph 5.1; we point out in - - -

McHUGH J: Well, what about the Askin story in the National

Times? They waited until the day he died before

they published allegations alleging that the former

premier was corrupt. Does not that indicate the

chilling effect of the defamation laws?

MR CASTAN: Well, in our respectful submission, if it was

true, there was no need to wait.

McHUGH J: Well, it is a question of, it may be true, but

you may lack proof or you may lack the witnesses

who will come to court to give evidence. I mean,

you were not going to get the baccarat tsars and

over the bribes, to come along and say, "I used to	the SP bookmakers, who are alleged to be handing
hand over the money every Saturday".

MR CASTAN: That is of course true, Your Honour, but our

experience in Australia, we would respectfully

submit, has not been one of a press that is somehow

inhibited. On the contrary, there was much said

colloquially and anecdotally about what is now

referred to sometimes up at Parliament House as the
rat pack of the press gallery. There are

circumstances where it is said that certain persons
of the press will suddenly get on to an issue and

turn it into, as they call it sometimes, the media

circus. There are equally countervailing

Theophanous 83 14/9/93

illustrations of the media exercising substantial

political power and, some would argue, undue power

in certain kinds of environments.

McHUGH J: 

I appreciate that. Professor Mayo in his

writings has made a powerful case for saying that
it is the press that really select what are the
subjects of public interest. If they want to put

something on page 30, it will just sink without any

discussion.  If they want to make an issue of it,

they will put it on page 1 and it will soon become

an issue if they run the story enough.

MR CASTAN: 

Yes, Your Honour, and there are many who live in the political world who take the view that the only

people who really exist are those whose presence is

manifest in the media.  One sees reference to

characterizations of the only 17 intellectuals in

Australia who are identified. Of course, what is

being really identified is the people who the media

have chosen to draw attention to over the past five
years. So there is no doubt that the press wield

enormous power and, in our respectful submission,

no real evidence to suggest any chilling effect,

nor, in our respectful submission, do the American
experiences, as we will come to - we will give some
references to the American experience - suggest

that this is a course which will lead to some

significant benefits.

We set out again at 5.3 at the bottom of

page 33 and over to page 34 the suggestion that

there is a countervailing interest in members of

Parliament not being subjected to the so-called

chilling effect. One can use these phrases with

gay abandon. In our respectful submission, just as

one can talk of the media being subject to the

chilling effect of defamation, one can talk of the

chilling effect on some politicians of public

attack based on falsehoods.

The interests that the media have vary. There

are some media that obviously have what we might

call the bona fide and legitimate concerns of promoting the interests of the representative

democracy we are talking about and there are others

who may have all sorts of other interests to

pursue. It should not be assumed that their only

interest is the pursuit of truth or enlightenment

or the preservation of representative democracy.

One can say why could not Mr Ruxton in the present

case be asked by the defendant in relation to his

letter to say, "If you want to say something about

Mr Theophanous's views on the proposed new device

of a quota system along the American lines, why

don't you say something about that. We're not too

keen on publishing this sort of material." When

Theophanous 14/9/93

one looks at the publication, it is quite obvious

why they did not say that. If you look at the way

they laid it out, it is quite obvious why they did

not send it back for some comment on his policies.

We would also submit, 5.4, that the defence of

fair comment provides a more than adequate

protection. There is no restriction on

non-defamatory comment about the activities of the

plaintiff and the discharge of his public duty and

there is thus a total difference between this case

and statutory bans on political advertising.	We
also point out that there is no reason to
differentiate between the rights of members of

Parliament and the rights of citizens. We say the

distinction between public anticipation and

non-anticipation of a federal election is an

unworkable test.

We point out at 5.6 that, as Your Honour

Justice Brennan pointed out in the Mabo case, great care need to be exercised in extending the

boundaries of the common law so as not to, as

Your Honour put it, fracture the skeleton of

principle which gives the body of our law its shape

and internal consistency.

We point out at 5.7, the public official

defence is unique to the First Amendment, and in

5.8 we stress - this is important in terms of what

we might call a policy consideration - that the

adoption of these concepts in the United States has

not clarified or simplified defamation law. It has
led to a wilderness of decisions, particularly
enormous focus in cases in all the courts,
including the Supreme Court, constantly on whether

a person falls on one side of the line or the other

and thus this undue influence, we would submit, on

the characterization of the plaintiff in a

particular instance.

