The Registrar of the Western Australian Industrial Relations Commission v The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers Union of Australia, Engineering and.. - [1999] WASCA 170

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT

CITATION: THE REGISTRAR OF THE WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION -v- THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING and ALLIED WORKERS UNION OF AUSTRALIA, ENGINEERING and ELECTRICAL DIVISION WA BRANCH [1999] WASCA 170

CORAM: KENNEDY J (Presiding Judge)
ANDERSON J
SCOTT J

HEARD: 1 OCTOBER 1998

DELIVERED : 9 SEPTEMBER 1999

FILE NO/S: IAC 8 of 1998

BETWEEN: THE REGISTRAR OF THE WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Appellant
AND
THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING and ALLIED WORKERS UNION OF AUSTRALIA, ENGINEERING and ELECTRICAL DIVISION WA BRANCH
Respondent

Catchwords:

Industrial relations (WA) - Appeal - Application by Registrar to President of Western Australian Industrial Relations Commission pursuant to Industrial Relations Act 1979, s 97Q - Whether appeal by Registrar from decision of President competent

Industrial relations (WA) - Regulation of political expenditure by organizations - Industrial Relations Act 1979, s 97P - Whether infringing freedom of political communication

Legislation:

Industrial Relations Act 1979 (WA), s 97P, s 97Q

Result:

Appeal allowed
Decision of President quashed
Matter remitted to President for reconsideration

Representation:

Counsel:

Appellant:     Mr R J Meadows QC & Ms J H Smith
Respondent:     Mr P W Johnston & Mr N D Pope
Intervener:     Mr R J Meadows QC & Ms J H Smith

Solicitors:

Appellant:     State Crown Solicitor
Respondent:     Dwyer Durack
Intervener:     State Crown Solicitor

Case(s) referred to in judgment(s):

Amalgamated Society of Railway Servants v Osborne [1910] AC 87
Australian Capital Television Pty Ltd v The Commonwealth of Australia (1992) 177 CLR 106
Buckley v Valeo 96 SCt 612 (1976)
Federal Election Commission v Massachusetts Citizens for Life Inc 107 SCt 616 (1986)
Kruger v The Commonwealth (1997) 190 CLR 1
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Levy v The State of Victors & Ors (1997) 189 CLR 579
McGinty v The State of Western Australia (1996) 186 CLR 140
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
Oil, Chemical and Atomic Workers' International Union v Imperial Oil Ltd (1964) 41 DLR (2d) 1
Pipefitters Local Union No 562 v United States 92 SCt 2247 (1972)
R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13
R v Forbes; ex parte Bevan (1972) 127 CLR 1
Reference re Alberta Statutes [1938] SCR 100
Retail, Wholesale & Department Store Union v Dolphin Delivery Ltd (1986) 33 DLR (4th) 174
Robe River Iron Associates v Federated Engine Drivers and Firemen's Union (1986) 67 WAIG 315
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211
Theophanous v The Herald & Weekly Times Ltd (1994) 182 CLR 104
True v The Australian Coal and Shale Employees Federation Union of Workers WA Branch (1949) 51 WALR 73
Williams v Hursey (1959) 103 CLR 30

Case(s) also cited:

Castlemaine Toohey Ltd v South Australia (1990) 169 CLR 436
Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316
Kierath v Western Australian Builders Labourers Painters and Plumbers Union (1997) 75 IR 127
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
R v Smithers; ex parte Benson (1912) 16 CLR 99

KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Scott J, with which I am generally in agreement, and desire only to make some additional observations of my own.
The initiating application by the appellant, the Registrar of the Western Australian Industrial Relations Commission ("the Registrar"), was made pursuant to s 97Q of the Industrial Relations Act 1979 ("the Act") on the ground that r 15.2.7.2 of the Rules of the respondent was contrary to, or inconsistent with, s 97P(4) of the Act. Section 97Q finds its place in Pt VIC of the Act, which is headed "Political Expenditure by Organizations". This section deals with the rules of organizations. It is in the following terms:
"Within 12 months of the coming into operation of section 15 of the Labour Relations Legislation Amendment Act 1997 the Registrar shall review the rules of each organization and shall, by application pursuant to this section, bring before the President the rules of any organization if, in the opinion of the Registrar, any of those rules is contrary to or inconsistent with section 97P."
On its face, s 97Q merely requires the Registrar, if, after a review of the rules of an organization, he or she is of the opinion that any of those rules is contrary to or inconsistent with s 97P, "by application pursuant to this section", to "bring before the President" the rules of the organization. This section confers no specific powers upon the President. The relevant powers are, in my opinion, to be found in s 66. That section empowers, amongst others, the Registrar, of his own motion, to apply to the President for an order or direction under the section. The relevant order which was sought in this instance was an order under s 66(2)(a) to disallow a rule of the respondent which, "in the opinion of the President - (i) is contrary to or inconsistent with any Act …". In my view, therefore, s 97Q requires the Registrar to make an application under that section, but the order to be sought in that application will be an order under s 66(2)(a).
I am unable to accept the respondent's argument that the Registrar is restricted to "bringing the rules before the President". Nor do I consider that the Registrar's function can be described merely as administrative and not adversarial, with the claimed consequence that the Registrar, having made the application, has discharged, and therefore exhausted, his or her function under the section. The functions of the Registrar under the Act are many and varied in nature. In this instance, the Registrar having initiated proceedings before the Commission, he was a party to those proceedings pursuant to s 29B of the Act. By s 90(2)(a) of the Act, the Registrar, as a party to the proceedings, had a right of appeal.
Although the State Attorney General was an intervener in the appeal, he had no right of appeal because he was not an intervener in the initial proceedings in which the decision appealed from was made- see s 90(2)(b).
The Commission, including the President, has no inherent jurisdiction - see Robe River Iron Associates v Federated Engine Drivers and Firemen's Union (1986) 67 WAIG 315, applying R v Forbes; ex parte Bevan (1972) 127 CLR 1. There being no jurisdiction to do so conferred upon him by the Act, the President had no power to declare invalid any legislation of the Western Australian Parliament. Furthermore, it should be observed that, in this case, the State was not a party to the proceedings. It was, however, accepted that, subject to any appeal, it was open to the President to make an order dismissing the Registrar's application in the event of his reaching the conclusion that Pt VIC of the Act was invalid.
A further submission of the respondent was that, as a policy matter relevant to the construction of the Act, it was undesirable for a person subject to the Commission's direction actively to participate in an appeal. Reliance for this contention was placed upon R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, at 35 ‑ 36. In my opinion, that decision has no application to the present case. At 35 ‑ 36, Gibbs, Stephen, Mason, Aickin and Wilson JJ said:
"There is one final matter. Mr Hughes was instructed by the Tribunal to take the unusual course of contesting the prosecutor's case for relief and this he did by presenting a substantive argument. In cases of this kind the usual course is for a Tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this court is not one which we would wish to encourage. If a Tribunal becomes a protagonist in this court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this court by a Tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal."
The relevant tribunal in this case was constituted by the President. The Registrar, as already indicated, was merely a party to the proceedings before the President.
In introducing the provisions of Pt VIC of the Act in 1997, the Minister for Labour Relations described its purpose as follows:
"By their origins and nature, unions have the right to speak and act on matters of political concern or interest. The Bill does not interfere with that freedom nor affect the unions engaging in activities to lobby or criticise a Government or political party through advertisements etc.
However, unions also enjoy a unique monopolistic position in the industrial relations system in that they are the only recognised bodies which can represent the industrial interests of workers under the legislation. Although individuals may join unions to gain their support on industrial issues, it is quite another matter to believe that every member supports his or her payments to the union being donated to a political party or candidate of the choice of the union's leadership. Although the fundamental policy objective of giving individual members a greater say in making such decisions and requiring union leaders to be more accountable to their members for such decisions remains, the approach in the former Bill has been significantly modified as a result of the TLC's recent consultations on the issue."
Industrial organizations of employees and employers, where the employees and employers are associated for the purpose of protecting or furthering their respective interests, may be registered under the Act. The requirements attaching to organizations seeking registration are set out in s 55. By s 60(1), an organization shall, upon and during registration, become and be, for the purposes of the Act, a body corporate. By s 60(2), a registered organization is given the powers usually conferred on a body corporate. Upon and after registration, an organization and its members for the time being are made subject to the jurisdiction of the Industrial Appeal Court and the Commission and to the Act. Subject to the Act, all its members are bound by the rules of the organization during the continuance of their membership - see s 61. The President is given power to deal with complaints by members, past members, unsuccessful applicants for membership and by the Registrar, acting on the complaint of, or on behalf of, a member or past member, or of his own motion - see s 66. Organizations are the creatures of the Act, and they are governed by the Act.
By s 97P, where it is necessary for the purposes of the section, an organization is required to maintain a separate fund as a political fund. If the organization receives an amount from any of its members to be applied by way of political expenditure, the organization is required to credit the amount to a political fund and it is prohibited from crediting any moneys to a political fund other than moneys so received or interest or other amounts earned or derived from the investment of moneys standing to the credit of the fund and, in particular, it is prohibited from crediting any moneys from a member's subscriptions to a political fund. It is further prohibited from making any payment of political expenditure other than from moneys already standing to the credit of a political fund. If an organization receives an amount from any of its members to be applied for political expenditure, and that amount is received subject to a direction from the member as to the political party or parties, or election candidate or candidates, to or in respect of which or whom the organization may pay or apply the amount, the organization is prohibited from making any payment contrary to that direction.
Pt VIC of the Act is by no means novel in its terms. The long and varied history of legislation in relation to political expenditure by employees' organizations in the United Kingdom, the United States of America, Canada and New Zealand is discussed in K D Ewing, Trade Unions, The Labour Party and The Law : A Study of the Trade Union Act 1913 (1982).
In the United Kingdom, the House of Lords in Amalgamated Society of Railway Servants v Osborne [1910] AC 87 decided that rules giving trade unions the power to levy contributions from members for the purpose of securing Parliamentary representation were ultra vires and illegal. As a result, the Trade Union Act 1913 was enacted to confer upon trade unions a statutory right to make political expenditures. That Act was substantially amended by the Disputes and Trade Unions Act 1927, which sought to regulate the political expenditure of trade unions in a manner similar to Pt VIC of our Act. Section 4 of the 1927 Act introduced "contracting in" provisions, which required trade unions to collect political contributions by means of a separate and distinct levy and prohibited them from transferring any assets, other than the money raised by the political levy, to their political funds. This provision was repealed in 1946. By s 71 of the Trade Union and Labour Relations (Consolidation) Act 1992, trade unions were required to maintain a separate political fund out of which to make payments in furtherance of political objects. It also provided for the exemption of any member who did not wish to contribute to such a fund.
It is to be noted that in True v The Australian Coal and Shale Employees Federation Union of Workers WA Branch (1949) 51 WALR 73, Dwyer CJ followed the decision of the House of Lords in Amalgamated Society of Railway Servants v Osborne (supra). However, in Williams v Hursey (1959) 103 CLR 30, the High Court distinguished the decision of the House of Lords and upheld the validity of a compulsory political levy as being within the power of a union.
In New Zealand, s 3 of the Political Disabilities Removal Act 1960 gave members of trade unions a statutory right of exemption from the obligation to pay political levies.
In Canada, a number of the Provinces have regulated political expenditure by organizations - see the Labour Relations Act 1960 (British Columbia), Electoral Finance Reform Act 1975 (Ontario), Contributions Disclosure Act 1977 (Alberta) and Finance of Political Parties Act 1977 (Quebec). In Oil, Chemical and Atomic Workers' International Union v Imperial Oil Ltd (1964) 41 DLR (2d) 1, the Supreme Court of Canada held the British Columbian legislation to be a valid provincial law under s 92 of the British North America Act 1867 (Imp), on the basis that it was a law with respect to "property and civil rights", in that it protected the individual rights of the union member by providing that he could not be compelled to assist in the financial promotion of political causes with which he disagreed.
The position in the United States of America has been significantly affected by the First Amendment to the United States Constitution concerning freedom of speech. The Labour Management Relations ("Taft-Hartley") Act 1947 prohibited expenditure by unions on federal elections. It was held in Pipefitters Local Union No 562 v United States 92 SCt 2247 (1972) that the prohibition did not apply if the union's political funds were financed by the voluntary donations of its members.
In Buckley v Valeo 96 SCt 612 (1976), the majority of the Supreme Court, comprising Justices O'Douglas, Brennan, Stewart and Powell, drew a distinction between limitations on the expenditure by political candidates and limitations on contributions to political candidates. At 634 ‑ 635, the majority said:
"A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate's increasing dependence on television, radio and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech."
At 635, the court said:
"By contrast with a limitation upon expenditures for political expression, a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributors' ability to engage in political communication. A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of the contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing."
The decision in Buckley v Valeo was referred to by McHugh J in Australian Capital Television Pty Ltd v The Commonwealth of Australia (1992) 177 CLR 106.
In Federal Election Commission v Massachusetts Citizens for Life Inc 107 SCt 616 (1986), the Supreme Court, in a judgment delivered by Brennan J, held that the Federal Election Campaign Act was an unjustified and invalid burden on the right of free speech to the extent that it regulated the political expenditure of organizations formed for political purposes. However, with regard to industrial organizations, the court said at 629:
"The Commission next argues in support of 441b that it prevents an organization from using an individual's money for purposes that an individual may not support. We acknowledged the legitimacy of this concern as to the dissenting stockholder and union member in National Right to Work Committee 459 US at 208, 103 SCt at 559, and in Pipefitters, 407 US at 414 ‑ 415, 92 SCt at 2264. But such persons, as noted, contribute investment funds or union dues for economic gain, and do not necessarily authorise the use of their money for political ends. Furthermore, because such individuals depend on the organization for income or for a job, it is not enough to tell them that any unhappiness with the use of their money can be redressed simply by leaving the corporation or the union. It was thus wholly reasonable for Congress to require the establishment of a separate political fund to which persons can make voluntary contributions."
The first of the recent decisions of the High Court relating to the implication from the Commonwealth and State Constitutions of a right to freedom of public discussion of political and economic matters was Nationwide News Pty Ltd v Wills (1992) 177 CLR 1. At 47, Brennan J said:
"To sustain a representative democracy embodying the principles prescribed by the Constitution, freedom of public discussion of political and economic matters is essential: it would be a parody of democracy to confer on the people a power to choose their Parliament but to deny the freedom of public discussion from which the people derive their political judgments. I respectfully agree with Lord Simon of Glaisdale when he said in Attorney-General v Times Newspapers:
'The first public interest involved is that of freedom of discussion in democratic society. People cannot adequately influence the decisions which affect their lives unless they can be adequately informed on facts and arguments relevant to the decisions. Much of such fact-finding and argumentation necessarily has to be conducted vicariously, the public press being a principal instrument.'
Freedom of public discussion of government (including the institutions and agencies of government) is not merely a desirable political privilege; it is inherent in the idea of a representative democracy." (footnotes omitted)

