Unions NSW & Ors v State of New South Wales
[2022] HCATrans 203
[2022] HCATrans 203
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S98 of 2022
B e t w e e n -
UNIONS NSW
First Plaintiff
NEW SOUTH WALES NURSES AND MIDWIVES’ ASSOCIATION
Second Plaintiff
PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS’ ASSOCIATION AMALGAMATED UNION OF NEW SOUTH WALES
Third Plaintiff
NEW SOUTH WALES LOCAL GOVERNMENT, CLERICAL, ADMINISTRATIVE, ENERGY, AIRLINES & UTILITIES UNION
Fourth Plaintiff
and
STATE OF NEW SOUTH WALES
Defendant
KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 16 NOVEMBER 2022, AT 10.00 AM
Copyright in the High Court of Australia
____________________
MR J.T. GLEESON, SC: May it please the Court, I appear with MR N.J. OWENS, SC and MS C.G. WINNETT for the plaintiffs. (instructed by Gilbert + Tobin)
MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend MR B.K. LIM for the defendant. (instructed by Crown Solicitor (NSW))
MR S.P. DONAGHUE, KC Solicitor‑General of the Commonwealth of Australia: May it please your Honours, I appear with MS S. ZELEZNIKOW and MR S.N. RAJANAYAGAM for the Commonwealth Attorney‑General Intervening (instructed by Australian Government Solicitor)
KIEFEL CJ: The parties have been advised that the Court will be assisted by hearing argument on the preliminary point regarding question 1A in the amended special case.
MR GLEESON: Yes, your Honour.
KIEFEL CJ: Yes. Thanks, Mr Gleeson.
MR GLEESON: So, I will do that immediately, your Honour. That question is found in the amended special case at page 4285, tab 15 of the supplementary special case book. Could I proceed in this order: firstly, to identify the matter and the standing which the plaintiffs had at the date the date the proceedings were
commenced – and that will require me to go to a small amount of material in the special case to show the way in which the burden was asserted by the plaintiffs; then I will argue that the passing of the amending Act does not destroy the matter or the standing; and finally, I will argue that the utility of declaration remains in the face of the amending Act, if that is a convenient order, your Honours.
As to the matter at the date the proceedings were commenced – on 29June – it can be described this way. It is the controversy between the plaintiffs and the State of New South Wales whether section 35 of the Electoral Funding Act 2018, as in force from July 2018 and continuing, was and remained a valid law of New South Wales, having regard to the Constitution (Cth).
Can I emphasise these aspects of the matter and the standing at that date. If your Honours have section 35, which is in the joint book of authorities, volume 1, tab 4, page 116, that provision imposes a norm of conduct backed by a heavy criminal sanction under section 143, page 168, which includes prison and substantial fines. It imposes it upon only one category of persons in the contest of ideas protected by the Constitution, being third‑party campaigners which, as defined on page 89 in section 4, are identified by exclusion. First of all, they are not candidates, parties or groups; and then by scale, they seek to spend more than $2,000 in electoral expenditure during a capped electoral period.
Turning to section 35, it operates in any case where there is a valid underlying expenditure cap under section 29. The present case establishes that, in the period up to the proceedings, there were five by‑elections where the cap under section 29(11) burdened third‑party campaigners, there was one local government election where the relevant cap burdened third‑party campaigners, and the burden existed in respect of the 2019 election, at least up until after this Court delivered the decision in Unions NSW (No 2).
Now, the standing of plaintiffs as asserted can be found in the latest iteration of the Statement of Claim, which is in the supplementary book at tab 12, particularly at paragraphs 109 and following. The plaintiffs assert they:
did not engage any coordinated campaigning with the Affiliated Unions during the capped State expenditure period –
in respect to those elections I have mentioned. And, in 110, they assert the reason was they feared it otherwise could cause them to contravene the criminal law. That leads to the assertions at paragraph 123 to 125 of standing. Taking them in turn, section 123 speaks for itself and is denied by the State. As to 124, the plaintiffs assert of standing arose on two bases, firstly, because – I am taking first section 29(11), but the point will be similar – section 29(11) had had an effect:
on their expenditure and campaigning –
in past elections and was likely to have an effect:
in respect of future –
elections. In the defence, 124(a) is denied and 124(b) is admitted. What seems to lie behind that distinction is then apparent, because when we come to 125, which is the critical one, the standing asserted is respect to the effect section 35 has had on expenditure and campaigning in past elections, and then the effect it is likely to have in the future, particularly if materially re-enacted. The defendants have denied the whole of 125.
What seems to lie behind that is a proposition that, although the defendants accept we had standing when we filed, we did not have it in the whole sense that we contend for it; we only had it because of an assertion of a likelihood that the impugned provisions might affect our future behaviour. So, the defendant, New South Wales, denied, as a matter of law, that a person has standing where you come to the Court and say, my freedom has been impugned to date in respect to a law which I submit is invalid and I seek a declaration under the Constitution. The defendant says that is not enough to establish standing. You can only have standing to the extent you fear something happening in the future.
So, one difference between the parties is, we submit we had the standing at the date of filing for both the past and the future aspect of our conduct. It will follow from that, that when section 35 is repealed, it does not remove our standing in respect to the past aspect of our conduct.
GAGELER J: Mr Gleeson, how was the defence pleaded in relation to the earlier iteration of this pleading?
MR GLEESON: It is similar.
GAGELER J: Thank you.
MR GLEESON: So, the next step I want to show is what the special case has established about the past effect of the law on the conduct of the plaintiffs which, we submit, gave them standing and continues to give them this standing. If your Honours, within this document – that is the further amended – sorry, within the further amended special case, which is tab 15.
GORDON J: Can I just ask this. When you talk about past effect of the law are you talking about the past effect of 35 consistent with what is in 125 of your statement of claim?
MR GLEESON: Yes.
GORDON J: Thank you.
EDELMAN J: Does it follow from that submission that standing will always arise, then, if there are past effects, even without future effects?
MR GLEESON: It has to be a past effect in respect to an interest recognised by the law. So, in Ainsworth the interest is reputation. In M68 the interest is liberty. In Croome the interest is the ability to conduct one’s personal life as ‑ ‑ ‑
KIEFEL CJ: But each of those have consequences.
MR GLEESON: Each of those has a consequence, which the law recognises, and we accept that as well. In the present case, the material I want to come to as to the consequence is that in the period leading up to the passing of the 2018 law the plaintiffs engaged in coordinated campaigning, as they were lawfully entitled to do. Following the law, they refrained from engaging in that activity, which was otherwise free to them to do, because of a fear of the criminal law descending upon them.
By reason of them refraining the people were denied the benefit of communications which they were entitled to receive under the Constitution. So, there was a consequence for the plaintiffs as third‑party campaigners, and there was a consequence for the people who have the benefit of the implied freedom that they were denied these communications. Those are the things that have happened in the past.
The controversy between the plaintiffs and New South Wales was and remains, did that section 35 lawfully impose that restriction upon them and deny those communications to the people? That controversy remains on the pleadings because, if your Honours have the latest iteration of the defence, which is at tab 13, in paragraphs 137 onwards, New South Wales continues to assert that section 35 was a valid law and could validly impose all of those consequences upon the plaintiff.
So, if I could just flesh out the factual aspect of that submission and then come to the legal aspects of it. The special case at tab 15 establishes, in terms of the conduct prior to the law, between paragraphs 23 to 34, there was “coordinated campaigning” in the 2015 general election. Then, at paragraph 38, demonstrates coordinated campaigning in a 2016 campaign to protect public hospitals. Then, at paragraphs 39 to 49, illustrates that, in respect to the Orange by‑election, there again was coordinated campaigning.
So, they were the types of activities carried out and open to be carried out and likely to be carried out after the Act. If one then comes to the position after the Act, the starting point is paragraph 75, that in the period between 1 October 2018 ‑ ‑ ‑
GORDON J: What paragraph is this?
MR GLEESON: Paragraph 75, between 1 October 2018 when the capped expenditure period started, and until delivery of this Court’s decision in Unions (No 2), because the State was still asserting section 35 was a valid law, the Unions, to avoid the criminal law, did not engage with the coordinated campaigning.
GLEESON J: Mr Gleeson, what you just said does not appear in 75. It just states the facts about what the Unions New South Wales did not do. Is the reason pleaded?
MR GLEESON: The reason is at 84, your Honour.
GLEESON J: Thank you.
MR GLEESON: What then happened after the Court’s judgment came down is that the Executive quickly passed a regulation – this is referred to at paragraph 67 and 68. And that regulation brought back into force the earlier caps, and because of the particular way it was drafted, it did not seek to revive section 35 for the balance of the period of the regulation. The result was, as seen at 69 to 72, there was a brief period of flourishing of ideas where, in the last weeks of the campaign, because section 35 had been removed as respected in the general election, the Unions were able to engage in coordinated campaigning. So, that was activity available to them for that limited period.
The regulation expired after a year, so once it had gone, the Unions were back under the full weight of section 35 in respect to by‑elections, local government elections, and, likely, general elections once the State took the inevitable step of reintroducing a cap. And so, the evidence as to the burden is, in particular, between paragraphs – I have dealt with 75, but it is 76 to 83 and the critical paragraphs are picked up by 84. So, what does all that establish? In a case like Mr Croome’s case, Mr Croome pleads that he engaged in the activities which the criminal law says were to be punished. And Mr Croome is recognised as having standing to challenge the validity of that law.
KIEFEL CJ: He also said he intended to continue, did he not?
MR GLEESON: He said he intended to continue, I will come to the judgments as to the weight given to that in the analysis. In the present case we have citizens who say, not that we went ahead and engaged in conduct in breach of section 35, exposed ourselves to the criminal law but, rather, we did the very sort of thing the law encourages which is, we modified our behaviour to avoid the criminal law.
Now, that behaviour is behaviour which is to be commended. It is to be commended that the plaintiff said, while‑ever that law is on the books, what we must do is accept the burden of not coordinated campaigning and, therefore the people are denied the benefit of our messages. One of the issues raised between the parties and, on this point, the Commonwealth is at one with New South Wales which is to say you can never come to a court and assert that form of standing. You cannot come to the court and say, I modified my behaviour to comply with the criminal law, a law I say is invalid, and I would like that law assessed and struck down.
GORDON J: You can if you are in the Croome category. You can if you can say the law is on the books and I intend to continue to do it. I therefore seek a declaration to ensure that I am not in breach of the law or to get a declaration that the law is invalid and therefore it does not apply to me. We are in a very different case here.
MR GLEESON: Well, your Honour, we are different to Croome in two respects. I am just trying to tease them out separately. The first respect is, what if, in Mr Croome’s case, he had come to the court and said, for the last X years I have not engaged in my chosen form of personal behaviour because I fear the criminal law. Would that have made his case for standing any worse? We would submit not. That is one issue.
The second issue is, if the day before Mr Croome’s case had come on for final hearing in this Court, Tasmania had repealed the law, would that deprive Mr Croome of the ability to say, I still wish the judicial power to be exercised to quell the controversy: did that law invalidly burden my behaviour over the . . . . . period?
EDELMAN J: Is your assumption that set an example of the repeal as retrospective?
MR GLEESON: I am not sure I am making that assumption, your Honour.
EDELMAN J: Because, in theory, he could still be exposed to consequences of past behaviour, even by a repealed law, if the repeal was not retrospective.
MR GLEESON: Yes, well, that may be so, but what I am trying to tease out is, if the repeal was wholly prospective, that is what I am trying to tease out. We submit Mr Croome would still be able to say that law invalidly burdened my freedom of behaviour for X years, period, contrary to the Constitution, and I can have that question determined. And it is a question determining the past, quelling a controversy and, such further consequences as it will have, for Mr Croome or other people, will properly flow from the binding force of the decision.
Your Honours, what I then wish to do, just before I come to the cases, is to indicate that, completing the facts, I do not think there is dispute that in the period leading up to the proceedings, Unions did everything possible to have this controversy crystallised and resolved without exercise of judicial power. The material that is in the special case ‑ ‑ ‑
GORDON J: Why is that relevant, Mr Gleeson?
MR GLEESON: In terms of the crystallisation of the controversy and – so that is part of just assuring that we had a matter and we had standing at the date we sued, but also it is going to become relevant once we look to the future, that is, what is likely to reoccur in this matter, which is the next strand of our argument.
GORDON J: I see. Just while we are dealing with the past, do you accept that if you are right that there is no – there is no contravention of the law, there is no element of cause of action that is necessary for the declaration, it is really an intellectual exercise about whether or not the law at the time was invalid. There are no other consequences, are there?
MR GLEESON: Well, it is certainly about whether the law at the time was invalid and therefore whether, as I have said, we were burdened and the people were denied the benefit of our communications. It is true that on the pleadings, to the extent Unions alleged they modified their behaviour to comply with the criminal law, the defendant has not admitted that paragraph of the pleading. So, that is there, that is a slight nuance on that.
So, what happened prior to the proceedings is the material summarised in the special case at 99 to 103, and the effect of that was repeated requests for an undertaking to repeal section 35 and section 29(11) were rebutted and instead, after considerable delay, the matter was referred to the Joint Standing Committee of Electoral Matters, JSCEM, for inquiry and report. Your Honours may have observed in the overly fulsome special case annexures, there is no such report.
GORDON J: They never reported, did they?
MR GLEESON: They never reported, and so that will be relevant when we come to section 29, but it is also relevant to 35, that the gap, the evidentiary material‑based gap, identified by this Court in Unions (No 2) in respect to the equivalent provision has never been filled by the State, but I will come back to that later.
Then the special case goes on to set out the further steps that have occurred and the process by which the law has been amended. Then, against that context, Unions again sought undertakings that the State will not reintroduce section 35 – either by legislation or regulation. Paragraph 105K asserts the fear of Unions that it will be introduced by legislation or regulation.