We refer to the passage from American

jurisprudence, the cumulative supplement, which is

the digest that sets out in a few pages some

hundreds of cases, and we have put up some examples

there of public figures: the primary school

wrestling coach; the children of the Rosenbergs who

had been defendants in the espionage trial 25 years

previously; the author of an article concerning the

use of dolphins for military purposes; and, a

professional jockey.	We picked those out at random
but there are an enormous number of instances.	The

problem of the increasing complexity of the law is

discussed in detail in Iowa Law Review. Can I

commend to Your Honours the article, "The Public

Figure Plaintiff v The Nonmedia Defendant in

Theophanous 85 14/9/93

Defamation Law: Balancing the Respective

Interests", in 68 Iowa Law Review.

Can I also draw Your Honours' attention to a

lengthy list of articles on the problems associated

with the American position, which is in our list of

authorities. We have not put it in this document

but our list of authorities contains at its end a
lengthy list of commentary on the operation of the

American system. In our respectful submission, the virtues that our learned friends have claimed for

it are far from obvious. We say at paragraph 5.9,

the real mischief is not the creation of a new set

of questions but that attention is diverted from

the proper question of principle to a marginal

question of status.	As I have said earlier, the
common law rule does not a priori principle.	We
say reliance on constitutional principle will

operate very rigidly, at page 37, and at 5.12 we

point out that a considered decision on the

question of the common law position - paragraph 13
of our learned friend's defence - if it be called

for, is called for after a proper trial and after

appellate consideration. It may be that the matter

will ultimately come for consideration before this

Court, but it has not yet.

We have repeated at 5.13 the point about

parliamentarians. At 5.14 we point out that the

adoption of a Bill of Rights is complex, it should

be the subject of extensive public debate and

comprehensive drafting to ensure the balance

between conflicting rights. One model we simply

point to as illustrating the difficulties is

embodied in the report of the Advisory Committee on

Individual and Democratic Rights. Another one is to be found - can I give

Your Honours a reference, it is not in our list -

in an article by Geoffrey Goldsworthy, "A

Constitutional Protection of Rights", that is an

essay in a book edited by Craven, 1992, called

"Australian Federation", chapter 5. That essay is

chapter 5 and deals with some of those

difficulties. We point out the variety of models

which our learned friend, I think, has pointed to.

we also draw attention - again, this is not in

our list - to the Issues paper No 20 of the

Queensland Electoral and Administrative Review

Commission.

BRENNAN J:	What for?
MR CASTAN:	As illustrating the vast range of problems

associated with this conception of constitutional

Theophanous 86 14/9/93

rights and embodiment of protection of individual

rights and freedoms.

BRENNAN J:	I am sure there are.
MR CASTAN:	We simply seek to draw attention.  If

Your Honours are otherwise attracted to what my

learned friend said, then Your Honours should

consider those difficulties.

In relation to Canada, we point out in passing

that Canada has an override provision. There is an

interesting example of the compromises that are

struck. The provinces and the federal government

can override the operation of provisions of the

Charter in certain circumstances by express

statutory enactment, and that is a model that may,
in some circumstances, be appropriate for

Australia.

At paragraph 5.17 on page 40 we conclude with

a number of examples, and I will not trouble

Your Honours with those. But there are real problems associated with what our learned friend is

saying: how far does the freedom go? How broad is

his public interest area?	How much concern is
there for private lives?	Much of this emerged in
debate this morning.

DEANE J:  Mr Castan, what, on your argument would you say if

the State of Victoria abolished all defences in

defamation actions? Would that law be valid and

consistent with the Commonwealth Constitution,

treating, of course, truth as a defence?

MR CASTAN: If it abolished all defences it would be -

DEANE J: Leaving only the common law right of action.

MR CASTAN: Abolished the common law?

DEANE J: Abolished all defences.
MR CASTAN:	Do I take Your Honour's question to include

perhaps the defence of absolute privilege?

DEANE J: Forget about section 44 or 45, or whatever the

constitutional provision is.

MR CASTAN:	I was thinking of whether Your Honour would assume that it would abolish defences - - -
DEANE J:	You have a simple law that says, "There shall be

no defence to an action in defamation, apart from

denial of the defamatory nature of the

publication".