Having discussed the Canadian cases of Retail, Wholesale & Department Store Union v Dolphin Delivery Ltd (1986) 33 DLR (4th) 174 and Reference re Alberta Statutes [1938] SCR 100, Brennan J said, at 50:
"By parity of reasoning, the representative democracy ordained by our Constitution carries with it a comparable freedom for the Australian people and that freedom circumscribes the legislative powers conferred on the Parliament by the Constitution. No law of the Commonwealth can restrict the freedom of the Australian people to discuss governments and political matters unless the law is enacted to fulfil a legitimate purpose and the restriction is appropriate and adapted to the fulfilment of that purpose."
See also Deane and Toohey JJ at 69 ‑ 77.
In this case, the High Court held s 299(1)(d)(ii) of the Industrial Relations Act 1988 (Cth), making it an offence by writing or speech to use words "calculated … to bring a member of the (Industrial Relations) Commission or the Commission into disrepute", to be invalid.
The reasons for decision in the Nationwide News Pty Ltd case were delivered on the same day as those in Australian Capital Television Pty Ltd v The Commonwealth (supra), in which the High Court, by a majority comprising Mason CJ, Deane, Toohey and Gaudron JJ, held Pt IIID of the Broadcasting Act 1942 (Cth), prohibiting the broadcasting of political matters during an election period, to be invalid. At 145, Mason CJ said:
"The raison d'être of freedom of communication in relation to public affairs and political discussion is to enhance the political process (which embraces the electoral process and the workings of Parliament), thus making representative government efficacious."
See also Mason CJ at 142 ‑ 144.
At 150, Brennan J said:
"It is convenient in the context of Pt IIID to speak of the implied limitation as a freedom of communication, for the terms are reciprocal: the extent of any relevant limitation of legislative power is the scope of the relevant freedom. But, unlike freedoms conferred by a Bill of Rights in the American model, the freedom cannot be understood as a personal right the scope of which must be ascertained in order to discover what is left for legislative regulation; rather, it is a freedom of the kind for which section 92 of the Constitution provides: an immunity consequent on a limitation of legislative power. The power cannot be exercised to impair unduly the freedom of informed political discussion which is essential to the maintenance of a system of representative government. Whether that freedom is regarded as an incident of the individual right to vote or as inherent in the system of representative and responsible government prescribed by Ch I of the Constitution, it limits the legislative powers otherwise conferred on the Parliament. The freedom begins at a boundary varying with the subject matter of each law." (footnote omitted)
In Theophanous v The Herald & Weekly Times Ltd (1994) 182 CLR 104, at 124 ‑ 125, Mason CJ, Toohey and Gaudron JJ referred to the concept of political discussion. They said:
"For present purposes, it is sufficient to say that "political discussion" includes discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office. The concept also includes discussion of the political views and public conduct of persons who are engaged in activites that have become the subject of political debate, eg, trade union leaders, Aboriginal political leaders, political and economic commentators. Indeed, in our view, the concept is not exhausted by political publications and addresses which are calculated to influence choices. Barendt [Freedom of Speech (1985), 152] states that:
" 'political speech' refers to all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about."
It was this idea which Mason CJ endeavoured to capture when, in Australian Capital Television, he referred to "public affairs" as a subject protected by the freedom.
A similar view has been advocated by Alexander Meiklejohn [Political Freedom of Speech (1960), 4]. He says freedom of speech:
"is assured only to speech which bears, directly or indirectly, upon issues with which voters have to deal - only, therefore, to the consideration of matters of public interest. Private speech or private interest in speech, on the other hand, has no claim whatsoever to the protection of the First Amendment."
Thus, he distinguishes between commercial speech - "a merchant advertising his wares" - and speech on matters of public concern. The problem is, of course, that what is ordinarily private speech may develop into speech on a matter of public concern with a change in content, emphasis or context. That conclusion is not inconsistent with the proposition that speech which is simply aimed at selling goods and services and enhancing profit-making activities will ordinarily fall outside the area of constitutional protection. Commercial speech without political content "says nothing about how people are governed or how they should govern themselves"." (footnotes omitted)
The judgment in Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211, was delivered on the same day as that in Theophanous v Herald & Weekly Times Ltd. At 233 ‑ 234, Mason CJ, Toohey and Gaudron JJ, discussing s 73 of the Constitution Act 1889 (WA), said:
"We do not consider that section 73 provides a foundation for any suggestion that the Western Australian Constitution contemplates the possibility that it will be amended in such a way that representative democracy will be abolished. On the contrary, s 73(2) was plainly enacted with the object of reinforcing representative democracy and placing a further constitutional impediment in the way of any attempt to weaken representative democracy. And, so long, at least, as the Western Australian Constitution continues to provide for a representative democracy in which the members of the legislature are "directly chosen by the people", a freedom of communication must necessarily be implied in that Constitution, just as it is implied in the Commonwealth Constitution, in order to protect the efficacious working of representative democracy and government."
See also McGinty v The State of Western Australia (1996) 186 CLR 140, in which the majority of the High Court held that the Western Australian Constitution contained no implication affecting disparities of voting power among the holders of the franchise for the election of members of the State Legislative Council.
A difficulty with the decisions in both Theophanous and Stephens was that in Theophanous Deane J, although he joined with Mason CJ, Toohey and Gaudron JJ in holding that the defences were good in law, took a view of the scope of the freedom which was significantly different from that of Mason CJ, Toohey and Gaudron JJ. Nevertheless, he considered that the appropriate course for him to follow was to lend his support to the answers given by Mason CJ, Toohey and Gaudron JJ. He did not, however, expressly agree with their reasoning. Similarly, in Stephens, there was an identical division of opinion amongst the Justices of the High Court. One again, Deane J simply concurred in the answers which Mason CJ, Toohey and Gaudron JJ gave. Although in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, the High Court, as then constituted, in a joint judgment, indicated that Theophanous and Stephens should be accepted as deciding that, in Australia, the common law rules of defamation must conform to the requirements of the Constitution, they were satisfied that "some of the expressions and reasoning" in the various judgments in Theophanous and Stephens should be further considered in order to settle both constitutional doctrine and the contemporary common law for Australia governing the defence of qualified privilege in actions of libel and slander. At 557, their Honours said:
"Sections 7 and 24 of the Constitution, read in context, require the members of the Senate and the House of Representatives to be directly chosen at periodic elections by the people of the States and of the Commonwealth respectively. This requirement embraces all that is necessary to effectuate the free election of representatives at periodic elections. What is involved in the people directly choosing their representatives at periodic elections, however, can be understood only by reference to the system of representative and responsible government to which sections 7 and 24 and other sections of the Constitution give effect."
At 559, they said:
"Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates by directing that the members of the House of Representatives and the Senate shall be "directly chosen by the people" of the Commonwealth and the States, respectively. At federation, representative government was understood to mean a system of government where the people in free elections elected their representatives to the legislative chamber which occupies the most powerful position in the political system." (footnote omitted)
At 560 ‑ 561, their Honours said:
"Communications concerning political or government matters between the electors and the elected representatives, between the electors and the candidates for election and between the electors themselves were central to the system of representative government, as it was understood at federation. While the system of representative government which the Constitution provides does not expressly mention freedom of communication, it can hardly be doubted, given the history of representative government and the holding of elections under that system in Australia prior to federation, that the elections for which the Constitution provides were intended to be free elections in the sense explained by Birch [Representative and Responsible Government (1964), 17]. Furthermore, because the choice given by ss 7 and 24 must be a true choice with "an opportunity to gain an appreciation of the available alternatives", as Dawson J pointed out in Australian Capital Television Pty Ltd v The Commonwealth, legislative power cannot support an absolute denial of access by the people to relevant information about the functioning of government in Australia and about the policies of political parties and candidates for election.
That being so, ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors. Those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power. As Deane J said in Theophanous, they are "a limitation or confinement of laws and powers [which] gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a 'right' in the strict sense". In Cunliffe v The Commonwealth, Brennan J pointed out that the freedom confers no rights on individuals and, to the extent that the freedom rests upon implication, that implication defines the nature and extent of the freedom. His Honour said:
"The implication is negative in nature: it invalidates laws and consequently creates an area of immunity from legal control, particularly from legislative control."
If the freedom is to effectively serve the purpose of ss 7 and 24 and related sections, it cannot be confined to the election period. Most of the matters necessary to enable "the people" to make an informed choice will occur during the period between the holding of one, and the calling of the next, election. If the freedom to receive and disseminate information were confined to election periods, the electors would be deprived of the greater part of the information necessary to make an effective choice at the election." (footnotes omitted)
At 561 ‑ 562, they continued:
"However, the freedom of communication which the Constitution protects is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution. The freedom of communication required by ss 7 and 24 and reinforced by the sections concerning responsible government and the amendment of the Constitution operates as a restriction on legislative power. However, the freedom will not invalidate a law enacted to satisfy some other legitimate end if the law satisfies two conditions. The first condition is that the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government or the procedure for submitting a proposed amendment to the Constitution to the informed decision of the people which the Constitution prescribes. The second is that the law is reasonably appropriate and adapted to achieving that legitimate object or end. Different formulae have been used by members of this Court in other cases to express the test whether the freedom provided by the Constitution has been infringed. Some judges have expressed the test as whether the law is reasonably appropriate and adapted to the fulfilment of a legitimate purpose. Others have favoured different expressions, including proportionality. In the context of the questions raised by the case stated, there is no need to distinguish these concepts. For ease of expression, throughout these reasons we have used the formulation of reasonably appropriate and adapted." (footnote omitted)
At 567 ‑ 568, their Honours said:
"When a law of a State or federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution, two questions must be answered before the validity of the law can be determined. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by section 128 for submitting a proposed amendment of the Constitution to the informed decision of the people. If the first question is answered "Yes" and the second is answered "No", the law is invalid." (footnotes omitted)
At 571, they said:
"…. [T]his Court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion - the giving and receiving of information - about government and political matters."
As was pointed out by the Solicitor General, the terms, operation and effect of s 97P(4) of the Act do not prevent or impair the respondent from communicating about any particular political matter. Nor do they prevent or impair any mode of communication or an organization or its members having access to the media. There is nothing to prevent an organization from expending the subscriptions of its members, or any other of its funds, on political communication by the organization itself or any of its officers or members. An organization can, for example, advertise in relation to any election. It can advocate to the public and to its members the supporting of a particular political party or candidate, and it can campaign against proposed legislation.
Even if the first question which was identified in Lange v Australian Broadcasting Commission is answered in the affirmative, then, in my view, any impairment is indirect, and incidental to the purpose of Pt VIC, which is designed to give individual members of organizations a greater say in their decisions to support a particular political party, and requiring organizations to be more accountable to their members in this respect.
As the Solicitor General also pointed out, registered organizations are the only bodies which can represent the interests of employees and employers under the Act, and their ability to fund political donations from members' donations and levies may properly be regulated, to the legitimate end that any levies imposed by an organization and intended to be applied by way of political expenditure should be raised in a manner which ensures that the purpose of the levy is known to its members and agreed to by them.
It is noted that the learned President found that the prohibition on the use of membership subscriptions burdened or inhibited the respondent and its members from participating through its federal counterpart or the Trades and Labour Council in the expression of opinion in election campaigns. However, s 97P of the Act applies only to organizations registered under the Act. It has no application to the respondent's federal counterpart. Moreover, there is nothing to indicate that the Trades and Labour Council is a "political party" as defined in s 97N(1) of the Act so as to be affected by s 97P. It is sufficiently clear that the only prohibition against making payments to the Trades and Labour Council or to the federal counterpart of the respondent is where the payment is made on an understanding that it will be applied as "political expenditure" as defined in s 97N.
It follows that I would allow this appeal. I am in agreement with the further orders proposed by Scott J.