Your Honours, I do need to say directly on this part of the case, we hold the fear in paragraph 105K that if you either adjourn this part of the case today or if you were to dismiss it, Mr Walker’s client will – at a very inconvenient time for us and for this Court – pass a regulation in materially the same form. They passed a regulation last time. We have asked for undertakings – they have refused to give it. We do not contravene parliamentary privilege by saying that one can read the transcript of the Hansard to see that the government passed the repeal of section 35 under protest. All of that creates at least a risk that the same vice will re‑emerge by regulation.
We do not think we are merely speculating, as the Commonwealth says, or dreaming up fears that the we should not have. We have a very real fear that on, for example, 19 December we will be contacting the Registry saying, could we now reconvene seven High Court Judges to assess the validity of the new section 35 in a regulation. One of the many discretionary reasons why the Court should rule on the past in order to quell the controversy for the past in a binding manner which will create a res judicata, an issue estoppel and a precedent is judicial economy or, put differently, ensuring that wrongs do not evade judicial review.
Your Honours, can I come to the authorities and start with the supplementary book with tab 2, which is Wragg v NSW 88 CLR 353. In that case, as seen from the head note, the claim was that an order under the Prices Regulation Act fixing maximum prices for the sale of potatoes in New South Wales infringed section 92 of the Constitution.
On page 355, at paragraph 3 of the special case, it can be seen that the pricing order went through a number of iterations, and at paragraph 4, the underlying “declaration of potatoes” which gave rise to the pricing order was, in fact, revoked during the course of the case. So, it clearly has some similarities to the present case.
Paragraph 5 sets out the statement of claim and the relevant declarations which were sought include 3, 4 and 5. They were declarations of the invalidity of orders even though those orders had now been revoked. So, they were seeking to quell a controversy about the validity of a past order. Over on page ‑ ‑ ‑
GORDON J: Was it the controversy about past orders or controversy about power?
MR GLEESON: In fact, it was both, your Honour.
GORDON J: But is that not the distinction between this case and that case?
MR GLEESON: It was about whether an order made at State level was invalid by reason of the command of section 92 of the Constitution. There were other issues in the case about the construction of the Act itself – the State Act. But I am focussing on 3, 4 and 5 – particularly 5:
a declaration that the Prices Orders . . . are invalid by reason of the provisions of s. 92 of the Constitution.
One might say in the present case we seek a declaration that section 35, in its period of operation, was invalid by reason of the implied freedom.
In the special case, the question of the change in the law – sorry, just before I come to that, at page 364, paragraph 17, there was a plea in special case that the order had impacts upon the plaintiffs in the past. Then the questions for the Court, framed at the bottom of page 366, the first question was are you entitled to any of those declarations. As I have shown, they are declarations about whether the order – no longer in existence – was invalid under the Constitution. The second question was, in fact, bridging between the past and the future, because they have expressed it was:
May potatoes imported from Tasmania be lawfully sold –
by the plaintiffs. Then, there is the third question. On 367, there is the addendum in the special case, which arose because of the application to have the matter stayed. And in the addendum, apart from referring to the revocation of the declaration, there is a record of the statement of the Minister that he would have “no hesitation” reimposing it if price increases were made. So, there was some evidence of a risk that the very same problem could come back. The argument of Mr Barwick in‑chief is at 369. In reply, at the bottom of 370, he said:
Declarations similar to the –
present declarations had been made in another case, and:
orders which did exist were invalid during their currency –
and such were required. The:
fact that the orders had been revoked would have little or nothing to do with what happened under the orders while they were extant.
So, that is a focus on the quelling of the controversy in respect to the past, because the orders – so as it was claimed – had these past impact. Now, in the critical little passage your Honours have read more than once, the top of page 371, in a number of cases, Chief Justice Dixon, on behalf of the Court, said the plaintiffs could proceed:
We do not propose to say anything to tie our hands in the matter but probably all of us are impressed with the view that really what is at issue is whether has been done can be repeated.
When I answered your Honour Justice Gordon, there is a bridge between the past and the future, that compressed sentence is saying the Court, as a matter of jurisdiction, will be quelling a controversy about the past: are these orders invalid under section 92 at the time they were alive?
EDELMAN J: Mr Gleeson, is this type of reasoning still good law?
MR GLEESON: Definitely, your Honour. This is M68, and I will come to the other cases shortly.
EDELMAN J: It is actually a different point that I am raising, which is reasoning about the validity of executive orders – or even executive legislation – that is enacted under a valid statute. So, after cases like Miller, Mineralogy, where this Court has said one focusses upon the primary legislation and determines its scope, rather than focussing upon the effect of the implied freedom upon anything done under – particularly executive action – that primary legislation.
MR GLEESON: Yes. Your Honour, I accept that is a development in that part of the Court’s jurisprudence but what this paragraph is about is jurisdiction and utility. It is not dealing with the substantive question of how to resolve the section 92 challenge. What I am seeking to impress from these words is, the Court will be deciding whether what has been done can be repeated in the sense that it will be quelling the controversy about whether that thing in the past was invalid – however that be done correctly under section 92 jurisprudence. So, there remains a matter – there remains standing – and then the utility is demonstrated by the fact that there was, at least, a risk that this very same question could re‑emerge. So, in that paragraph, we have both matter and utility being addressed.
EDELMAN J: But if that were to be put in the terms in which the case had been put by Mr Barwick – as you took us to at 369 – the concluding part of his argument, as summarised, is that the plaintiff’s claim – as it is now before the Court – is in the first place for a declaration as to the extent of power granted by certain sections of the Prices Regulation Act – which Act, I interpolate, was still in force. So, the issue that was being raised was the validity of an Act which was still in force in circumstances in which actions taken under that Act might affect the plaintiffs.
MR GLEESON: I beg to say, no, your Honour. There were two issues Mr Barwick was raising. He was saying, I attack the Act, and that is part of the reason why I am not moot. He was also saying, I attack the regulation, and he was doing that at a time when section 92 jurisprudence ‑ ‑ ‑
EDELMAN J: Yes.
MR GLEESON: ‑ ‑ ‑ often went straight from section 92 to the regulation. The way to then test that is to ‑ ‑ ‑
GORDON J: Can I just ask one other question about that. Here, we are a bit different though, are we not, in this sense, that we have no idea on the future what a section 35 equivalent might look like. Why do we assume on this future aspect that what will be enacted if your fear comes home to roost is in exactly the same terms, similar terms, substantially the same terms as what was on the statute book?
MR GLEESON: The Court does not need to engage in any fine‑grained predictive assessment of precisely what might happen. Our fear is expressed at a generalised level. That is the provision which burdened us for four and a quarter years. That is the provision we have been relieved of only because of almost an accident of parliamentary process. We have a government who says we oppose that repeal and we regard the repeal as shameful and as destroying the integrity of the legislation.
GORDON J: So it is not really about the fear then because we cannot assess that risk, we are really back on your first argument.
MR GLEESON: I am accepting I am not asking your Honour to do a fine‑grained assessment of the degree of probability of the risk coming home. I am saying that, in these types of situations, if there is really an onus on the government, and there is an onus on the State, if they can convince you and show you there is no realistic possibility of section 35 in a material identical form coming back, then you take that into account, we would submit, in the utility exercise. The onus is on them.
We have done enough on a record to show we have repeatedly asked for the undertaking, they refused to give it, they are prone to resort to regulation, and the government says we oppose the repeal of section 35. If that is not sufficient to create a risk that we are – this is the last time I will say it – we are contacting the High Court Registry on 19 December, I am not sure what is.
Your Honours, in the case, I did want to then just refer to the passage in Justice Taylor which the Court has picked up in more recent judgments. At the foot of 392, his Honour observed when the appeal came on, the order was no longer in force:
This circumstance, however, does not disentitle the plaintiffs to have considered the questions which have been stated in the case.
We would read that as a statement about matter and standing.
STEWARD J: Although that has to be read with what the Chief Justice said at the bottom of 388.
MR GLEESON: At 388, which appears to pull in a slightly different direction ‑ ‑ ‑
STEWARD J: Remedy.
MR GLEESON: ‑ ‑ ‑ which we regard as remedy. That is right.
STEWARD J: Yes.
MR GLEESON: So, one thing we want to establish is, in terms of matter and standing, we are still here, we are alive. We should be. And the reason we should be – if I could just take up your Honour’s question without appearing to be flippant about it – is that of course, one of the ironies of these cases is, if you survive as a matter of matter and standing, you get to the merits and, if you lose – as Wragg loses – what the Court then does is exercise judicial power to quell the controversy about the past against you.
So, the very thing that happened in Wragg, in the answers to the questions at page 399 was, because the plaintiffs lost – and they lost both on question 1, which was narrowly‑targeted to the declarations that were sought, and on question 2, the more open-ended question, can the potatoes be lawfully sold in New South Wales in excess of the – sorry, I have lost my thought on that one.
My submission is, that in answering the questions, the Court, because there was a matter and there was standing, went on to answer them adversely to the plaintiffs, the result of which was that it created an issue estoppel and a res judicata between the parties. So, the controversy was quelled by the Court answering the questions.
GORDON J: That reinforces the point I raised earlier. I might raise it again. And that is, if you have not got the form of the legislation in front of you or available, it is difficult to get the benefit of even those results. They may go to utility, but I think that is ‑ ‑ ‑
MR GLEESON: Your Honour, it does not go to matter or standing, I will put that. But, if the Court answers our question on section 35, what you will do is pronounce, either for us or against us, that the provision in that exact form within that scheme was valid or invalid over four and a half years.
That is what will be the res judicata or the issue estoppel or the precedent. If we get the answer we seek, the result will be that New South Wales will not, or should not, seek to re‑enact a materially identical provision, and were they do so, we could get summary judgement in any Chapter III court and not bother your Honours. That is what the benefit to us will be. If New South Wales comes up with a materially different provision, then the res judicata and the issue estoppel will be of no benefit to us and one will simply have the reasoning of the Court.
Could I then go to Ainsworth, your Honours, which is in volume 3 at tab 13. So as is well known, Mr Ainsworth’s challenge was that he was denied procedural fairness in the manner in which the CJC report was tabled without giving him notice to comment on its adverse findings. In the critical passage, foot of 581 over to 582, the Court emphasised the breadth of declaratory relief. It said:
it is confined by the considerations which mark out the boundaries of judicial power.
I pause there. That does not collapse the grant of a discretion into simply a question about matter, a point your Honour Justice Gageler and Justice Gleeson made in a joint judgment in one of the recent cases. The:
declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions.
You:
must have “a real interest” and relief will not be granted . . . if relief is “claimed in relation to circumstances that [have] not occurred and might never happen” –
Citing Moorhouse’s Case. Now, we do not fall foul of that because the relief is sought in relation to circumstances that have occurred and might again happen. Then there must be – will not be sought if it would “produce no foreseeable consequences”. In the next paragraph the reason there is a relevant controversy is the:
report has already had practical consequences for the appellant’s reputations.
So that is the past, and:
For all that is known, those consequences may extend well into the future.
The declaration:
may redress some of the harm done.
That is the passage that I rely upon to say, your Honour Justice Gordon, the Court does not need to engage in a fine‑grained assessment of precisely how the future will play out. The Court takes an approach which looks at practical consequences already suffered, and then it may be relevant if the consequences may occur in the future.
If we succeed in obtaining the declaration, and it is known conclusively by the judicial power that this provision was invalid for four or more years and burdened at least these TPCs – potentially others – and denied the people communications to which they were entitled, that may well redress some of the harm done by the State not keeping itself within the Constitution (Cth).
GLEESON J: How, Mr Gleeson?
MR GLEESON: Firstly, it will be known and the Unions will be able to say, you might have observed our lack of coordinated campaigning for a four and a half‑year period – there was a reason for that, it has been conclusively determined we were denied the lawful opportunity to do so, and we are now coordinated campaigning again, as we are entitled to.
GLEESON J: But that would not redress the harm that was done, which was the chilling effect.
MR GLEESON: That is why I have focussed in part upon the Unions as the persons who suffered the direct burden but the chilling effect on communication is the larger harm with which the Constitution is concerned. The Unions are a fulcrum or a means to the far more important end.
Now, we have to accept that, as the law stands – we cannot urge a difference today – there is no action for damages against a polity who engages in an unconstitutional constraint upon political communication. That is part of the fabric of the law. But the declaration is the remedy by quelling the controversy, which allows the judicial power authoritatively to say, we now know the answer to that question of whether what happened in the past was right or wrong under the Constitution. That, we would submit, is the perfect thing that the judicial power should be exercised for.
STEWARD J: Can I ask you this, just to test that out? Let us just say that Croome’s Case never occurred – on your view of the world, could Mr Croome today bring a case to this Court on the basis that he asserted a fear that the Government of Tasmania would re‑criminalise the said behaviour?
MR GLEESON: So, your Honour’s premise was the case had never occurred?
STEWARD J: Yes.
MR GLEESON: Yes.
STEWARD J: He says, I assert the fear that Tasmania will re‑criminalise this personal behaviour and I want to know whether the past legislation is valid or not.
MR GLEESON: Well, that may be more difficult, your Honour, because, if you take your Honour’s premise that the Court has never been seized in the first place with a concrete controversy between Mr Croome and the State about the validity of the actions imposed upon him, so, if he simply comes and says, I fear a future legislative Act – and particulars of my fear, they did this to me in the past – he may have far greater difficulties in getting standing, and a matter, and even utility.
But I would seek to distinguish that from our case where, because the Court has been seized of the matter, the Court is really faced with a fairly profound question, which is whether – given there was a controversy – it is about that very particular law, which it is said burdened the people and chilled speech – given that, when a Parliament – at five minutes to midnight – for whatever reason – repeals that law – as a footnote, does not undertake, not to bring it back – will not pay costs, their footnotes – but when a Parliament repeals that law, can the State then just say to the Court, your role is over – your role is ‑ ‑ ‑
STEWARD J: So, your position is that history is your concrete?
MR GLEESON: It is the concrete.
STEWARD J: If I can put it like that.
MR GLEESON: Yes.
STEWARD J: Yes.
MR GLEESON: It is the joining of the issue in the case, in the judicial power, which allows the completion of the process. Your Honours, then with Croome’s Case, which is volume 4, tab 18, in the judgment of Chief Justice Brennan, Justices Dawson and Toohey, at page 126, an important point is made, with respect, that:
The law that is being administered in such proceedings is not the impugned law but the constitutional or administrative law which determines the validity or invalidity of the impugned law.