Theophanous 87 14/9/93

MR CASTAN:  I am not sure that that raises the abolition of

the defences.

McHUGH J:  The Post and Telegraphs Act used to contain a

section which made it an offence to publish a

defamatory statement. Full Stop. More than to

publish it, but to send a letter containing a

defamatory statement. There were no defences to

it. I do not know whether it still does.

MR CASTAN: 

If we are dealing with statutory provisions,

then my answer is that it is relevant to apply to
those statutory provisions a test of whether or not
they are consistent with the functioning of
representative democracy in Australia. That is the
only relevant question constitutionally that
arises, in terms of the matters that are being here

debated. That is the test that would be applied to

a statute. Is it inconsistent? I am not sure
that - I think my answer to Your Honour's question,

though one would need to think through the various

defences and then how that would work, assuming

they were abolished, but if the defences were
abolished, then it is difficult to see how that
would impede the functioning of representative

democracy, in which case, we would say that it has

nothing to do with constitutional validity.

BRENNAN J: 

The result, of course, would be that there would be no defence to an action on a defamatory

statement, no matter how true it was and no matter

how much in the public interest it was.

MR CASTAN:  Yes. It would be necessary. I hesitate,

Your Honour, because I am endeavouring to think

through how it would affect what we would submit is
the correct test to be applied from the existing

authorities which is how it would affect the

functioning of the concept of representative

democracy, and it may be that when one thinks

through the way in which such a statute would

operate, that the answer is that if it meets that

sort of criterion, it runs up against that which

this Court dealt with.

DAWSON J:	Your are saying, Mr Castan, that the federal Constitution would operate as a restriction on
State power?
MR CASTAN:	If the State law had the effect of impeding or

interfering with the operation of that system which

is constituted - - -

DAWSON J:  The answer lies in the Commonwealth passing

legislation to protect its own legislative

processes, not in seeing some restriction on State

Theophanous 88 14/9/93

legislative power by implication of the

Constitution, surely?

MR CASTAN:  Yes, well I think that - - -

DEANE J: Well, that might be the answer some might give,

but it is not a self-evident - - -

MR CASTAN:  I think the answer that we would give - and I

suspect there will be differing answers from those

seeking to intervene in these proceedings - is that

if that law functioned in a way which meant that

the processes of representative democracy could not

effectively, or were relevantly impeded, it would

run foul of those principles that have been

enunciated by this Court. In other words, that a

State law that contravened those principles, that

impeded the functioning - one contested with a

different example, if I have followed Your Honour's

directions - - -

DAWSON J: But, that is, surely, inconsistent with the way

you are putting your argument. You were saying the

so-called right was an implied prohibition on further and saying it is an implied prohibition on

State legislative power.

MR CASTAN:  We do not need, for the purposes of this case,

in any event

DAWSON J:	I know you do not, but that was your answer.
CASTAN J: Yes.	I do not want to be heard, for the purposes

of this case, to necessarily confine it to

Commonwealth power, and no doubt others will put

the views of the States. We do not have a State

statutory situation in our case. But one could

imagine the difficulties even more highly

exemplified - - -

DAWSON J: But then you are erecting it; it is something

like a guarantee which you are denying.

MR CASTAN:  No, Your Honour, all I say is that there is a

limitation on power. The question is whether that limit is a limit only on Commonwealth power; those

powers conferred on the Commonwealth at Federation,

or whether the States themselves - their

legislative and their law-making powers, not what

we have put - is not inconsistent with the kind of

limitations also being imposed on States.	As I
say, we do not have to engage in that - - -

DAWSON J: But you do if you are asked the question.

Theophanous 89 14/9/93

MR CASTAN:  Yes, precisely, and I have given my answer, but

in seeking to -

DEANE J: Except you may have to go a bit further, you see,

because the next question would be, if there is

something wrong in the State law, after that

repealing statute, in so far as the Constitution is

concerned: is the common law action for defamation

invalid in the context where the defences have

gone? Why pick on the Act that, by its general

application, abolishes all offences instead of

saying the resulting cause of action cannot apply

within the Commonwealth constitutional field?

MR CASTAN: For the reasons we gave when I commenced my

address to Your Honours, that there is built into

the Constitution the concept of a limitation on the

operation of legislative power - query State and

Commonwealth or Commonwealth only - but it is that

concept that underlies it. In our respectful

submission, it would operate on State powers as

well.