ANDERSON J: I have had the advantage of reading in draft the reasons for judgment of Kennedy J and Scott J. For the reasons expressed in those judgments, I agree that the appeal should be allowed. I agree with the other orders proposed by Scott J.
SCOTT J: The appellant, the Registrar of the Western Australian Industrial Relations Commission, pursuant to the provisions of s97Q of the Industrial Relations Act 1979 ("the Industrial Relations Act") has a specific statutory responsibility. Under that provision he is required to review the rules of each organisation within twelve months of the coming into operation of s15 of the Labour RelationsLegislation Amendment Act 1997 and he is required by application pursuant to the section to bring before the President the rules of any organisation if, in his opinion, any of those rules are contrary to, or inconsistent with s97P. This appeal is from a decision of the learned President folowing such an application in relation to the respondent's rules.
The learned President at the completion of the matter concluded his findings as follows:
"I find sections 97O and 97P(4) of the Act entirely invalid and, insofar as they support and enable the implementation and enforcement of those provisions, I also find invalid sections 97N, 97R, 97S, 97T and 97U. I find 97N and 97P of the Act, insofar as they restrict the political fund to the sources prescribed therein as invalid. I find sections 97Q, 97R, 97S, 97T and 97U of the Act, insofar as they require that the President disallow the subject rules or that penalties be imposed or other actions taken in relation to such invalid provisions also invalid."
It is argued by counsel for the respondent that the Registrar had exhausted his powers in relation to this matter once he brought the rules of the organisation before the President for consideration. It was submitted that having done so, the Registrar's function was completed so that no right of appeal reposed in him. It was said that in taking that action under s97Q of the Industrial Relations Act, he was exercising an administrative and not a judicial function and as a consequence once the rules had been brought before the learned President, the Registrar had no further role to play. It follows, said counsel for the respondent, that the Registrar would have no right of appeal.