So, once we properly brought the matter to the Court on 28 June, the law we were asking the Court to administer is, obviously enough, the Constitution and not the New South Wales law and the declaration of invalidity of the New South Wales law will administer the Constitution. Now, that is part of my answer to your Honour Justice Steward’s question, that that is what distinguishes us from your Honour’s example. Then the Court goes to the question of sufficient interest and at the top of page 127 cites Lord Upjohn in Dickson’s Case, that:
This principle is not confined to trade. A person whose freedom of action is challenged can always come to the court to have his rights and position clarified, subject always, of course, to . . . discretion –
Now, that we embrace and say our freedom of action to incur electoral expenditure was challenged over four years by this law. We do not have to show that we proceeded to do acts which were criminalised, we just need to show our freedom of action was challenged. Then, in the last full paragraph on the page – this comes back to your Honour Justice Gordon’s earlier question – the judgment says that:
the concession of standing was rightly made not by reason of their intention to engage in conduct of the kind pleaded in par 7 (though that . . . may be relevant to . . . discretion . . . but by reason of their having engaged in such conduct.
So, at the stage of standing and matter, the modification of the plaintiff’s conduct is sufficient to give them standing and that standing is never lost. That is the reason why the State’s denial of our standing by reason of our past conduct is inconsistent, we would say, with Croome. Then the judgment goes on to place considerable emphasis on the pleading that they have engaged in the conduct as the relevant matter which confirms their position.
In the judgment of Justices Gaudron, McHugh and Gummow, the passage at the top of page 133 is relied upon, to some extent, by the Commonwealth and New South Wales as saying that the question of “standing” and, perhaps, the question of utility, are subsumed within “matter”. We would urge caution in taking that approach. These remain conceptually discrete concepts – “matter”, “standing” and “utility”. They may come together in particular circumstances, but they are conceptually different inquiries. We would say that the matter before you – including the validity of both 29(11) and 35 and costs properly remains before you at all times – and “standing” properly remains, “utility” is a separate question to be addressed.
The next paragraph on 133 is relevant in indicating that the United States’ authorities on Article III may have some relevance in the area. Without reading all of the judgment, the critical holding is on page 136 and, in particular, if your Honours look at the middle paragraph on 136, it is framed in these terms:
where the law of a State imposes a duty upon the citizen attended by liability to prosecution and punishment under the criminal law, and the citizen asserts that, by operation of s 109 of the Constitution –
renders the State law invalid, it is not the case that there is:
no immediate right, duty or liability to be established by determination of this Court, in an action for declaratory relief . . . unless the Executive Government of the State . . . invoked legal process –
So, the Court there is focussing, we would say apposite to our case, on, does section 35 impose a duty upon the plaintiffs attended by the criminal law? Yes. Is there assertion of invalidity under the Constitution? Yes. Is there an immediate right, duty or liability? Yes. Is an action for declaratory relief available? Yes. So, the focus of this paragraph – and it is the same on the next page, 137, the last sentence of the paragraph at about point 5 – the focus is on whether the impugned law requires:
the observance of particular norms of conduct –
and attaches criminal consequences to them. So, when I said to your Honour Justice Gordon, we are different from Croome only in two respects, the first respect, we would submit, is not a barrier to our case continuing, namely we complied with the law, rather than we breached the law. All that is left is, could Tasmania have escaped judicial determination of this claim by repealing the statute one day before the final hearing? We would submit not. But perhaps that is the issue upon which this part of the case turns. Your Honours, could I then go to Plaintiff M68, which is in the supplementary book, volume 1.
At Plaintiff M68/2015 (2016) 257 CLR 42, the challenge was to the exercise of executive power, both at the level of the statute, and directly under section 61 of the Constitution – that emerges from paragraph 24. Shortly before the hearing, this is paragraphs 19 and 20, the underlying factual substratum radically changed because Nauru went from being a closed detention centre to what was called an “open centre”. And, as paragraph 20 indicates, that removed the ability for the injunction or the mandatory writ but left the question whether there could be a declaration that the conduct in relation to past detention was unlawful by reason of, inter alia, the Constitution.
Now, we rely upon paragraph 20 as indicating a very close parallel to this case, because the issue as it had been narrowed by reason of Nauru’s change of the facts was solely about the legality of the past detention and in that context the Commonwealth argued unsuccessfully that that was the end of the case. Each of the judgments dealt with that Commonwealth argument fairly summarily, but briskly. In the judgment of Chief Justice French, your Honour Justice Kiefel and Justice Nettle – paragraphs 22 to 23, it was noted that standing is linked to “matter” and to relief. Paragraph 23 is the submission by the Commonwealth, that past conduct and no further consequences, and your Honours said:
the declaration sought by the plaintiff would resolve the question as to the lawfulness of the Commonwealth’s conduct with respect to the plaintiff’s detention and whether such conduct was authorised by Commonwealth law. This is not a hypothetical question.
So, pausing at that sentence, the declaration would determine a wholly past question which was not hypothetical. Then the next sentence is also important:
It will determine the question whether the Commonwealth is at liberty to repeat that conduct –
if it was minded to do so in the future. Now, coming back to my answer to your Honour Justice Gordon, there is no fine‑grained assessment here, and it is unnecessary to have one as to how likely is it that Nauru is going to become closed and the Commonwealth is going to ship people off there.
What we would submit the Court is saying in this elegantly expressed paragraph, if I may say that, is by determining the question as to the lawfulness of the past conduct and creating an issue estoppel, a res judicata and a precedent, the effect of that binding determination will apply in the future if the State chooses to do the same thing.
GORDON J: Is that predicated on – putting aside the last sentence – is that consistent also, or is it distinguishable by reference to the sentence above that? There was a utility or a standing – I do not seek to merge the two concepts at all, by the fact that – and although there was not an action for damages for unlawful detention, that declaration was at least relevant to that issue?
MR GLEESON: Well, your Honour anticipates my next submission, which is of the judgments in this case, our Honour was the only judge to expressly build that consequence into the analysis. Your Honour did that at paragraph 350. So, for your Honour, part of the utility came from the fact that by answering the question about lawfulness of the past, if there was an action for damages, then it would create the issue estoppel which would be very helpful in that case.
Again, in paragraph 350, with respect, your Honour is not and does not need to assess how likely is it a damages action will be brought. Your Honour is identifying a circumstance in which the res judicata or the issue estoppel could do further useful work. As we read the other judgments, they do not at least expressly hinge on that particular prospect. I refer to Justice Bell, at paragraph 64. Your Honour Justice Gageler, at 112, which puts the matter, with respect, in fairly broad terms which we embrace, that there no loss of standing:
by reason of the change of circumstances –
And your Honour references Wragg at 371 and 392. His Honour Justice Keane, at 235 to 236, expressly adopts Wragg and uses the language of the Chief Justice that:
it is difficult not to be “impressed with the view that really what is at issue is whether what has been done can be repeated”.
Accordingly, the plaintiff has standing –
and so on. Of course, again, the irony came home in M68 because the plaintiff, having survived on standing and matter, when one comes to the answers to the questions at 175, the plaintiff – question (1) – did have standing to challenge whether the conduct in the past was authorised. Now, that we would read as inconsistent with the State’s view that you cannot have standing in respect to what happened to you in the past. But then in the answers to questions (2) through to (5), the Court determined that what happened in the past was authorised.
KIEFEL CJ: The possibility there was that the plaintiff might have a claim for damages for unlawful imprisonment.
MR GLEESON: With respect, your Honour, that was a possibility adverted to by Justice Gordon. In respect to the other judgments, it was not an express part of the reasoning. What seemed to be ‑ ‑ ‑
KIEFEL CJ: No, but that is the possibility that arose in relation to the effect on the plaintiff if the Commonwealth’s actions had been unlawful.
MR GLEESON: I am sorry, I missed your Honour’s point. Yes, in respect to the particular plaintiff ‑ ‑ ‑
KIEFEL CJ: Yes.
MR GLEESON: Well, that is the most obvious possibility, but it is not the only one, even for the plaintiff, because, as Justice Keane put it at 235 to 236, the arrangements for detention might be reapplied in the future, and that presumably could be to the plaintiff or to other people.
KIEFEL CJ: But even without the future, the person, depending upon the finding of the Court in relation to the lawfulness or otherwise of the conduct, the plaintiff could bring an action for damages as to the past conduct.
MR GLEESON: May be able to bring an action for damages.
KIEFEL CJ: Yes.
MR GLEESON: There was an argument in the case ‑ ‑ ‑
KIEFEL CJ: So there is a potential consequence there that is not here.
MR GLEESON: Well, certainly, we do not have the potential of an action for damages.
KIEFEL CJ: No.
MR GLEESON: There is no damages for a constitutionally wrongfully‑passed statute, but ‑ ‑ ‑
KIEFEL CJ: You are not at risk of prosecution because your behaviour conformed to the law.
MR GLEESON: Well, we say our behaviour conformed ‑ ‑ ‑
KIEFEL CJ: Properly so.
MR GLEESON: Properly so. They do not admit that to be so.
EDELMAN J: I suppose this comes back to the point that you started with, which is that had you contravened the law and been in continuing jeopardy of prosecution, it would be odd to say that you had standing in those circumstances and not have standing in circumstances where you have reluctantly complied with the law.
MR GLEESON: Well, extremely odd and contrary to the policy of the law which is referred to very explicitly in Croome. Perhaps I jumped over that paragraph too quickly, Croome at page 138, at the top of the page where:
The policy of the law which animates the operation of the Australian legal system includes the encouragement, and indeed the requirement, of observance of the law. That particularly is so of the norms of conduct required or forbidden by the criminal law.
So, we should be in no worse position, perhaps a better position, because we conformed our conduct to the law.
So, your Honours, on the answers to questions in M68, the answers that were given were in respect to the past, and then question (6) and following through to (11), (13), were unnecessary to answer because they were questions about what would happen if something happened in the future and the Court did not get to them – did not need to, quite properly, with respect – because the answers to the past, in fact, gave the Commonwealth the binding answer it needed should it resume the same form of conduct.
Your Honours, in the supplementary authorities in volume 2 the Commonwealth has placed heavy reliance upon this Court’s decision in Smethurst, which is at tab 9, in particular the passage between paragraphs 105 to 107, but also what your Honour Justice Edelman said at 280. We think there are some fairly clear points of distinction between Smethurst and the present case. In Smethurst, the challenge was to the validity of what was called the “second warrant”, firstly on the statutory ground, that it exceeded the power, and secondly, that the underlying provision of the Crimes Act, section 79(3), was invalid.
Once the Court had found the warrant invalid under the Statute, it is perfectly consistent with the normal prudential approach, that one does not have utility in going to the anterior question: was the power ever available in the first place? The warrant can only be bad once; it cannot be bad twice. Once the warrant had been declared bad, one can see the force of the reasoning which says, we do not go on to consider an underlying question about section 79(3).
Of course, the Court split on a different question, which was whether there was an appropriate case for injunction or mandatory relief to try and reverse the consequences of the facts that the information had gone into the hands of the police when it should not have in the first place. That was a separate dispute. What was being argued by the plaintiffs – as recorded at the end of [105] – in their attempt to get a declaration, was that was some utility for them because:
it might result in the investigation and possibility of prosecution being brought to an end.
One might regard that as a fairly speculative submission. At [106], the Court said that the plaintiffs’ interest in the section 79(3) question did not set them apart from anyone else, and things might differ if they had been:
charged with an offence –
The Commonwealth seized on that paragraph and says, well, that is the end of our lifeline; this is the Court saying that it is an essential element in these sort of cases to show that you have actually been charged with the offence. We would submit that completely misreads the paragraph. That is not the point being made by the Court here.
The point is being made very particularly about the plaintiff in the case, that for this plaintiff, having found this warrant to be void, and otherwise having been denied injunctive relief and the criminal process not having been commenced against this plaintiff, there was no basis for a declaration. At [107], the Court distinguishes Croome as a case where:
law criminalised the plaintiffs’ relationship with other people and affected their freedom of action.
We agree with that as a description of Croome. The next sentence is a more particular and accurate of Croome, where:
The plaintiffs that they had engaged in conduct –
The final sentence is:
The plaintiffs . . . do not say that their past conduct has contravened s 79(3).
But equally, they do not say – that is, the Smethurst plaintiff did not say – that they had modified their conduct to conform with the criminal law.
GLEESON J: But is the difference in this case not that we are talking about freedom in contradistinction to a personal right? So that, here, your client has no different interest from anyone else in relation to the invalidity of the legislation based on your – what is, admittedly, your past conduct.
MR GLEESON: Not quite, your Honour. First, the group of people who are targeted by this legislation who have a special interest over and above everyone else in the community are TPCs are defined. So, that has narrowed it down – it is not every person in Australia. This legislation says one group of people are subject to what we call discrimination: TPCs. Not parties, not electors, not groups, not people who spend less than $2000. All of those people, we would submit, have an interest which takes them outside the ordinary person. Within that group of people, we then have the plaintiffs who say, we are in an even more special position because we are the ones were denied the ability to engage in the speech; not our personal right speech, but speech which the whole people of Australia were entitled to under the Constitution.
So, if the plaintiff did not have that standing in that circumstance, one is almost driven to the logic of Mr Walker and Mr Donaghue’s argument that polities can infringe the implied freedom with complete immunity, provided they repeal the legislation in time. And that, we submit, would be a very troubling proposition to adopt and inconsistent with the whole reason the Court has adopted the implied freedom in the first place. Your Honours, I notice the time.
KIEFEL CJ: Yes, thank you. The Court will adjourn for 15 minutes.
AT 11.15 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.30 AM:
KIEFEL CJ: Yes, Mr Gleeson.
MR GLEESON: Your Honours, the only final matters were just to cover a few footnotes to the submission. In terms of a chronology, I seek to hand up an amended chronology, which covers the events since the previous chronology, if I can do it. That has been circulated.