DEANE J: But that is obviously not so. For example, the

Constitution by establishing the Commonwealth

Parliament, which did not even exist, automatically

excludes the application of State defamation laws

to everything said in the Commonwealth Parliament.

That is a limitation of the application of the

common law which necessarily follows from the very
operation of the Constitution, quite apart from

section 45.

MR CASTAN:	And it is precisely the example I was searching for but could not find earlier when I said that
there may be some common law principle or doctrine
or situation which yields to the express words of the Constitution as common law principles would
yield to the express words of a statute.

McHUGH J: Let me give you a more difficult illustration.

Supposing State Parliament abolished the defence of

fair report of parliamentary proceedings so that

you could not publish a report of federal

Parliament if it contained defamatory material,

would that infringe the constitutional guarantee in

any way?

MR CASTAN: In our respectful submission, no, Your Honour.

You could still report it.

McHUGH J:	You could not report a defamatory statement.
MR CASTAN:	You could report it by only reporting it if it

is true, or you could report it and decide that it

was in your interests to carry a certain economic

burden because the money to be made from reporting

Theophanous 90 14/9/93

these things is more than what it costs you to pay

defamation actions. I have not even touched on

what we call the economic analysis of defamation

which also is an element to be taken into account

in evaluating this. But the reality, of course, is

that defamation is merely one component of the

economic balance for media defendants. It is not

simply a question of freedom of speech or limiting

their right to publish.	They may frequently choose
to publish.

This very case may illustrate the kind of instance where a good headline with a picture of

Bruce Ruxton is worth $20,000 or $30,000, whatever

a figure might be in Victoria. Those kinds of

judgments might well be made.

McHUGH J: Less tax.

MR CASTAN:  Less tax. One should not assume that there

is - - -

BRENNAN J:  The law does not operate that way, surely,

Mr Castan. In terms of whether or not a

publication is lawful or not, it is not going to

engage in some consideration of the economics of

publishing defamatory matter.

MR CASTAN:  Your Honour, in contemplating the questions as

they have been posed to me, which is to say, what

is the effect of changes in the law which render a

particular defendant vulnerable to a greater or

lesser degree by taking away either all of or some

of or some component of a particular defence that

is available, in our respectful submission, it is

highly relevant. What have been posed are

hypotheticals about adaptation by statute of

defences and then the effect of that on this

supposed constitutional protection. In our

respectful submission, it should not be assumed, in

asking that question or in deriving the answer,

that those are the only considerations; that this

is dealt with by the defendant concerned, who then

loses a particular defence in some vacuum.

True they lose some defence, they retain some

other defence, or alternatively, on the other

model, they lose all defences, in which case they

have to become that much more careful or carry that

much more of the economic burden.

In our respectful submission, when the

question is posed in the way it has been in the
hypothetical context, it is highly relevant. It is
not the case that defamation, from the point of

view of the media defendant, is solely evaluated in

the context of some abstract right. The assumption

Theophanous 91 14/9/93

in the question is that they will not be able to publish and therefore there is the inhibition on

freedom of speech, but that does not necessarily

flow at all. That may be so in some instances and

it may - - -

BRENNAN J:  I must confess, if the extent of lawful

publication is such as to preclude the publication

of the proceedings of the national Parliament, then

it seems to me we have gone a long way to saying

that what was said in Nationwide News can be torn

up. I mean, I can think of a number of other

answers to it, but not the one, surely, that is

economically feasible to do it.

MR CASTAN:  As I indicated, Your Honours, the test as we

would submit it, the test is the question is that
with which I responded to Justice Deane, and that

is that one applies the test of whether or not the

functioning of the system of representative

democracy is harmed by the result of the abolition

of the particular defence. Posed in terms of the

reporting of parliamentary proceedings, if it were

addressed specifically to that - - -

BRENNAN J:  How would you distinguish the hypothesis put to

you by Justice Deane from the law that was struck

down in Nationwide News?

MR CASTAN:  The one that poses the possibility of their

being no defences in the substance?

BRENNAN J: Yes. Prohibiting the publication of truthful,

defamatory matter.	How is that distinguishable
from Nationwide News?