It is to be noted that there is a mirror provision in the Industrial Relations Act under s66(7) which is expressed to be limited to "orders or directions under this section". It is therefore argued that s66 has no application to this case and it is said that the Registrar has no right of appeal and that in turn, this Court, therefore, has no jurisdiction to hear the matter.
In my opinion, that argument is misconceived. The Registrar is by statute made a party to the application under s97Q and is authorised by statute to bring the application. Whilst it is fair to say that he is not an adversarial party, he is, in a very real sense, a representative party who is granted by statute the right to bring an application under the Industrial Relations Act. That being the case, in my view, such appellate rights as attached to litigants under this statute equally attach to the Registrar in these circumstances.
The error in the respondent's reasoning can be demonstrated by the fact that it is conceded that the respondent could bring an appeal against the findings of the learned President but it is said that the respondent would be the only party who could do so. That, in my submission, illustrates the fallacy in the proposition. The Industrial Relations Act clearly envisages that there will be at least two parties to each application and that any party adversely affected by a decision may bring an appeal. (see s90 of the Industrial Relations Act). It is sufficient to dispose of this point to conclude that the Registrar is a party who has the right of appeal in this case.
Section 97P is under the heading "Political Donations by Organisations" and provides:
"97P(1) An organisation shall, if necessary for the purpose of this section, maintain a separate fund as a political fund.
(2)If an organisation receives an amount from any of its members to be applied by way of political expenditure, the organisation shall credit the amount to a political fund.
(3)If an organisation receives any interest or other amount earned or derived from the investment of moneys standing to the credit of a political fund, the organisation shall credit the interest or other amount to that political fund.
(4)An organisation shall not credit any moneys to a political fund other than moneys referred to in subsection (2) or (3) and, in particular, shall not credit any moneys from a member's subscriptions to a political fund.
(5)An organisation shall not make any payment by way of political expenditure except from moneys already standing to the credit of a political fund.
(6)If -
(a)an organisation receives an amount from any of its members to be applied for political expenditure; and
(b)that amount is received subject to a direction from the member as to the political party or parties, or election candidate or election candidates, to or in respect of which or whom the organisation may pay or apply the amount,
the organisation shall not make any payment from moneys in a political fund derived from that amount if the payment would be contrary to that direction."
These sections are contained within Part VI C of the Industrial Relations Act 1979 headed "Political Expenditure by Organisations". That section commences with a number of definitions:
"'political fund' in relation to an organisation, means a fund maintained by the organisation under section 97P(1);
'political party' means a body corporate or other body or organisation having as one of its objects or activities the promotion of the election of election candidates endorsed by it.
The definition section, s 97N, provides in subpara (2):
"97N(2)political expenditure is -
(a)making a payment to a political party (whether by way of a membership subscription or affiliation fee or in any other manner);
(b)making a payment to an election candidate or a group of election candidates;
(c)paying expenses directly or indirectly incurred by a political party;
(d)paying expenses directly or indirectly incurred in connection with a parliamentary election by an election candidate or a group of election candidates; or
(e)making a payment to a person on the understanding that that person or other person will directly or indirectly apply the whole or a part of the payment in a way mentioned in paragraphs (a), (b), (c) or (d)."
Pursuant to the powers contained in s97Q, the Registrar, within the time limit imposed, brought before the President certain of the rules of the respondent and in particular r15.2.1, which prescribes the respondent organisation funds and as to what they are to consist of.
Rule 15.2.7.1 specifically confers the power on the respondent organisation "to establish funds for sustenance of members involved in industrial disputes, or for particular or industrial political campaigns."
Rule 15.2.7.1 empowers the respondent to establish a separate and distinct fund to be used to pay for, or for contributions to, the expense of political campaigns.
Rule 15.2.7.2 provides that moneys paid into funds referred to in r15.2.7.1 must not be paid from the Union's general fund into a special fund, except by the specific decision of the State Conference or Council.
For the purpose of the hearing in the Industrial Commission, it was conceded that the provisions of these specific rules were, "contrary to, or inconsistent with s97P" as provided in s97Q, set out earlier in these reasons. The powers of the learned President, once the application had been brought by the Registrar in accordance with the statutory provisions, are to be found in s66 of the Industrial Relations Act which provides:
"66(1)The following persons may apply to the President for an order or direction under this section -
(a)a person who is or has been a member of an organization; or
(b)a person who has applied for and not been admitted to membership in an organization; or
(c)the Registrar acting on the complaint of or on behalf of a person referred to in paragraph (a) or of his own motion.
(2)On an application made pursuant to this section, the President may make such order or give such directions relating to the rules of the organization, their observance or non-observance or the manner of their observance, either generally or in the particular case, as he considers to be appropriate and without limiting the generality of the foregoing may -
(a)disallow any rule which, in the opinion of the President -
(i)is contrary to or inconsistent with any Act or law, or an award, industrial agreement, order or direction made, registered or given under this Act;
(ii)is tyrannical or oppressive;
(iii)prevents or hinders any member of the organization from observing the law or the provisions of an award, industrial agreement, order or direction made, registered or given under this Act;
(iv)imposes unreasonable conditions upon the membership of a member or upon an applicant for membership; or
(v)is inconsistent with the democratic control of the organization by its members;
(b)instead of disallowing a rule under paragraph (a), direct the organization to alter that rule within a specified time in such manner as the President may direct;
(c)disallow any rule which has not been altered by the organization after a direction to do so pursuant to paragraph (b);
(ca)where the President disallows any rule under paragraph (a) or (c), give such directions as the President considers necessary to remedy, rectify, reverse or alter or to validate or give effect to, any act, matter or thing that has been done in pursuance of the disallowed rule;
(d)declare the true interpretation of any rule;
(e)inquire into any election for an office in the organization if it is alleged that there has been an irregularity in connection with that election and make such orders and give such directions as the President considers necessary -
(i)to cure the irregularity including rectifying the register of members of the organization; or
(ii)to remedy or alter any direct or indirect consequence thereof;
and
(f)in connection with an inquiry under paragraph (e)
(i)give such directions as the President considers necessary to the Registrar or to any other person in relation to ballot papers, envelopes, lists, or other documents of any kind relating to the election;
(ii)order that any person named in the order shall or shall not, as the case may be, for such period as the President considers reasonable in the circumstances and specifies in the order, act or continue to act in and be deemed to hold an office to which the inquiry relates;
(iii)declare any act done in connection with the election to be void or validate any act so done.
(3)The decision of the President shall be signed and delivered by him.
(4)Any person to whom an order or direction given or made under this section applies shall comply with that order or direction whether or not it is contrary to or inconsistent with any rule of the organization concerned.
(6)A rule disallowed pursuant to subsection (2)(a) or (c) is void.
(7)When 6 months have elapsed after the coming into operation of section 51 of the Industrial Legislation Amendment Act 1995 the Registrar shall review the rules of each organization and shall, by application pursuant to this section, bring before the President the rules of any organization if, in the opinion of the Registrar, any such rule is contrary to or inconsistent with section 64A or 64B.
(9)The power of the President under subsection (2)(d) may, on a reference made under section 27(1)(u), be exercised by the Full Bench."