KIEFEL CJ: Is this different from the one which was provided on 16 November?
MR GLEESON: Yes, that would be the same one, your Honour.
KIEFEL CJ: They are the same?
MR GLEESON: Yes. In terms of where the Court will find the 2019 regulation, that it is volume 2, at tab 10, page 330. What we take from that in terms of our fear, is – your Honours will see from the note on the middle of the page that what happened in 2019 was that when the regulation device was used, it was effectively retrospective in that it applied a cap back to 1 October in the previous year, so that if section 35 were re‑enacted by regulation, our fear is that we will be under a burden which we are retrospectively meant to be complying with, even today.
Your Honours, in terms of the exchange of correspondence where we sought and were refused the undertakings, I can simply indicate where that is found. It is in the supplementary special case book, tabs 332 through to 336, with the endpoint being really at 335 that no undertakings can or will be given, and in terms of costs, the State will not pay our costs unless we can establish unreasonableness in their conduct.
Your Honours, in terms of the submission that no executive can bind a following executive, while that statement can be made generally, what we are really talking about is whether appropriate protection can be given to the plaintiffs and to the Court between now and 23 March next year which, we submit, could easily be done. In terms of the Second Reading Speech, where the government indicated it was passing the repeal under protest, I can simply say that is found at volume 8 of the joint book of authorities, tab 39.
GAGELER J: We cannot draw any inference from that, can we?
MR GLEESON: You cannot – so it is parliamentary privilege under the Bill of Rights – the Imperial Acts Application Act, it is not the Commonwealth Act – one cannot impugn or impeach a member of Parliament from those statements. What one can do is this, that in the ordinary course, one might assume that where an amendment is passed by the government, it has the government support. What that document does is indicate – as is the truth and the fact – that did not have the government support, which you perhaps, have seen directly in New South Wales’ reply submissions, where they say the government opposed it. So that is the fact; we take it at its truth.
GAGELER J: You do not seek to get any more out of it than that? I am happy with that, but if you are trying to go a little bit further and make some prediction for the future based on what was said in Parliament, you might be in trouble.
MR GLEESON: We only go to where I go. What we have got is a polity which uses regulation close to an election in this very area – that is 2019. We have got a proper request for undertakings which has been refused for no good reasons given. We have a government which has opposed the repeal, and as I have shown you, the risk is if the regulation is passed, it may well be retrospective and were already under the burden of it. Now, if the test is, it is for the State to show there is no likelihood of this happening in that four-month period, then we have satisfied our burden on that issue.
I was just saying, in terms of the Executive, there is no difficulty in an Executive indicating for this Court in appropriate language that it does not intend to reintroduce section 35 between now and the 23 March next year, and liberty to apply could be attached to that. So, there is no difficulty in that being given – it is not being given, and that strengthens our fear. Your Honours, the two final points were, I think, given the time and the way I have sought to frame our argument primarily through Australian authorities – I will not burden you with United States authorities; we have written a little about them, and the Commonwealth has said something about them as well.
If your Honours go to them, the two best authorities for us would be the City of Mesquite Case, volume 7, tab 29, at page 289, and secondly, the decision also of the Supreme Court in Massachusetts v Oakes, which is in the supplementary at tab 6. Justice Scalia, writing for the majority at page 586, which was a case where an intervening statute, not merely a subordinate instrument, which repealed the offensive provisions, was held not to bar the Court continuing both with jurisdiction and with the exercise of jurisdiction. So, to the extent the Commonwealth says the City of Mesquite principle is only about subordinate instruments, that is denied by Massachusetts v Oakes.
Your Honours, my final submission is wholly in the alternative. If the Court were not to continue with the exercise of jurisdiction in the matter as we see it today, we would apply for that part of the case to be adjourned to 1 April next year for a directions hearing because that will provide some – incomplete, but some – protection for us against our fear. It will not solve all the problems ‑ ‑ ‑
KIEFEL CJ: I thought you said we would be back here on 19 December anyway.
MR GLEESON: Well, we fear we will be back here on 19 December, but – your Honours, I should be frank about this. I see absolutely no difficulty in counsel for New South Wales answering a very simple question. To the extent they have that fear, what can you give this Court to allay that fear? If they cannot answer that question, I think there is a real problem in their case. But if you stood the matter over in that fashion, this is wholly in the alternative, it would provide us with inadequate but better protection than a dismissal.
GORDON J: Is that because it means you do not have to file again? Is that all it gives you?
MR GLEESON: It is not about a filing fee, it is about ‑ ‑ ‑
GORDON J: No, no, I mean it is preparation, is that what that is directed at?
MR GLEESON: What it is directed at is if we are back on 19 December, which we do not want to be, we would say the worst has happened, here is our amended special case, here is our amended submissions, supplementary submissions, might be the identical submission but otherwise the case is wholly ready to go and we are now, with great reluctance, asking your Honours when you can hear the case that we were trying to have heard last November. We do not want to be doing that, but the people who are
stopping this matter being heard with judicial economy, with respect to Mr Walker and his team, and that is what we are trying to find a way to resolve.
In one sense it is a very practical problem, and I hesitate to put it on a practical level because it sounds like we are almost on a duty judge list, but it is hard to think of a case where the entire case is ready – the fear we have rests wholly in the hands of the State and they simply say we will not tell you whether Mr Speakman is going down to the Governor’s office on 19 December. That is the practical problem we have got.
Your Honours, I assume in relation to the cost of this part of the case, I do not need to address that at this point in time, but we would be – if the matter goes off, either by way of a discontinuance or a dismissal or adjournment, we would be seeking our costs. We do not have to prove unreasonable conduct. This is a litigant who had every chance to avoid this point and they have done it a couple of days before the hearing. The ordinary result would follow in that event, but if I need to ‑ ‑ ‑
KIEFEL CJ: I thought you said they opposed it, they did not do it. I thought that you said they opposed the repeal. This is not their action.
MR GLEESON: The “they” is the State of New South Wales. Our communication with the State of New South Wales attempted to prevent this matter ever having to be litigated. New South Wales said no, we defend the validity of our law. New South Wales for these internal unusual reasons has changed its mind as a Parliament very, very recently. All the costs of the case have been incurred for an issue which they say now should not be heard. In terms of the threat, we then are looking more specifically at the fact that it is the Executive of New South Wales who opposed it.
May it please the Court.
KIEFEL CJ: Yes, Mr Walker.
MR WALKER: May it please your Honours. Your Honours, could we start with the notion that, at the heel of the hunt, the State – that is, the polity – has done something unmeritorious concerning the prospect of this Court exercising its jurisdiction. Nothing could be further from the truth – an entirely inappropriate suggestion which underlies a deal of the argument your Honours have read and heard on this first point.
There is, of course, a limit which ought to be observed with bright lines on the propriety – let alone the substance – of what this Court would gather from parliamentary speech. What we have written about Article 9, I do not need to repeat – we think – particularly as it would appear in colloquy with our friend that the Court does not have before it any suggestion of the imputation of sinister motive to anyone who has spoken or taken part in proceedings in Parliament – including by voting.
That being so and as we understand it to be, one simply has what I am going to call a very small footnote indeed of political history in the legislative proceedings that produced the repeal in question. This is a bicameral legislature and – notoriously, as is very common in such legislature – the ministerial party may not command a constant or even common majority for anything and everything it proposes in the Upper House. And, of course, from time to time, there are what I will call minority governments in Lower Houses.
In the proper constitutionally expected interplay between the wills of two Houses – and I am not talking about Parliament, I am taking about Houses of Parliament – signified from time to time by majority votes in those Houses, and then communicated between the Houses by the official and proper means – there emerges, commonly, and this case is just one unremarkable example of it, unpalatable compromises for those who wish to accomplish some business but wish it were not accompanied by other business. Sometimes they will get their way, sometimes they will not. The latter is this case.
There is neither anything alarming, or even eyebrow‑raising, about a Minister saying, of a repeal which occurs, that, on behalf of the government he deplores it but, nonetheless, the ministerial party supports or does not oppose it because of what else can be obtained by that parliamentary business: the enactment of other matters – some of which are before your Honours and some of which is not business before this Court. But nothing can be drawn from that concerning what may happen in a future which, for example, would have a radically, or very materially different, relation between the Upper and Lower Houses and with the interplay of numbers respectively in those two Chambers.
That is precisely the kind of speculation which is perfectly sensible for voters – and those seeking to appeal to voters – to raise and to debate but which is utterly inappropriate for a court – particularly a court asked to rule upon the validity of a repealed enactment which may never be re‑enacted – whatever “re‑enacted” may mean.
If follows as well that the notion that, as counsel for the State I should simply be able to give a monosyllabic answer to a judicial question – does the State – whatever that means – intend to re‑enact or to impose by regulation, the same as the repeal of section 35, is completely unrealistic and does not represent the kind of exchange that can or should occur between a court and counsel for a polity. Being asked about a legislative program – let alone something which more accurately be called “political manoeuvres” – is really, absolutely, out of court, in our submission.
This is an argument concerning either a rightness issue – that is, is this a matter any longer – or the not unrelated issue of standing and the also not unrelated issue of utility. Concentrating on the first and, as it were, the “battering ram” element which is the matter not justiciable, it is significant that there is nothing in the so‑called undertaking sought – supposedly from New South Wales, query, from the Executive – certainly, of course, not from temporary and shifting voting majorities in either or both of the Houses – concerning a re‑enactment or a promulgation in materially similar – whatever that means – form by way of regulation.
That, in our submission, is a matter upon which no sensible undertaking can be given, depending as it does upon circumstances from time to time in a State that has fixed quadrennial elections due to recur early next year.
This Court, in our submission, should neither be drawing inferences of a quia timet kind, let alone inferences as to the form of supposedly feared legislation or regulation upon the basis of a manoeuvre borrowed from private, commercial litigation, namely the demand for an undertaking being, so to speak, unreasonably refused to be given as being, in itself, not by way of bootstraps, but by way of the sensible inference, based upon knowledge of the world, that a refusal to undertake to do something which would harm the person who seeks it, and would not so much harm the person who is asked for it, gives rise at least to reinforcement, if not to the initiation of an apprehension that the feared event will occur to a sufficient degree of cogency as to justify a quia timet jurisdiction being exercised.
That is as remote as can be imagined from the proper way in which constitutional validity is presented to this Court, not in terms of a feared future enactment, but by reference to an enactment which is accomplished and able to be examined, and examined as to the detail of its entrails for validity.
There is no doubt that there are cases where repealed legislation does not, by reason of being repealed, detract one iota from the justiciable matter concerning its validity. The obvious case is an easy one to hypothesise. One wishes it were not quite so realistic. Namely, purported legislation authorising the physical custody of a person who, but for the validity of that legislation and thus, with respect to, say, a warrant for a commitment, would not have or would have, depending upon the outcome of the argument, a claim for damages for the tort of false imprisonment, or worse.
So, there are of course cases where it is of the first importance to note that repeal does nothing to remove the full justiciability of the validity of the enactment. And nothing in the issues joined between the parties and the intervener on this issue canvasses that or renders that, in any sense, in danger.
But if one considers, for example, Wragg’s Case, to which considerable reference has been made, with more words than the words you will find in Wragg’s Case to support the points sought to be taken from it, it is significant to note that the statutory provisions in question, which either gave or did not give power in face of section 92 of the Constitution, to regulate the sale of potatoes in New South Wales, was not itself repealed. There was no previous and gone effect of it which gives rise to one form of analogy perhaps between Wragg’s Case and the current one, there is no such analogy.
The, I will call it delegated, legislation – the statutory order regulation which affected the plaintiff’s potato trade ‑ by coming to an end, is relied upon by our learned friends as being past governmental conduct, the purported effect of which would give rise to standing if it were repeated. And it is the repetition then, of something under a statute which had not been repealed, which is the subject of the, if we may say so, rather guarded comments, particularly by the Chief Justice for the court, to which your attention has been drawn. And, in our submission, those are not words which bear the weight that has been put on them in the argument against us based upon Wragg’s Case.
In this case, it would require, even if your Honours were against what I have just been saying about Wragg, nonetheless an understanding of this case about whether it really is, to adapt the language in Wragg, at its heart about whether section 35 can be repeated, to use the language of Wragg and that, in our submission, squarely with respect to what is sometimes called primary, that is enacted, legislation of a Parliament whose lawmaking is the subject of supervision by this Court, the question as to whether this Court will entertain proleptic challenges to legislation that does not even appear as proto-legislation in the form of a Bill.
Of course, Bills, notoriously include those things which are not Bills but which are colloquially called draft Bills, and the spectre of the approach that underlies our learned friends proleptic approach in this case, to keep a matter alive notwithstanding the enactment impugned in the proceedings has been repealed, the spectre that lies behind that is, if this Court must entertain as a matter, leaving only questions of utility as to relief and query intermediate questions of standing to be looked at, if this Court must, as a matter of jurisdiction, because it is a matter, entertain the question whether section 35 can be repeated and, if so, whether section 35 bis – that is, upon repetition – would be valid, then why not the more solid possibility of future conduct, such as a draft Bill? And what might be even more solid than that indication of possible future legislation, namely a Bill?
GAGELER J: Mr Walker, you do not dispute that there was a matter at the time of filing in this ‑ ‑ ‑
MR WALKER: No, we do not. We do not.
GAGELER J: So we are nowhere near those scenarios you are talking about?
MR WALKER: Your Honour, if in this case there were a draft Bill – and it does not matter whether it is a Member of Parliament, a staff member of the Member of Parliament or a newspaper editorialist who proposes a draft Bill – the notion that that would provide fit subject matter to constitute a matter for this Court is, in our submission, to be rejected upon statement; it does not. That this Court’s supervisory jurisdiction with respect to the lawmaking of the Parliaments under its supervision is, in our submission, to do with its lawmaking.
Now, leaving aside manner on form provisions, none of which have anything to do with this, that means one waits to see – this Court waits to see – what a Parliament has come up with. The notion that there is any solidity given to the prospect of section 35 either being re‑enacted or being somehow reproduced as to effect in a regulation as making the difference between a matter or not depends upon a prediction which is, in our submission, inappropriate to the relation between this Court and a Parliament.
