Theophanous v The Commonwealth

[2005] HCATrans 616

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M22 of 2005

B e t w e e n -
ANDREW CHARLES THEOPHANOUS
Plaintiff
and
COMMONWEALTH OF AUSTRALIA
Defendant

For mention

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 26 AUGUST 2005, AT 9.36 AM

(Continued from 9/6/05)

MR G. ZINDILIS: If it please your Honour, I appear on behalf of the plaintiff, Mr Theophanous. (instructed by Zindilis Barristers & Solicitors)

MS N. NICOLAU: I appear on behalf of the defendant. (instructed by Australian Government Solicitor)

HIS HONOUR: The matter was last before me on 9 June 2005 when there was discussion about the form that a stated case might take. There was discussion on that occasion about the need to identify those facts which the parties would assert were the relevant constitutional facts. The parties have now submitted an agreed form of case stated. I am prepared to state a case in the form submitted by the parties. If the parties together would be good enough to prepare an engrossed copy of the case stated for me to execute, I will do that and the matter will then proceed in the ordinary way to a hearing. I am not yet in a position to say to the parties when a hearing might be expected. If the costs of today were made costs in the cause, is that the appropriate course to adopt?

MS NICOLAU: I think so.

HIS HONOUR: Then I will adjourn.

AT 9.38 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

Theophanous v The Commonwealth concerned a dispute between Dr. Aris Theophanous and the Commonwealth of Australia. Dr. Theophanous alleged that the Commonwealth had breached his constitutional rights by enacting legislation that permitted the disclosure of his confidential information to a foreign government. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the *Migration Legislation Amendment Act (No. 6) 1999* (Cth) (the Act) was invalid because it contravened an implied freedom of political communication protected by the Australian Constitution. Specifically, the Court had to determine if the Act, by authorising the disclosure of information obtained under the *Migration Act 1958* (Cth) to a foreign government for the purpose of enforcing foreign laws, impermissibly burdened the implied freedom.

Hayne J, in his judgment, considered the scope of the implied freedom of political communication. His Honour noted that this freedom is not absolute and can be limited by laws that are reasonably appropriate and adapted to serve a legitimate purpose in a democratic society. However, Hayne J found that the Act, in its broad authorisation of disclosure without sufficient safeguards or limitations, went beyond what was reasonably necessary to achieve any legitimate governmental purpose and therefore impermissibly infringed the implied freedom of political communication. The reasoning focused on the potential for such broad disclosure to chill legitimate political discourse and inhibit the free exchange of information relevant to public affairs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established