It is to be noted from that section, that the President has the power to disallow any rule if in his opinion it is contrary to, or inconsistent with, any Act.
It was pursuant to this statutory regime that the provisions of the respondent's rules fell for consideration by the learned President.
In the result, the learned President, in dealing with the examination, came to the conclusion that ss97O and 97P(4) of the Industrial Relations Act were "entirely invalid". In addition, he concluded that "insofar as they support and enable the implementation and enforcement of those provisions, I also find invalid section 97N, section 97R, section 97S, section 97T and section 97U."
The learned President also found:
"Section 97N and section 97P of the Act, insofar as they restrict the political fund to the sources prescribed therein, as invalid. I find section 97Q, 97R, 97S, 97T and 97U of the Act, insofar as they require that the President disallow the subject rules or that penalties be imposed or other actions taken in relation to such invalid provisions, also invalid."
In concluding his reasons as to the basis of invalidity, the learned President said:
"Those provisions to which I have referred represent a curtailment of the protected freedom by the exercise of legislative power. (Whether the legislation is exceptional or otherwise because of section 109 of the Constitution or for any other reason was not argued before me.)
I have not, on this occasion, been persuaded that the requirement that a political fund be created, from which 'political expenditure' is made, is a cause to find invalidity. Further, I am not persuaded on this occasion, that a similar flaw exists in the provision for industrial organisations' members to have 'political donations' credited to the political fund or paid from it as directed. (A difficulty might arise if identification of donors deterred potential member donors, but I make no judgment on that.)
Such 'donations' are very different from monies provided by members and intended to be the funds of and to be used by the organisation to which the members belong. The same comment applies to the use of the interest on income derived from the funds.
Applying the test which I have enunciated above, I would not find those provisions invalid to that extent.
Insofar as the burden lay upon the respondent organisation to establish that provisions of the Act were invalid in the face of the implied constitutional right, then, on the evidence which I accepted and for the reasons which I have given above, the respondent organisation has so established it."
Having thus ruled certain of the provisions of the Act invalid, the learned President came to the conclusion that as a consequence he had no jurisdiction to disallow the subject rules which had been brought before him by the Registrar for consideration.
The end result was that the learned President came to the conclusion that the rules would stand but that the provisions of the Act to which I have referred should be struck down. The reasons of the learned President in reaching those conclusions will be discussed later.
It is to be noted, however, that nowhere within s66 of the Industrial Relations Act (set out earlier in these reasons) is the learned President empowered to strike down sections of the Act.
Whilst it may be that the orders made by the learned President were beyond his powers, it is conceded by senior counsel for the appellant that it was open to the learned President to make an order dismissing the application after coming to the view that Part VI C was invalid. For that reason it is necessary to examine this matter on its merits.
The grounds of appeal are:
"1The Learned President erred in law in failing to disallow the rules of the Respondent in the terms suggested by the Applicant.
2The Learned President erred in law in holding that the whole of Part VI C of the Industrial Relations Act, 1979 ('the Act') infringes the implied constitutional limitation which prohibits the curtailment of discussion or communication about matters of government and politics ('the implied limitation') and is therefore invalid.
Particulars
The Learned President wrongly held that Part VI C effectively burdens the Respondent's freedom of communication about government or political matters; and
The Learned President should have held that Part VI C is reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.
3The Learned President erred in law in holding that Part VI C directly or indirectly prohibits or inhibits the Respondent from applying monies to the Trades and Labour Council of Western Australia or the Respondent's federal counterpart body.
4The Learned President erred in law in holding that Part VI C effectively prevents the Respondent from functioning as an organization.
5Further and in the alternative to grounds 1,2,3 and 4, the Learned President erred in law in holding the whole of Part VI C of the Act invalid when the President held that only part of the provisions In Part VI C of the Act burdened the Respondent's freedom of communication about government or political matters.
Particulars
The Learned President, having held that:
(a)the creation of a separate political fund under Section 97P(1), (2), (3) & (5) of the Act was not a burden on the Respondent;
(b)the requirement in Section 97P(6) of the Act to disburse payments from the political fund in accordance with the members direction was not a burden on the Respondent; and
(c)Section 97N and 97P of the Act were invalid only in so far as the provisions restrict the political fund to the sources prescribed therein,
should have held that the invalidity was only to the limited extent which he had identified."
In dealing with the application, the learned President applied the decision of Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ at 567:
"When a law of a State or Federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by ss7, 24, 64 or 128 of the Constitution, two questions must be answered before the validity of the law can be determined. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect (271)? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of a constitutionally prescribed system of representative and responsible government and procedure prescribed by section 128 for submitting a proposed amendment of the Constitution to the informed decision of the people (272) hereafter collectively 'the system of government prescribed by the Constitution'? If the first question is answered 'yes' and the second question is answered 'no', the law is invalid."
Those two tests are accepted as the law to be applied in testing the legislation which the respondent would seek to have impugned in this case. It is common ground between senior counsel for the appellant and counsel for the respondent that these two tests from the Lange case are the appropriate tests to apply in this instance. It is how those tests are to be applied, and the end result of the application of them, which reveal the differences between the parties.
In considering the application of the tests to the respondent's rules, it is to be noted that before the learned President it was conceded that the respondent's rules were in breach of the section. That concession was withdrawn at the hearing of this appeal, although counsel for the respondent indicated that whilst no such admission was made, the matter should proceed on the basis that the rules concerned were in breach of the section. As I understand the position, counsel for the respondent was reserving the right, at some later date, to argue for the validity of the rules.
With that background, it is necessary to turn to consider the various cases that have applied the "Lange" test and to see where this legislation fits in relation to the principles that have emerged applying those tests.
The first thing to be noted about s97P of the Industrial Relations Act is that it is directed towards the proper and responsible maintenance of the funds of organisations. The section requires the organisation to credit any amount received to a political fund and to credit interest on any such amount to the political fund. As I understand the argument advanced by counsel for the respondent, the central challenge arises out of the provision of s97P(4) which prohibits any organisation from crediting money to a political fund from members subscriptions.
It is common cause that prior to the insertion of Part VI C into the Industrial Relations Act, organisations such as the respondent made donations to political funds from members' subscriptions. It is therefore said that the restriction imposed by s97P(4) prohibits the respondent from taking part in political activities in that way.
As was pointed out during the course of argument, a literal reading of the section would require the organisation to maintain either in separate bank accounts or more probably separate accounting entries in relation to funds contributed to the credit of each political party to which funds were contributed by members.
It was argued by counsel for the respondent that the impugned provisions infringed the implied constitutional limitation in relation to laws limiting discussion or communications about matters of government and politics thus causing the first question in the Lange case to be answered in the affirmative. Counsel for the respondent also submitted that the provisions do not serve a "legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government" so that the second question in the Langetest should also be answered "no", thus invalidating the law.