It is for those reasons, in our submission, that this notion of an undertaking giving rise to some solidity to a controversy about something that has not happened, may never happen, and cannot be predicted as to the possibility of it happening, is something that ought to be rejected by this Court as a means of overcoming the long‑established requirement to avoid mere advisory opinions, let alone about future or prospective forms of legislation.
GORDON J: So, in response to Justice Gageler’s question, does that mean, in this context and in relation to what I might call the future – I assume you are going to deal with the past as a separate topic.
MR WALKER: Yes, as to the past, may I move to that directly. The coals in our learned friends’ argument include an understanding of what Croome’s Case says about it, an understanding about – by way of a sidebar, so to speak – Ainsworth, and also, of course, M68 and Smethurst. They are approaching things, if I may say so, with great respect, from an interesting difference of perspective, and none the worse for that, no doubt.
Could I start, however, with what we would want to say about Croome’s Case being called in aid. There is no doubt that that stands for the proposition that the absence of a threat made concrete by commencement of criminal proceedings does not deny the standing and even the utility of remedy for someone who thereby has a matter concerning the validity of the offence‑creating provision. Thus understood, Croome has virtually nothing to do with the present case.
In particular, and pointedly, it is not suggested that this is a case where, analogously with the position of Mr Croome in that case, there was any prospect of prosecution, however unlikely, for contravention. Because, whereas Mr Croome had contravened – if the law be valid – and it is not suggested that the plaintiffs had contravened, least of all by themselves; they protest to the contrary. And we do not – there is no issue. That, in our submission, is enough to remove a conventional way in which a repeal enactment can continue to be the object of a justiciable matter as to its validity and it does not arise in this case. In our submission, Croome supplies nothing else of usefulness in the analysis of the position that is being reached by the repeal of section 35.
In an addendum to what I have said in response to Justice Gageler’s question to me, may I remind your Honours of something that my learned friend has embraced before – a different or, perhaps, opposite purpose. This is not a repeal that gives rise to the concern that you might see reflected in some of the American cases that it was, so to speak, smart alec tactics by somebody in a position to make or unmake laws – be it a municipal authority or, perhaps, even a representative legislature. It is not suggested, in any sense, that this is a repeal that was enacted so as to avoid this case. It was resisted. And it is not suggested that the statements concerning resistance are not to be accepted at face value in this Court – Article 9 seems to be observed faithfully to that extent and in that regard.
So, one can put to one side the case that has either never risen in this country or has escaped my attention and one hopes would never either recur or occur – namely, the cynical conduct of the majority in the relevant two Houses, plainly having the political will that a law be in effect, seeking to evade the jurisdiction of this Court, properly engaged to challenge its validity with an intent to gain some advantage of a kind relevantly gruesome to contemplate in the interim between the cessation of proceedings rendered moot and the commencement of new proceedings upon the supposed re‑enactment of the impugned law.
All of that is utterly distant from this case. It is too remote and too abusive in its characteristics to provide any guidance of principal for this Court in the far more mundane circumstances that obtain here – namely, that, in the ordinary course of dealings between two Houses of Parliament, matters have fallen out so that the government in the Lower House, without a constant majority, does not always get everything that it wants and all at the same time when it wants it.
It is for those reasons, in our submission, that the notion of founding a justiciable matter upon a speculative possibility concerning which no evidence could possibly be before this Court so as to enable a finding of fact to be made of a quia timet prediction kind – for all those reasons, there is not a matter which can be spelled out from, in particular, a refusal by a polity to give an undertaking about matters internal to the voting of each House and as to the relations between the Houses.
Can I briefly say this about Ainsworth. The whole point about Ainsworth was that, even without being able to sue for defamation by reason of a statutory privilege, something could be done – so the Court considered – sufficiently realistic and substantive in the future to the reputation of a man unfairly denounced as to provide a controversy with sufficient currency so as to permit a person with a self‑evident standing that the man introduced had, and also to bestow at least sufficient utility for the declaration which was given in that case. There is nothing of any kind here, except for the resounding invocation by our learned friend, of the benefits for the people for whose benefit the implied freedom exists with respect to something about the past.
Now, we can put to one side completely the notion that there is anything to be vindicated – let alone by criticism from the Court – concerning the conduct – let alone the outcome – of election affected by section 35, whatever that means. So far as the people being represented by what I almost hesitate to describe as a lawfully‑elected legislature, none of that is in play. Of course, you do not have before you – this is not a criticism by us – from the plaintiffs a program of how much better they would have propagandised but for section 35. Naturally, there is nothing this Court should ever entertain concerning the possibilities that that might have had reflected in different outcomes of ballots.
It is for those reasons, in our submission, that there is nothing other than simply pointing that these are laws to which the implied freedom speaks, because they are laws regulating the conduct of elections for constitutionally‑required representative legislatures involved in our learned friend invoking the people in whose interests or for whose benefit the implied freedom exists. That does not obviously give the plaintiffs standing. The fact that it is something that applies to all of us – to put it colloquially – is, if anything, of course, a demonstration that no one, two or three of us have standing to a certain point.
But as to matter ‑ not unrelated to standing, but distinct – as to matter, in our submission, it does not become more contrary to a controversial controversy currently existing requiring it to be quelled with consequences by reason of the quelling, because it concerned something that was important. That would always be true of a previously operative, now repealed law that regulated comment – conduct – in the conduct of an election. It will always be important, hence the implied freedom. It will not, in our submission, ever have consequences beyond what I might call the political and historical.
There are obviously, and notoriously, controversial matters in our political history that are not entirely devoid of the supposed operation of statutes. The notion that each and everyone of those statutes becomes a fit topic for a justiciable controversy, subject to standing and leaving, as it were, the defence of this Court’s docket down to questions of utility, which come at the end, rather than always at the beginning of a case is, in our submission, again requiring only to be stated to be rejected.
Your Honours, in our submission, M68 is but an illustration of the way in which the link between a past regime now repealed and the present before the Court, with the concern for the future, may, in an unreliable way, provide the existence of a matter. It is true that damages were not sought, but it is not true that they had not been on the hypothesis advanced by the plaintiff. A tort, had that hypothesis being upheld – there would have been a tort, and furthermore, an actual tort, sounding in damages.
Furthermore, the statute in question was – or the regime in question was – one that might have been, as it were, reinitiated, and for somebody who was physically and juristically within the grasp of that reasserted particular authority. That is enough, in our submission, to distinguish, markedly, that case from this. In particular, it is not the law that there is any tort, let alone an actionable tort sounding in damages, committed by a polity whose legislature has erred in purporting to enact legislation later held to be invalid.
Your Honour Justice Edelman raised by way of a comment addressed to our friend the notion that there might be an oddity involved in a principle that saw a difference, unfavourably, to persons who had obeyed laws, from their treatment – for the purposes of the mootness doctrine – compared with persons who had disobeyed laws. So, somebody who disobeyed a law – a Croome Case, for example – having a continued matter notwithstanding repeal, and the other group not.
In our submission, that is not, for the following reasons, an oddity, let alone something which would suggest that persons who do not derive any claim of a justiciable kind, say, for damages, from the invalidation of a law now repealed should be regarded as having had their case rendered moot. That is because – for opposite reasons but based upon the same proposition as my friend put it – of course it is the policy of the law, an aspect of the rule of law, that whilesoever legislation on the books – to use my friend’s appropriate phrase – they should be obeyed except by persons who, with appropriate trepidation, take the risk of being wrong.
With criminal sanction there is an extra reason, normatively, why that might be itself a questionable proposition. This is not the time and place to debate civil disobedience. But, in our submission, of course the Court should proceed on the basis that there is no disadvantage to a person to be visited upon them in some comparison by reason of them having obeyed a law pending inquiry as to its validity.
Your Honours know that injunctions against the enforcement of a law – pending inquiry into validity – Castlemaine Tooheys – either are very rare or highly endangered species – an exception, if anything, that proves the rule. It is for those reasons, in our submission, that there is nothing to be gained in the present situation concerning whether this case has been rendered moot by reflecting that perhaps the plaintiffs might behaved differently and then it would not have been moot because of the possibility of criminal proceedings and why should it be different if they have behaved properly.
In our submission, there is every reason why it should be different – that is, there is no possibility of criminal proceedings – that removes the Croome point – there is no possibility of tort – that removes the M68 point – and it simply leaves the plaintiffs in the usual position of litigants who have raised a question which now can no longer, within this Court’s established limits of jurisdiction, be determined.
Now, I cannot resist adding to that, after all the repeal of section 35 is, so to speak, in accordance with the self‑evident direction of the arguments the plaintiffs have assembled substantively against it as to its validity. A complaint about repeal, properly analysed, is not a substantive complaint that this is a law that should not have been repealed, it is a complaint only about what follows in the train of that repeal as to mootness, and once one puts aside the unthinkable proposition, and utterly incredible proposition, given the facts, that this has been engineered by the State, then, in our submission, it is simply a matter of attending to the consequences of legislative activity.
One comment to add to what has been said in the exchange of writing on this point, I wish to add to our friend’s proposition that they have conformed their conduct to what they allege were invalidly imposed statutory norms, and to raise for this Court’s consideration whether there is not, in truth, a need to show that that has been in breach of some right – and I do mean right as a right – I cannot point to authority that says that is essential, but, in our submission, it is one way of suggesting that there is now no concrete matter with any consequence for the parties concerning the validity of section 35 now repeated. It did not affect a right of the plaintiffs if by right it is said to be that which flows juristically from the implied freedom, which does not give an individual right. It is a freedom or ‑ ‑ ‑
GORDON J: Can I test that – just ask that in relation to two matters. Is it sufficient that it has an interest, and I say that only because it is a TPC registered under the Act and the other matter set out in the case, that it involves itself in political advocacy? There may be other facts and matters, but at least those two are primary.
MR WALKER: Your Honour asks, is it sufficient for standing in relation to conduct as a TPC if there is still a matter? Yes, that would be sufficient, but it is the anterior question ‑ ‑ ‑
GORDON J: My question is directed at the anterior question.
MR WALKER: Yes. No, it is not, in our submission.
GAGELER J: What is the anterior question, I am sorry, Mr Walker?
MR WALKER: The anterior question is whether there is still a matter in a sense of a concrete justiciable controversy after the repeal. In other words, we say the question, did I conform my conduct to an invalid norm imposed by the Parliament – that, in our submission – and I do not mean this lightly, I am borrowing from the authorities – that is merely intellectual curiosity – as it happens about something very important, I do not wish to deprecate the significance of it – the “merely” is meant to indicate that it is not sufficiently solid to provide the stuff of justiciability.
That also tends to veer off into matters of standing and query, even utility, but I am addressing that in answer to Justice Gordon to the question of whether there remains a justiciable matter concerning the validity of section 35. What I am submitting is – particularly because there is no individual right that has been infringed by the putative invalid enactment and the actual historical compliance with section 35 – in our submission, all you have got is an answer to the question – not for the purpose of it establishing any right or liability ‑ ‑ ‑
EDELMAN J: Can I just ask about that? Does that mean that, if the circumstances were such that the right, in the very strict sense that was sought to be vindicated, was based upon a past false imprisonment, but, for whatever reason, there was no claim for damages – so the right was simply sought to be vindicated by a declaration that there had been false imprisonment – that, although the matter would continue in those circumstances, the matter would not continue where the right in a loose sense was the attempt to vindicate a denial of a person’s freedom – or a denial of a freedom to which the person could avail themselves pursuant to the implied constitutional framing?
MR WALKER: The question your Honour asks me, in particular, if I may so, invites further consideration of the difference between the position considered in M68 and in this case, but one could also throw up Croome as well. This case entirely lacks the state of affairs whereby, but for the enactment, a tort would have been committed – M68 – or but for the invalidity, criminal liability would exist – Croome. There is no criminal liability valid or invalid in this case; there is no tort valid or invalid in this case. In other words, determination of that matter will not cast light on either of those central concerns of a legal system. Has there been a wrong recognised, cognisable by the law – a tort? Has there been a criminal wrong committed – a crime? Neither of those applies here.
Your Honours, Justice Edelman’s question also raises, obviously, consideration as to whether it would suffice to dispose of such cases as moot; to observe that only declaratory relief would be sought, and that in some way, the possibility of later damages or other relief had been precluded – I do not know – by limitation period or the like. In our submission, that is to move from the question of matter through to standing, in particular – but, probably, standing in most such cases would be straightforward; it would be a question of utility.
We certainly do not say that if the circumstances of the case render plausible – or even logically possible – only declaratory relief, that is a hallmark of no matter. That would be absurd because a declaratory jurisdiction is a most salutary one, precisely to quibble controversies. But they have to be justiciable controversies, and you do not render something justiciable as a controversy by saying, I can craft a declaration to deal with my desired outcome of the argument.
Your Honours, another argument which, in our submission, really should be seen as a form of utility – perhaps with a passing gesture to standing, but not really central or much informative of matter – is what our learned friend was saying about res judicata – the fact that one can say of holdings by this Court, perhaps recorded in a declaration but because they have that character and providence, they constitute res judicata, does not even begin to answer the question as to whether the controversy said to have been quelled by the making of such declaratory orders was one within the jurisdiction of the Court as presenting a matter within the meaning of principle and authorities. That, in our submission, is really a form of circularity or a conclusion assuming that will not assist.
On the particulars of this case, however, it is to be borne in mind that the supposed reliance upon the, I will call it, “usefulness” – hence the utility point – the usefulness of res judicata is, itself, unmoored in anything concrete between the parties for you today. It would have to – as my learned friend properly volunteers, it would have to be adjudicated – that is, the existence of a res judicata would have to be adjudicated in light of knowledge concerning a future so‑called re‑enactment or imposition of a regulation in similarly material terms. The devil is in the details – that is, res judicata is not, as it were, a fuzzy notion.