MR CASTAN:  I think the answer to that question is that when

one comes to, and I stress again, comes to analyse

it by reference, not to the existence of some

freedom, but by reference to whether or not under

that regime there will be the relevant effect on
the functioning of representative democracy, I

think the answer is that one would conclude that it

does have that effect. But, that is because one

poses the correct test rather than seek to embody

some artificial doctrine. We are looking at State

statutes and we are looking at - - -

BRENNAN J: Well, I do not suppose Melbourne Corporation

operates only one way, does it?

MR CASTAN: No. It would - - -

BRENNAN J:  I mean, surely a State cannot pass a law which

interferes with the operation of central

Commonwealth instrumentalities?

Theophanous 92 14/9/93

MR CASTAN:  Yes, and the answer I gave, Your Honour, and I

would maintain it, though I, as I said before, it

is not essential to the arguments we present, but

the answer I gave was that we would respectfully

submit that the State statute would be subject to

the constitutional limitation, if there is the

relevant constitutional - if the test is met. We

have not submitted as part of our case that a State

statute is immune from any such constitutional

criterion. That is not part of our case - - -

DAWSON J: But the Melbourne Corporation doctrine is a

different one to some implied guarantee operating

on the State's legislation.

MR CASTAN:  Yes, it is, but nevertheless we -

DAWSON J: It obviously does work both ways.

MR CASTAN:  Yes, but we would maintain the position that if

one arrived at that hypothetical situation the

relevant State statute - one can pose a more

dramatic example. One could have a State statute

which specifically provided that for two months

before any federal election, or from the time of

declaration of a federal election, there should be

no comment in the State on election matters.	One
can -

DAWSON J:  And that would clearly be invalid on a broader

basis than freedom of speech. It would be an

interference with a governmental function, it is

another agency.

MR CASTAN: Ultimately, we would respectfully submit, it is

the same kind of question.

DAWSON J: Yes, similar.

MR CASTAN:  It is the same question because ultimately that

is the -

DAWSON J: But a different constitutional base.

MR CASTAN: Yes, because the State would be - we would

approach it as being a constitutional question and

very much a Nationwide News question. A State that

passed a law, an even more dramatic law, say, than

that which was dealt with would, in our respectful

submission, be subject to the constitutional

constraint. But I know that there are some who
will want to have something to say that is

different to that in Court today, but that is the

position we would take, although, as I say, it is

not necessary for the purpose of citing this case.

It may be raised in a more pertinent way in the

other matter, the Western Australian matter.

Theophanous 93 14/9/93

Your Honours, I was about to conclude, but I

should draw Your Honours' attention to page 44 of

the application book. It contains the summons

which has been made returnable, I understand by

direction of Your Honour the Chief Justice, and

then settled by the Registrar. A summons was

formulated so that the question of the pleading in

paragraphs 11 and 12 would be before the Court in a

direct way as well as by reference to answers to

questions and - - -

McHUGH J:  How do we answer this question - by a General

Steele's type test, or are these questions - - -

MR CASTAN: It is raised in Question 4 as, "Can these

pleadings stand?" In our respectful submission, it

is an easy case here because it is clearly not

arguable, as we would submit. So applying that

General Steele's principle one gets there even on

that test.

McHUGH J: Is that the test we apply?

MR CASTAN:  I think the matter of law having been raised,

yes, it would have to be dealt with on that basis,

Your Honour, raised here as a question of law at

this stage of the proceedings and coming to this

Court while the proceedings are on foot.	I think
that is right, Your Honour.

DEANE J: Well, surely when everybody is here and we are all

here, it would be a terrible waste of resources if we did not face the question, instead of saying it

is arguable.

MR CASTAN:  I do not suggest Your Honour should not answer

it.

DEANE J:  I think you were giving a little bit too much away

there.	You said that you have got to, in effect,
show that it is not arguable.	I would have thought
it is enough if you show that it is wrong.

MR CASTAN: Well, as was said by, I think it was

Sir Garfield, that some points require lengthy

debate in order to demonstrate - - -

DEANE J: But His Honour was sitting alone.

MR CASTAN:  Of course. deal with it with short argument and know that it And before this tribunal, one can

will be disposed of. If Your Honours please.

Theophanous	94	14/9/93
MASON CJ:	Thank you, Mr Castan.	The Court will adjourn now

until 10.15 am tomorrow.

AT 4.16 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 15 SEPTEMBER 1993

Theophanous 95 14/9/93