The first issue that arises is to analyse the nature of the provisions themselves. It is to be noted that the effect of s97P is not to prohibit the donation to a political fund from money properly held by an organisation such as the respondent. That is of course subject to the observation that s97P(4) does prevent the use of member's subscriptions in that way. The section however, contemplates that a separate fund should be created and maintained as a political fund and that amounts received from members should be credited to that fund. It follows that there is no blanket prohibition which would prevent donations flowing from the organisation to a political party.
In analysing these provisions, it is constructive to look at other cases which have been considered applying the same principles. In Levy v The State of Victors & Ors (1997) 189 CLR 579, the court was concerned to examine the provisions of the Wildlife (Game)( Hunting Season) Regulations 1994 (VIC).
The basis of the challenge by the plaintiff in that case was succinctly set out in the judgment of Dawson J at 605:
"The plaintiff has for a number of years campaigned against duck shooting in Victoria and he claims to have entered the permitted hunting area in question during the weekend for a number of purposes: to gather evidence of the cruelty associated with duck shooting and of the killing of protected birds by duck shooters; to draw public attention by television coverage an other means to duck shooting; to debate and criticise those policies of the Victorian Government and laws of the Victorian Parliament which permit duck shooting; to be seen rendering aid to and collecting injured birds; to prevent the shooting of protected birds; to protest in general about duck shooting; and to ensure that the people of Victoria could form and exercise informed political judgments about the stance of the Victorian Government in relation to duck shooting.
The plaintiff claims that the regulation under which he was charged prevented him from pursuing these purposes, at least in the way in which he wished to do so, and was invalid because it contravened an implied freedom of communication said to be conferred by the Commonwealth Constitution and the Constitution Act 1975 (Vict)."
The contrary argument was expressed to be that the defendants claimed that the regulations were directed towards ensuring a greater degree of safety of persons in hunting areas and so was within the legislative power of the Victorian Parliament.
Levy's case was complicated by the fact that media organisations and other industrial organisations sought leave to make submissions as intervenors or amicus curiae.
Brennan CJ held at 599:
"The further amended statement of claim contains no ground for challenging the truthfulness of the declaration in regulation 1(a) that the objectivity of the Hunting Season Regulations was the ensuring of a greater degree of safety of persons in hunting areas during the 1994 open season. Accepting that objective, reg 5 contains provisions that were appropriate and adapted to its fulfilment. It follows that, even if reg 5 had the effect of impairing a freedom to discuss government or politics implied in the Constitution of the Commonwealth, it was not invalidated by the implication."
Dawson J held at 608:
"Free elections do not require the absence of regulation. Indeed, regulation of the electoral process is necessary in order that it may operate effectively or not at all. Not only that, but some limitations upon freedom of communication are necessary to ensure the proper working of any electoral system. Apart from regulation of the electoral process itself, elections must take place within the framework of an ordered society and regulation which is directed at producing and maintaining such a framework will not be inconsistent with the free elections contemplated by the Constitution notwithstanding that it may incidentally affect freedom of communication. In other words, the freedom of communication which the Constitution protects against laws which would inhibit is a freedom which is commensurate with reasonable regulation in the interest of an ordered society.
The regulation of which the plaintiff complains may on its face be regarded as reasonable in the interests of an ordered society in that, considered in the light of its objective of achieving a greater degree of safety of persons in hunting areas during the open season for duck in 1994, it is clearly concerned with the maintenance of order in a situation where the interests of duck shooters and others who would be present in the hunting areas (and they would most likely be protesters) may conflict. Whilst the plaintiff may have been prevented from making his protest in a manner which would have achieved maximum publicity and to that extent the regulation in question may have curtailed freedom of communication to a degree, it was to a degree which was reasonable in an orderly society and hence consistent with the free elections which the Constitution requires."
Toohey and Gummow JJ said at 614:
"On the other hand, the Regulations imposed no general prohibition or regulation of communication or discussion. Nor is there a likelihood that the prohibitions they did impose involved a significant curtailment of the constitutional freedom of the political communication and discussion. In particular, reg 5, under which the plaintiff has been prosecuted, imposed prohibitions which were strictly limited in place and time. The operation of reg 5 is long since spent. The purpose of reg 5 was to ensure a greater degree of safety of all persons in the waters of permitted hunting areas at the commencement of open season 1994. Any impairment of the constitutional freedom was incidental to the achievement of that purpose."
Gaudron, McHugh and Kirby JJ also upheld the validity of the regulation in that case.
Mc Hugh J at 624 expressed his view in this way:
"However, the freedom from laws that would burden constitutionally protected communications or the opportunity to make or send them is not absolute. The freedom is limited to what is necessary to the effective working of the Constitution's system of representative and responsible government. Consequently, a law that is reasonably appropriate and adapted to serving an end that is compatible with the maintenance of the constitutional prescribed system of government will not infringe the constitutional implication."
In Australian Capital Television Pty Ltd v The Commonwealth of Australia (1992) 177 CLR 106, the High Court examined the provisions of Broadcasting Act 1942 (Cth) which prohibited the broadcasting of certain materials other than "exempt matter" during an election period. "Exempt matter" was matter having no connection, or no significant connection with political advertisements or political information. In that case, Mason CJ, Deane, Toohey and Gaudron JJ held that the relevant part of the legislation "was wholly invalid on the ground that it infringed the right to freedom of communication on matters relevant to political discussion that was implied in the system of representative government for which the Constitution provided." In that case it is apparent that the relevant provisions which were sought to be impugned were directly aimed at the curtailment of political discussion. Whilst that was a direct consequence of the legislation under challenge in that case, the same cannot be said here. In this case, there is nothing about the provisions presently under consideration which would in any way directly impinge upon "political discussion" in that sense.
The matter was also discussed in Theophanous v The Herald & Weekly Times Ltd (1994) 182 CLR 104 which involved defamation proceedings in the County Court of Melbourne against the Herald and Weekly Times in respect of a letter written to that newspaper. In that case the majority, Mason CJ, Toohey and Gaudron JJ (with whom Deane J agreed) said at 124:
"For present purposes, it is sufficient to say that 'political discussion' includes discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office. The concept also includes discussion of the political views and public conduct of persons who are engaged in activities that have become the subject of political debate, eg trade union leaders, Aboriginal political leaders, political and economic commentators. Indeed, in our view, the concept is not exhausted by political publications and addresses which are calculated to influence choices."
It is accepted that freedom of communication is a wider concept than merely written, verbal or electronic communication. See Australian Capital Television v The Commonwealth (supra) per Mason CJ at 139:
"Freedom of communication in relation to public affairs and political discussion cannot be confined to communications between elected representatives and candidates for election on the one hand and the electorate on the other. The efficacy of representative government depends also upon free communication on such matters between all persons, groups and other bodies in the community. That is because individual judgment, whether that of the elector, the representative or the candidate, on so many issues turns upon free public discussion in the media of the views of all interested persons, groups and bodies and on public participation in, and access to, that discussion. In truth, in a representative democracy, public participation in political discussion is a central element of the political process."
I turn finally to Kruger v The Commonwealth (1997) 190 CLR 1 where Gaudron J said at 115-116:
"Modern means of communication notwithstanding, freedom of political communication between citizen and citizen and between citizens and their elected representatives entails, at the very least, freedom on the part of citizens to associate with those who wish to communicate information and ideas with respect to political matters and those who wish to listen. It also entails the right to communicate with elected representatives who 'have a responsibility not only to ascertain the views of the electorate but also to explain and account for their decisions and actions in government and to inform people so that they may make informed judgments on relevant matters'."
Similarly, in the same case, McHugh J said at 142:
"The reasons that led to the drawing of the implication of freedom of communication lead me to the conclusion that the Constitution also necessarily implies that 'the people' must be free from laws that prevent them from associating with other persons, and from travelling, inside and outside Australia for the purpose of the constitutionally prescribed system of government and referendum procedure. The implication of freedom from laws preventing association and travel must extend, at the very least, to such matters as voting for, or supporting or opposing the election of, candidates for membership of the Senate and House of Representatives, monitoring the performance of and petitioning federal Ministers and parliamentarians and voting in referenda."
Having thus analysed the authorities, it is then necessary to see how those principles apply in this case. The starting point is to examine the purpose of the provisions which the learned President held were invalid. In my opinion, those provisions are directed towards ensuring fiscal responsibility on the part of the organisations responsible for accepting political donations from members. The provisions do not prevent the respondent from making political donations in accordance with the wishes of members, expressed in the terms expressed or implied of the political donations. What the provisions do, is to require the respondent to account separately for the donations received so that ultimately they are directed towards the political organisation, if any, nominated by the individual member. The provisions prevent the organisation itself from using members' funds for the purpose of making direct political donations to a party selected by the organisation. In my opinion, such a law is a fiscal measure designed to ensure proper accountability with respect to the wishes of members in relation to political donations. It is significant to note that the provisions apply to any "organisation" subject to the Industrial Relations Act so that it equally applies to both employer and employee organisations.
Applying the first of the two steps arising out of the Langecase (supra) it is my opinion that these provisions do not effectively burden freedom of communication about government or political matters either in its terms, operation or effect. It is my view of these provisions, as I have said, that they are essentially fiscal provisions aimed at ensuring that money contributed by the organisations' members is properly accounted for and dealt with in accordance with the wishes of the members rather than by the will of the organisation.
Although it is unnecessary therefore to look to the second aspect of the Lange test, in case I am wrong on the first aspect of the test, I have also reached the conclusion that these provisions are reasonably appropriate and adapted to serve a legitimate end, namely, ensuring the fiscal responsibility of the organisation concerned. The provisions thus construed are compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.
For these reasons I would allow the appeal and order that the matter be remitted to the learned President with a direction to reconsider the rules of the respondent in the light of these reasons and to determine that issue according to law.
I would hear the parties as to any further or other consequential orders required to achieve that end.