This Court is, perhaps, is the best place in the country to illustrate a history of what might be called trial and error concerning the validity of enactments in the face of constitutional challenge. Apparently small changes can work radical differences. In our submission, redrafting and reconsideration of matters – including in light not only of judgments of this Court but of carefully marshalled contrary arguments such as the plaintiffs constitute in this case – is the stuff of legislative conduct of a kind that this Court would never be engaged in by way of giving advice – either from warnings or giving premonitory applause.
All of that is so alien to what this Court’s function is concerning legislative activity that, in our submission, one should put to one side this notion that res judicata – coming from an exercise of jurisdiction by this Court is enough to mean that res judicata would have been made by the exercise of jurisdiction in a matter – that is entirely circular. Otherwise, we rely upon what we have written in this matter. May it please your Honours.
KIEFEL CJ: Yes, thank you, Mr Walker.
MR WALKER: That includes a particular as to the American matter – American authorities to which we have drawn to attention, in particular, Professor Chemerinsky’s comments.
KIEFEL CJ: Do you rely on your written submissions in relation to the question of costs?
MR WALKER: Yes.
KIEFEL CJ: Thank you.
MR WALKER: In our submission, the practice in this Court is clear.
KIEFEL CJ: The Solicitor‑General of the Commonwealth.
MR DONAGHUE: Your Honours will have seen from our written outline that the question of the jurisdiction of this Court to rule on the validity of section 35 is the principal matter that I seek to address your Honours on in the appeal. Our submission, in summary, is that section 35, having been repealed and there being no allegation and no evidence of any contravention of that provision during the period when it was in force, a debate about its past validity cannot constitute a matter. If your Honours accept that submission it follows, of course, that the Court has no jurisdiction, so that your Honours are not in the territory of discretion. It is a conclusion that there is no jurisdiction.
To avoid any doubt as to the submissions I am about to make, the Commonwealth is not addressing the position where a matter becomes moot after a trial but at a time when an appeal is pending. The principles in that context are different because the rights of the parties have been affected by the orders that have been made by the court at first instance, including, usually, an order as to costs. In that context, there is quite a body of authority that says the question of how the appellate court should proceed is a discretionary one because the question is whether or not the court should interfere with the effect on rights of the orders below. So, nothing that I am about to say cuts across that line of jurisdiction. I am concerned with the situation where there is an unresolved dispute in original jurisdiction as to the validity of a statute that is repealed before the dispute is determined.
There are two steps in the argument that we have put to your Honours. Step one concerns standing to challenge a repealed provision. And, in that respect, I will take your Honours to Smethurst. Step two concerns the relationship between standing and the existence of a matter. In that context, I will take your Honours briefly to the recent case in Hobart International, and then I will say something very briefly about the cases that the plaintiff relies on.
Can I ask your Honours to start with Smethurst, which is in the supplementary joint book in volume 2, tab 9. When your Honours have that, can you go to the very end of the case on page 567, where you will see set out the questions that have been stated in the special case and the answers that the Court gave to them. Your Honours will see question (1) was about the validity of the search warrant, and that was the focus of our learned friend’s submissions this morning. You can see that the search warrant was challenged on three separate grounds, two of which concern the statement of the offence, and the third of which, (1)(c), concerned the validity of the offence provision.
Your Honours can see from the answers that the Court answered that the warrant was not valid on the basis in (a) and (b) and that that meant that it did not need to get to (c), the validity question. If we stop there, then it would be right to say, well, the obvious explanation of Smethurst is that it was not necessary to get to 79(3) because the warrant had been held invalid on other grounds. Fine. But read on. If your Honours go on to question (3) that was asked over the page, unrelated to the validity of the search warrant, there was a question stated for the consideration of the Court as to whether the offence provision itself was:
invalid on the ground that it infringed the implied freedom –
And the answer given was:
Unnecessary to answer.
The reasoning that I am about to take your Honours to expresses the reason that the Court declined to rule on a freestanding challenge to a repealed offence provision. It is no answer to that reasoning to say, well, the Court did not need to get there because the warrant was invalid on another ground. That explains (1)(c) but it does not explain question (3).
You can see without going there at [16] and [17] that the Court sets out section 79(3), which was the offence provision, and records that it had been repealed before the issue of the search warrants that were in place. So, it was the offence relevant to the conduct that was under investigation, but it was no longer on the statute book. That posed the question as to whether or not the Court should rule on whether the provision contravened the implied freedom in much the same way as that question now arises for your Honours’ consideration.
If you go to paragraph [105] on page 529 in the joint judgment of the Chief Justice and Justices Bell and Keane, under the heading, “The question as to the validity of s 79(3)”, these three paragraphs are referred to by your Honour Justice Gordon at [198], where your Honour expressly agrees with those paragraphs [105] to [107], so this reflects reasoning of four judges.
The analysis starts at [105] with a reference to the repeal. The second half of the paragraph notes, as Mr Gleeson pointed out, that the plaintiff said, well, we would like:
a declaration of the invalidity of s 79(3) as useful . . . in that it might result in the investigation and the possibility of prosecution being brought to an end.
So, this is a person who is under investigation for having commenced this provision saying, I want you to declare it invalid because that might end the investigation and my exposure to prosecution. That interest was not enough to support a declaration as to the invalidity of the section, for the reasons explained in [106] and [107]:
The difficulty . . . is . . . no interest in questions s 79(3) which sets them apart from persons generally and is sufficient to give them standing.
So, the Court analysis it in terms of an absence of standing to challenge the repeal provision:
A party who seeks a declaration . . . must have a sufficient interest in having their legal position clarified. Unless and until they are charged with an offence under s 79(3), the plaintiffs have no more interest than anyone else –
Footnote 111 as it takes – refers to Kuczborski v Queensland at [175] to [176] – which your Honours do not have in the book, and I do not need to take you to, but that was another case where a plaintiff who did not assert that they had either contravened or intended to contravene a law, was said not to have standing to challenge that law, because they had no more interest than anyone else in seeking to have its validity determined. So, in our submission, the plaintiffs in Smethurst had a much clearer interest in the validity of the passed appeal provision than is asserted by the plaintiffs here. They were under investigation facing the possibility that charges might be laid against them, but the Court said you have no standing to challenge the provision until you are charged.
Here, by contrast, there is nothing to suggest that there is any exposure on the plaintiff’s part to pass contravention of section 35, and indeed, the facts in the special case show, as Mr Gleeson explained, the plaintiffs conforming their behaviour to that provision. So, they are just not exposed in the same way. At [107], the Court deals with Croome, and emphasises, we submit, entirely fairly that the reasoning in that case depended on the fact that the law criminalised relationships with other people, pleaded that they had engaged in conduct which, if the provisions were operative, rendered them liable to prosecution, conviction or punishment. That is, their past conduct exposed them to legal consequences that would be removed if the provision were declared to be invalid.
The contrast that is drawn in the last sentence is that the plaintiffs in Smethurst did not say their past conduct had contravened 79(3), just as, of course, the plaintiff makes no such claim. As to your Honour Justice Edelman’s question about the policy of the law – we respectfully agree with Mr Walker’s submissions on this point. It would, of course, be contrary to the policy of the law if you could not challenge an existing law without breaching it. But no one is suggesting that where the law remains in force, the only way to get standing to challenge that existing law is to break the law.
But where the law is no longer in force and no one is suggesting that you breached it in the past, in our submission, there is no inconsistency with the policy of the law to say, it is interesting to know whether that past law was in force, but that is all there is. It is an intellectual interest and concern, which – if you wish to have it litigated – needed to be litigated before the provision seeks to being put.
GORDON J: Is that being more to say that there, on your analysis – I think this is right – that there is no right, duty or liability that remains in controversy between the parties to be resolved?
MR DONAGHUE: That is exactly what I submit, your Honour. And that is the next step I am going to, because, from an analysis in terms of standing, one goes then to the question, is there a matter, is there a right, duty or liability in force? And the way your Honours explained the intersection between those issues in Hobart International exactly conforms to what your Honour just put to me, I respectfully submit. Can I take your Honours to that case, which is in the supplementary book, volume 2, tab 3.
GAGELER J: Mr Solicitor, just perhaps before you do, the statement at the end of paragraph [106] with reference to Kuczborski, is it not a statement to the effect that someone who is being investigated for a criminal offence does not thereby have standing to challenge the law creating that offence? Kuczborski was a current law. That was Queensland legislation then in force.
MR DONAGHUE: Yes, yes, it was a current law that was in force but where there was not any allegation, I think, your Honour, of an active investigation. So, there was no – the plaintiff did not say, I have contravened it in the past, and they did not say, I am being investigated or otherwise treated differently, they just said, I want to know whether or not this law validly applies to me or not, and that was not sufficient.
Here, in my submission, it is not sufficient for my present purposes to say that in the context of a repealed law which has no possible future consequences that you cannot differentiate yourself from the world at large sufficiently to have standing unless and until you are charged. I take the force of your Honour’s question to be, well, why would not the same provision – the same position apply prospectively, but I do not need to go there because I am relying on this case in relation to standing to challenge a repealed provision and, in my submission, I have four members of the Court ruling expressly that there is no standing at least until the person is charged. Now, could someone seek to narrow that paragraph if the law was still in force? Perhaps, but that is not this case, and not Kuczborski either.
In Hobart International your Honours will recall, in a quite different context, there was quite some argument in terms of the connection between standing and matter, and all of your Honours addressed that topic. In the joint judgment of the Chief Justice and Justices Keane and Gordon at paragraph [29] there is a heading “Justiciable controversy” where your Honours explained that:
Central to both the notions of judicial power and “matter” –
is what was identified as “the second element”, separately from the subject matter element:
the requirement that the dispute involves a “justiciable controversy”.
Citing Re Judiciary and Navigation Acts:
The established position remains that “there can be no matter . . . unless there is some immediate right, duty or liability to be established –
Mr Walker gave some examples, tort, criminal liability, as obvious possibilities that might constitute that right in relation to past conduct.
But if one asks what is the immediate right, duty or liability to be established by the repeal of section 35, in the context of the repeal of section 35, in our submission, the answer is not apparent. That ties in with the analysis of absence of standing from Smethurst, because at paragraphs [30] to [31], you see the plurality judgment answering the question, is there a justiciable controversy by reference to the question whether the plaintiff has standing.
That being appropriate because, in the context of federal jurisdiction, questions of standing are subsumed within the requirement of a matter. They are subsumed because part of the matter requires a justiciable controversy and, in order to have a justiciable controversy, you need a plaintiff with standing. So, the conclusion of absence of standing feeds in to the wider matter question by demonstrating the absence of the justiciable controversy. Your Honours Justices Gageler and Gleeson, in your joint reasons, at paragraph [49] – as we read them – explain the concept in a very similar way:
the justiciability of a controversy –
Depends on:
an existing legal right or obligation –
Sorry, a controversy about an existing legal right or obligation, which I have already addressed – and then requires the two things that are there identified, the second of which is:
the right of one or more of those persons to seek that order from that court. Standing, in the sense of a right to seek from a court an order that would operate to resolve the controversy, is in that way inseparable from justiciability and, therefore, is intrinsic to the existence of the matter –
In dissent, your Honours Justices Edelman and Steward, at paragraph [79] gave a similar explanation, and at paragraph [83], your Honours expressly said that the difference was one of application not principle.
So, in our submission, the whole Court in Hobart International explained the earlier references in the authority to “standing” being subsumed by “matter” by saying, well, if you do not have standing there is not the justiciable controversy part of a matter and thus no matter – no jurisdiction. That is why we respectfully submit that this case should be analysed not in terms of discretion but jurisdiction.
The idea that your Honours explained in Hobart International is, we submit, very similar to that captured in a single sentence in the United States Supreme Court in a case your Honours do not have, though it is referred to in the Chemerinsky book in the joint book of authorities at volume 8, tab 38. Their Honours in the United States Supreme Court said:
mootness [is] the ‘doctrine of standing in a time frame –
That, we submit, captures the idea that if there ceases to be a justiciable controversy at some point before judicial power has been exercised, the consequence is standing falls away and the matter falls away.
Your Honours, I will not take you to M68, but I make two points about it. First, as your Honours can see at paragraph 19 in the plurality reasons and at 61 to 62 in Justice Bell’s judgment, in that case the Government of Nauru had announced an intention to allow asylum seekers in Nauru freedom of movement, and had said:
the arrangements were to be made the subject of legislation at the next sitting of the Parliament –
So, what had happened was, administratively, changes were being made to allow freedom of movement in Nauru, and there was a contemplated legislative change that had not happened yet. That is relevant to the question of risk of reversal or change of future conduct because all that it required was a change in the administrative steps taken by the Nauruan government officials rather than legislative action, unlike, of course, this case.
Second, and this, I think, has probably come out sufficiently in argument, there were two dimensions to the Court’s reasoning about why the matter should proceed. One was that it would resolve the lawfulness of past detention, and the other was the possibility of future repetition. The lawfulness of past detention was enough, and I think your Honour the Chief Justice put this to my friend, but on that basis alone there was a matter because the Court’s ruling would determine possible liability for false imprisonment. So, the case did not need or depend upon the future repetition idea, the significance of which I will come to in a moment.
Your Honours, I probably need five or six minutes. Would your Honours like me to proceed or to stop now?
KIEFEL CJ: How long would you be in reply?
MR GLEESON: Five minutes, your Honour.
KIEFEL CJ: Perhaps you should proceed.
MR DONAGHUE: Thank you, your Honour. As to re-enactment, can I ask your Honours very briefly to go back to Wragg – I will be quick on this, it is in the supplementary book, volume 1, tab 2. I do not want to overemphasise the significance of this case, but my submissions are directed to avoiding that outcome. As your Honours have been told, there was a Prices Regulation Act; there were price regulation orders made under that Act. In between those two steps, there had to be a declaration made by the Minister that particular goods were declared goods. The Minister had made the declaration about potatoes – price regulation orders were made under that, or in consequence of that, declaration. And they changed a lot.
The special case records, on page 354, quite numerous variations with the repeal on the placement of the price orders. What had happened in Wragg that prompted the issue was that the Minister revoked the declaration about potatoes, so it became impossible for there to be future price regulation orders made thereunder. And that, as your Honours can see on page 367, prompted the defendant to apply for a stay of the case, because they said, well, there can no longer be orders made under this.
What then happened – and then Mr Gleeson has referred your Honours to the press release saying the Minister would not hesitate to reimpose price controls, that is the declaration the Minister had revoked about potatoes, if there were an unwarranted increase. So, there was a threat of action under the primary legislation of taking action that would reverse the consequence that was said to have rendered the matter moot.
Sir Garfield Barwick at 369 – and your Honours will have seen some of this analysis – did say that the threat of re-enactment was enough. But Sir Garfield then immediately pivoted, as you can see in the middle of that page, and says at the end of the report of his argument at that point:
The plaintiffs’ claim, as it is now before the court, is . . . for a declaration as to the extent of the power granted by certain sections of the Prices Regulations Act –
And then in reply over the page at 370, Sir Garfield very heavily emphasised that aspect of the case:
The principal declaration sought by the plaintiffs does not depend upon the existence of a price-fixing order or declaration. One of the declarations so sought is to the extent of the power conferred, for example, by s. 20 of the Act.
So, the argument the plaintiff had pivoted to, post the repeal of the declaration, was saying, I need to know whether the Act empowers you to take these kinds of steps because I am major potato producers and importers. While it is true that at the end of that argument – as Mr Gleeson pointed out – Sir Garfield did maintain his argument about the remote orders, he – as your Honours will see in a minute – lost that argument.
So, it was over the page – having heard an argument that included a significant focus on the power in the Act itself that the Court says, you may proceed – we do not propose to tie our hands but we are impressed with the view that what is at issue is whether what can be done can be repeated under that Act that had become the focus of the argument. That passage – which is the passage from Wragg that is usually quoted – is not part of the judgment of the Court. If your Honours – after you hear Mr Gleeson in reply – go outside and discuss how to proceed and then come back and allow him to proceed with his challenge on section 35, one would not expect 70 years later that the language your Honour the Chief Justice uses in announcing that course of action to achieve the focus that Wragg has achieved.
What happened in the judgment was that the Chief Justice said – albeit framed in terms of relief as your Honour Justice Steward mentioned earlier – we should not make declarations without these revoked orders. So, while the Court allowed the argument to proceed, the case is authority for the proposition that you should not get relief in relation to these declared orders, which is what you see at the end of page 388. Justices McTiernan, Williams, Fullagar and Kitto all agreed with the Chief Justice. So, Wragg is concerned with repetition of conduct under a statute that is said to be valid where the validity needed to be ruled on.
Finally, your Honours, I will not take your Honours to any of the US cases, but as we have noted in writing the US cases at the Supreme Court level have – and this is quoted in the Town of Portsmouth Case that your Honours have the reference to in our outline – the First Circuit Court described the Supreme Court jurisprudence as having:
consistently and summarily held that a new state statute moots a case –
The lines of authority that our friends rely on are cases where delegated legislation, able to be turned on and off by an official rather than through a legislative process, was in play and where there were facts that showed either an express threat to reintroduce the delegated legislation – that is Mesquite v Aladdin’s Castle, you see the express threat recorded at 289 in footnote 11 – or actually a new ordinance already having been made that repeats the problem, albeit on narrower terms – that is Northeastern Florida that our friends rely on.
The only exception to that that our friends have pointed to is Massachusetts v Oakes, and again your Honours do not need to go there. That is said to be inconsistent with our summary of the Supreme Court’s practice. Oakes was a case where Mr Oakes had actually been convicted of the offence before it was amended. So, it was an offence about exhibiting minors in a state of nudity. The offence was subsequently varied by the legislature to add a lascivious intent element that had not been in place at the time when Mr Oakes was convicted. In the Supreme Court, Justice Scalia with the support of four other justices said, the subsequent amendment cannot possibly be relevant because he was convicted under the offence in its unamended form.
So, the subsequent amendment does not moot a case by someone who has already been sentenced for having contravened the unamended
provision. That is unsurprising and not an exception because no one would suggest that an amendment post‑conviction – well, no one in Australia would suggest that an amendment post‑conviction rendered it impossible to challenge the prior offence.
If the Court pleases.
KIEFEL CJ: Yes, Mr Gleeson.
MR GLEESON: Thank you, your Honour. The submission you just heard is inconsistent with page 586 of Justice Scalia’s judgment. The part where he prevailed and the majority failed was on a question whether the overbreadth aspect of the case could be considered as part of the statute having been repealed.
Your Honours, in response to Mr Walker, we have four points to make. The first is the suggestion that to ask the State for an undertaking not to re‑introduce the matter, e.g. by regulation, was somehow a misguided transference from the commercial field – and the State was entitled to say nothing – ignores the fact that in Wragg, at page 369, that was one of the very steps taken by the claimants. There can be no difficulty in the State, represented by the Executive as they are in this Court, indicating whether or not they propose to exercise the power under section 156 to make a regulation within the short period I am referring to.
Secondly, we would ask your Honours to reject the submission that there needs to be something like the possibility of criminal proceedings or a damages action before the Court can adjudicate upon the past controversy – that is too narrow. An example where that approach would be too narrow is M61, at paragraph 103, where there was no such interest involved.
Thirdly, your Honour Justice Gordon raised whether the TPCs have a special status under the Act and whether that feeds into the argument. They do, of course, through the registration regime – under sections 116 to 120 – which, in turn, bears upon the cap. One of the important parts of the regime is their identity is to be disclosed, and people can make of that as they will.
Penultimately, the suggestion that res judicata is unmoored from this case should be rejected. The res judicata will be simply, this form of section 35, situated in this scheme, is invalid.
Your Honours, finally as to costs, your Honour the Chief Justice asked if Mr Walker relied upon his written submissions, and he said, yes. So, we understand, if we get to that part of the case, the difference between the parties is to be, there is said to be an ordinary rule that we cannot get
costs unless we prove their conduct was unreasonable, and we cannot prove their conduct was unreasonable. We would suggest the costs discretion should be approached having regard to the circumstances of the case. They involve plaintiffs who, over seven months, attempted to have the State withdraw a law said to be invalid, the State refusing to do so, the plaintiffs had to commence this proceeding when they did, otherwise we would place the Court under impossible difficulty in trying to get a hearing before the March election – as Justice Keane said on the directions hearing – all the costs have been incurred, the law is withdrawn just before the hearing. We submit costs should follow the event in that circumstance, the event being that the costs should be paid by the State.
May it please the Court.
KIEFEL CJ: The Court will now adjourn until 2.30 pm.
AT 12.55 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.30 PM:
KIEFEL CJ: The Court has considered this morning’s arguments. At least a majority of the Court would answer either question 1A(a) or (b), of the further amended special case, “no”. It is therefore unnecessary to hear further argument on question 2. Reasons will be provided at the same time as those given respecting question 1, and orders will then be pronounced. Costs on those questions are reserved.
Yes, Mr Gleeson.
MR GLEESON: May it please the Court. Your Honours, in terms of our outline, that leaves paragraphs 4 through to 9. The order I was proposing was to come back to paragraphs 4 and 5 near the end – they are issues of principle which are important – but, really, to move straight to paragraph 6,s which is to have a close look at section 29(11) to see whether it fails at the level of purpose or justification. So, your Honours will need the Act which is in volume 1, at tab 1.
The objects which are set out in section 3 are not said by the plaintiffs to be incompatible with the Constitution at the level of generality with which they are expressed and, in that sense, the plaintiffs’ position is the same as it was in Unions (No 1) and Unions (No 2). But, coming directly to section 29, that provision establishes the applicable caps on electoral expenditure in the various State election campaigns, and so on, as modified by section 30. Subsections (2) to (8) deal with general elections. In the version before your Honours, subsection (10) is the former provision for general elections declared invalid in Unions (No 2) and replaced in the amending Act by higher caps and the dispute concerns, in particular, subsection (11), where the applicable cap for a by‑election for a TPC is $20,000.
The first point we make is a point about relativity, that on the face of it, the by‑election cap for the TPC of $20,000 is one‑twelfth of the applicable cap for any candidate under subsection (9). On the face of it, that extraordinarily sharp differential cries out for close scrutiny at the stage and purpose, if not justification. The second point we would make it about the cap is that it has to be understood against the definition of electoral expenditure in subsection (7) – the point which your Honour Justice Gordon made in Unions (No 2) at paragraph 139.
Subsection (7) carries extraordinary breadth as to the types of things which can be electoral expenditure. We start with matters considered to be very important in ACTV, such as the use of radio and television, but it extends to a range of other matters of the broadest kind. The one change that has been made relevant to this issue by the amending Act is that travel and accommodation is now excluded; and that is for everyone, not just for TPCs.
GORDON J: Is that subsection (4)(a)?
MR GLEESON: Yes. And that, we would submit, is of no relevance in resolving the present disputes because it is a minor change, it is the same for everyone, it does not improve the relativity problem. Travel and accommodation for the Unions was a small part of the expenditure they were making.
KIEFEL CJ: Your point, I take it, is that $20,000 does not give you much to spend in relation to these matters.
MR GLEESON: It does not, your Honour. And, in one sense, I could sit there, and pretty soon – and I will sit down as soon as I can – but our point is – and your Honour Justice Gageler adverted to this in paragraph 80 of Unions (No 2), notwithstanding your Honour’s views on purpose differed a little from your Honour Justice Edelman’s views. Your Honour recognised, at paragraph 80, there can be cases where the cap is just so low on its face – absolutely, or relatively, or both – that it does cry out for scrutiny at the purpose stage, and if not, you may well fail justification stage. This is such a case. And $20,000 does not buy you much. It certainly does not buy you a TV or a radio ad, as I will show on the evidence. So, the very forms of communication which in ACTV were critical, and not to be denied to TPCs, really are denied by a $20,000 cap. I will show you some evidence on that.
So, the first point: the relativity is, dare I say, shocking. The second point: once one looks at the breadth of electoral expenditure, absolutely, $20,000 is not going to allow you to mount an effective campaign if you wish to reach much of the electorate in a by‑election. The third matter is this. Your Honours will notice that the cap in subsection (11) is imposed on the TPC, and the cap in (9) is imposed only on the candidate. It is not imposed directly upon a party. Now, we pointed that out in‑chief, that the party who may well have an infinite number of reasons for campaigning in a by‑election, does not have a direct cap. The State’s answer is to rely upon section 30(3) to say that if a party spends money endorsing its candidate in a by‑election, that will be added to the candidate’s cap.
So, that partially relieves the problem but does not solve the problem because it leaves a party completely free to spend money in a by‑election as long as it is not on that party’s candidate. To give one instance where that has actually occurred, in the special case at paragraph 88d:
In the Upper Hunter By‑Election –
that I will be placing some emphasis on:
the then NSW Premier . . . campaigned for –
the candidate, endorsed by the coalition party. So, that expenditure is completely uncapped in by‑elections, and the point is broader than that because a party may choose not to run a candidate at all in a by‑election it cannot win and then has no cap for any money it spends for or against any other candidate. Now, that is a glaring problem in the scheme which exacerbates the problem with the level of relativities. So, your Honours, they are the problems on the face of the statute, but that is our proposition 6.
GORDON J: Just so I am clear, so it is differential, absolute amount ‑ ‑ ‑
MR GLEESON: Absolute amount.
GORDON J: ‑ ‑ ‑ and then the capacity of a party to participate in a by‑election where it does not itself have its own candidate?
MR GLEESON: Yes. They are the three points on the face of the legislation. If that was all you had, we would submit you would find it invalid. That is our proposition 6.
GLEESON J: I am sorry, Mr Gleeson. It is put against you that a comparison with historical expenditure is relevant to demonstrate that $20,000 is not derisory.
MR GLEESON: Yes. I am going to come to that a little further, but the direct answer is, your Honour – and that is the best the State has really got. That is the one thing they say fills the gap. You cannot deduce from the fact that parties who are labouring under caps which are said to be invalid because they are so low, and did not spend up to the full cap, thereby had a cap which gave them a sufficient opportunity to present their case.
In particular, I will show you that $20,000 does not get you a radio or a TV campaign. So, someone facing a $20,000 cap cannot even start to think, should I try to get my message out by radio or TV, because you know it is criminalised. So, if that is the best the State has got, and bearing in mind it bears the onus – which the Court made very clear in Unions (No 2) – it fails. So, before I come to that material which will be in paragraph 9 of our outline, I will just deal with paragraph 7, if I might. This is the legislative history.
Now, this is partly a rerun of the argument in Unions (No 2), but it is even clearer for this reason. The progenitor of this provision was section 95F, introduced in 2011. At that stage, the cap was $20,000 for a candidate – sorry, $200,000 for a candidate and $20,000 for a TPC. So, it was a 10 times differential. We do not accept that that original cap of $20,000 was ever reasonably sufficient to present a case. In that sense, our position is different to the position in Unions (No 2), but we do observe that the current cap, which has been left at the $20,000, when the cap for candidates has the benefit of indexation and so is $245,600, has gone from being one‑tenth to one‑twelfth of the cap of a candidate.
So, your Honour Justice Gordon, I said we had three points on the face of it. The fourth point which comes from that very straightforward part of history is that the obviously inadequate capping 2010 has been made worse by the 19 per cent differential that has been introduced in the 2018 Act because, bizarrely and for no reason, candidates have been given the effect of eight years’ indexation and TPCs have not. When I say bizarrely and for no obvious reason, the only inference one could draw was, this is a further step to shut down TPCs’ speech.
Your Honours, that is the first aspect of history in our proposition 7. The next aspect of history is that the 2010 JSCEM Report – which is volume 9, document 182 – did not contain any material addressing the by‑election cap at all; that is, any material addressing either its relativity to the candidates’ cap or, whether $20,000 was enough to mount a campaign.
I observe that in Unions (No 2) your Honour Justice Gageler asked a number of times in argument about what material there was to justify the State general election cap. In relation to the by‑election cap, the position is even clearer for us because this was the report which did lead to the general election caps, but it said nothing about where the by‑election cap came from. So, I refer to the document, which is 182, not because you will find anything in it, but because you will not. The critical recommendation, which is on page 2019, is wholly silent on by‑elections and the material that does discuss caps is about general elections.
So, there was no material in that report or otherwise before the Parliament in 2011 to explain the differential, or to justify $20,000 as a reasonable opportunity to present one’s case.
GORDON J: When you say nothing before the Parliament, do you mean as a result of the amendments made in 2010 which commenced in 2011?
MR GLEESON: Yes. The next step in the history is the 2014 expert panel report, which is volume 10, at tab 183. That is the report the Court considered in Unions (No 2), particularly the material at page 2432 under the heading, “Third‑party campaigners”. This was the recommendation to halve the cap for general elections. The recommendation in terms is found on page 243 – recommendation 31 – and the detail of the argument is found on pages 2533 and 2534 and, perhaps, all the way over to 2536.
That is the material which in Unions (No 2), the whole of the Court found either the level of purpose or the level of justification could not support the validity of a cap for general elections at the level of $500,000. The report is completely silent on the by‑election cap as to whether $20,000 is sufficient to mount an argument or as to whether it should be reduced by reason of the indexation that the other caps are taking the benefit of.
So, there is nothing in the 2014 report to deal with the problem. The 2016 JSCEM Report, in the same volume – which is document number 185 – this, again, does not deal with ‑ ‑ ‑
KIEFEL CJ: What page is that, Mr Gleeson?
MR GLEESON: It commences at page 2619 – but, particularly, on page 2631 at the top. Recommendation 7 was the critical recommendation which illustrated the problem in Unions (No 2) because the Committee did recommend the cap be reduced for general elections but said there needs to be evidence a TPC:
could reasonably present its case within this expenditure limit.
That evidence was never marshalled for general elections, which is why the cap failed in Unions (No 2) and no such equivalent evidence was ever marshalled by any parliamentary report or consideration for the by‑election cap. So, again, you will not find anything in that document talking about by‑elections and the specific discussion – which is on pages 2681 to 2683 – is tailored to general elections.
That brings me to proposition 7(c) – which is, there is nothing in the direct extrinsic material for the 2018 Act which explained either why it was being reduced by 19 per cent or whether a TPC could reasonably present its case within a $20,000 cap. So, the problem was an a fortiori of the problem the Court dealt with in the previous case.
So, your Honours, that is our submission on the legislative history. It does lead us to make the proposition, in paragraph 8, that the law – that is, this law – cannot be explained as a law directed to restricting the voices of TPCs who would otherwise dominate the debate so as to make room for the candidates and parties to be heard, which is the way your Honour Justice Gageler in the second case, said that the purpose requirement was satisfied in the other law. The only purpose, we would submit, you can find is to quieten the voices of TPCs relative to candidates and parties, which would bring it within the same category as your Honour Justice Edelman dealt with at paragraph 222 but a fortiori on the matters I have just shown.
GORDON J: Can I just ask one question about the legislative history?
MR GLEESON: Yes.
GORDON J: You stopped at a point where, as I understand it, before the decision in Unions (No 2) and then what then transpires. Do you place any reliance on what happens after that?
MR GLEESON: Yes, because the law is ‑ ‑ ‑
GORDON J: I just do not see it referred in your outline.
MR GLEESON: It is buried in our proposition 9(e), your Honour.
GORDON J: I will be quiet then. I apologise.
MR GLEESON: No, no. It could have gone in either places. The culmination of legislative history is look at what happened leading up to this amending Act – the 2022 amending Act – because, unlike the 2018 Act, which, in a sense, was an amending Act, here the Parliament yet again had a chance to look at this question. It had been squarely put on notice of it.
I should just take your Honours perhaps to those documents at proposition (9)(e), which is volume 13 of the special case. So, the document at 314 was the 2020 JSCEM Report. At page 3754, you will find complete silence on the by‑election caps. The only recommendations potentially relevant are recommendation 6 – but that is about the general election – and 7 – that is about removing travel and accommodation expenses.
Interestingly, third‑party campaigners are discussed at page 3781 to 3782. Then that leads to recommendation 6, which is about the general elections. There is simply nothing there to deal with the glaring question. Recommendation 7 is on 3793; there is nothing there to exist. And then, the government response, which is at 315, they are the recommendations – sorry, the government’s intended response – and at 3947, there is a generalised statement of intention to progress amendments to the EF Act re TPCs, but specifics to be worked out; recommendation 7 is noted. So, recommendations 6 and 7 are noted, not directly agreed, and nothing there to address the by‑election problem.
So then, the final part of that history is the referral to the JSCEM – is at document 318 and it is very similar to what happened ‑ ‑ ‑
STEWARD J: What is the page number, sorry?
MR GLEESON: I am sorry, your Honour, 3973.
STEWARD J: Page 3973, thank you.
MR GLEESON: It is very similar to what happened with Unions (No 2). In the middle section, the Attorney refers to JSCEM – an inquiry into and report upon whether the amount of the cap – $20,000 – is reasonably adequate, in accordance with the:
enclosed terms of reference –
where:
the amount . . . has not been considered by the Committee since . . . 2010.
Well, the 2010 material does not reveal direct consideration of the amount by the Committee at all. So, in answer to your Honour Justice Gordon, there is a correct recognition that this needs investigation and report, and there is no report. And because there was no report, you will see the Attorney’s letter at page 3983 – that is the position ‑ ‑ ‑
GORDON J: Were they to report before the election could be called? Was there a deadline for the reporting?
MR GLEESON: The deadline was 30 May this year – that is page 3974 – the deadline has been long since missed. So, with no report, nevertheless, at document 321 – which is page 3986 – the Bill is introduced into and passed in the Lower House, and at page 3989, Schedule 3[11] increases the caps for the general elections and it is completely silent on the by‑elections.
That, subject to what we have heard about this morning with section 35 being deleted, becomes the law and in the direct extrinsic material at document 322 at page 3994, the top part of the page is the only material on the amendments to the caps – it deals with the general elections – it is wholly silent on the problem with the by‑elections.
Interestingly, your Honours will note with the general election cap – which has gone back to the original cap, which people accepted was okay in 2010 – the indexation has been allowed. So, complete silence on the by‑election, but also not even addressing the 19 per cent effective reduction in the by‑election cap from 2018 because of indexation.
So, up to that point, having dealt with the face of the text plus the legislative history to date, we would submit the law fails its stage of purpose, but let it be assumed it survives at least to the stage of justification – this is our paragraph 9. The first thing we would draw attention to in the special case is that ‑ ‑ ‑
EDELMAN J: Well, if it is to survive to the state of justification there has to be a purpose identified, what is the purpose that you say, as an alternative case, would be the putative purpose that is justified?
MR GLEESON: We cannot identify any because there is just no link between this law, the way it has been exposed, and the high‑level purposes of the scheme which are accepted to be okay. So, this just falls into the category, which sometimes happens, where a particular provision is just disconnected from the legitimate purposes which justify the scheme.
KIEFEL CJ: So, you say it is like Unions (No 1)?
MR GLEESON: It is Unions (No 1), and whereas in Unions (No 2) four of your Honours assumed purpose but – simply to get to justification, and three of your Honours took slightly different views on purpose, we say this case is just clear because you cannot identify a purpose.
EDELMAN J: But the assumption would be so artificial that it would defeat the exercise.
MR GLEESON: It would, but if one has to do it and then if one is attempting to do structured proportionality, one is then trying to say, well, one is trying to work through suitability, compatibility, necessity, adequacy and the balance. It all just becomes impossible, which is what happened in Unions (No 2). But this is an a fortiori case because the problem with the by‑election cap was it was never set at any level that could possibly provide a meaningful chance to participate. It was never reviewed and, in fact, it was just decreased by not allowing for indexation.
But in the event that one needs to go any further, I just wanted to show your Honours what is in the special case, and this also comes back to your Honour Justice Gleeson’s question about what the State says about what people have done.
The first point we would make about the special case is at paragraphs 21 to 22. That is to say, if your Honours read that summary in reverse order, that is, commencing on page 4256, one will see that over the last 10 years, by-elections have tended to increase in frequency, and the energy of third‑party campaigners to express messages in those by-elections has also increased in terms of more and more money is being spent – not on every by-election but on ones that are considered to be important to communicate messages to the voters. So, by-elections are an important part of the process.
I then want to – this is proposition 9(b) – focus in particular upon the 2016 Orange by-election. Your Honours will see on pages 4254 that the first plaintiff spent most of its cap and some other Unions spent various amounts. The ETU spent 75 per cent of its cap. The AMWU, for reasons not explained in the case, may have exceeded its cap, but the Court is not asked to make findings on that because that would involve the criminal law. But there we see the base expenditure, and then what the Court will find between paragraphs 39 and 52 of the special case, is a more detailed working through of what happened in respect to the Orange by-election.
I will just deal with it in summary form and then take your Honours, perhaps, to the two or three documents which are the highlights. You will see from paragraphs 39 and 40, it is a very large electorate and an attempt to reach even a substantial part of that electorate in person is going to cost a very considerable amount of money in terms of staff time. You will see from paragraph 42 that the original proposal by Unions New South Wales, which was drawn up at a time when the cap was not being considered, produced a proposal which, paragraph 42(e), would have cost:
$35,800 excluding the cost of radio –
And, you can see from the details, excluding TV. For $35,800 you get no radio, no TV, you get one person on the ground, you get some T-shirts, a little bit of social media, a few corflutes, and so on. So that, as an agreed fact, is enough of itself to say that the cap – which then was $24,700, is now $20,000 – it is not adequate ‑ ‑ ‑
GORDON J: You would have to take out accommodation – you would have to take out the (4A) costs.
MR GLEESON: You take out the accommodation that there is not much in there, and that tells you that the cap, both then and certainly 19 per cent reduced, does not allow you to present a campaign which has a reasonable chance of reaching most of, or many of the constituency. And, in particular, denies you radio and TV, which ACTV said were so important. Now, the cap perhaps was brought into account because, whereas 42A shows a revised proposal, would have increased even further, the final proposal, version three, brought it back just under $24,700, so it still would have infringed the current cap.
You can see in 44, to do that slimming exercise, you are really cutting down a weak campaign into a very weak campaign. Or, you are cutting down a very, very modest campaign into an even more modest campaign. You cannot even get as many how-to-vote cards as you want, and you are losing half your corflutes. So that shows you the problem of the cap.
If your Honours then go to 51, that is the material I have shown you earlier as to what the various Unions spent and, in total, they spent what I might call a mere $63,000. Then, you compare that in 52 to what was spent by the parties and the candidates, you have got the National Party candidate spending $238,000, Country Labor $54,000, Mr Nile’s Party spends more than a TPC’s cap, as do the Shooters and Fishers. You can see from that that the total expenditure of the parties, very roughly, is in the order of $350,000.
And so, what is happening behind that are a couple of things. Firstly, as I will show you in a moment, the parties have access to radio and television which are just not available under the TPC cap. But secondly, any suggestion that a cap of $20,000 for a TPC is necessary to prevent the drowning out of the parties is, with respect, fanciful on that material. The status of this material is it is agreed fact before your Honours, so it is here in a constitutional challenge as constitutional fact. It is also material, to come back to your Honour Justice Gordon’s question, which the Parliament could have had regard to, and should have had regard to, had they been attempting to address the gap which the Court exposed in Unions (No 2).
Your Honours, I said I would go to one or two of the underlying documents to flesh that out. If your Honours have volume 7, please, tab 137.
GORDON J: What page number is that, please?
MR GLEESON: That is page 1519. That is the original proposal, 1520, point 3 it is going to be “a field and an online component”, no radio and TV. Point 5, there will be one organiser only and you see a few T‑shirts, a bit of social media, radio over the page, cost unknown, so it was put in there as something that would be desirable but was clearly prohibitive given the cap had already been used up.
The materials, you can see what you get for $17,600, that is almost the entire cap. You get some corflutes and how-to-votes, et cetera, estimated cost is $35,800.
On page 1522, at the bottom, you can see the key issues which the campaign was seeking to highlight. That illustrates that TPCs regularly are not simply single issue, but they are seeking to elevate a whole range of issues of importance to their members and constituency in a by‑election – and you cannot do that, even for the $38,000. The revised proposal – as it finished up – is document 138, page 1524 – and that is everything slimmed‑down. You do not get much – you still do not get radio – no one even contemplates TV – and the cost brings it just within the limit.
STEWARD J: Mr Gleeson, is there anything in the materials which would support the proposition that TPCs had wanted to use television in by‑elections?
MR GLEESON: I will just check that, your Honour. I will just come back to that, your Honour.
STEWARD J: Sure.
MR GLEESON: It may be, as I have just put it, that given radio was out of the question, cost unknown ‑ ‑ ‑
STEWARD J: It may be.
MR GLEESON: ‑ ‑ ‑ and when I show your Honour in a moment what you could almost take judicial notice of – that you cannot get a TV ad for the cap. What that left – and I am not downplaying the significance of it – but what it left available to the TPC was the sort of campaigning you would see behind document 141 – that is around page 1537 – and a lot of community organising and events, people dressing‑up in T‑shirts and expressing their messages – which some of these documents record. Page 1555, shows there was a rally in a park and page 148 – that is page 1566, shows you ‑ ‑ ‑
STEWARD J: Sorry, what was that page?
MR GLEESON: Page 1566.
STEWARD J: Thank you.
MR GLEESON: It shows you the sorts of rallies that could be achieved using your T‑shirts and displaying your corflutes and so on. So, was some campaigning available for $20,000? Yes. Could you say that this cap allowed you a reasonable opportunity to have a real chance of influencing the outcome? No. Is there any prospect you were drowning out the parties or the candidates? No.
So there are only two by‑elections I need to illustrate this point, your Honours. That is Orange, the second one – if your Honours will bear with me for another five minutes – is Upper Hunter, which was after the Act came in. The relevant facts are paragraphs 85 through to 92. Upper Hunter is also a large geographic area which would require quite some effort to reach most of the people.
In paragraph 87, no “TV, radio or print”. Indeed, no “flyers or how‑to‑vote cards”. 87.c.i. tells us because you have to add staff time to it, for 56 hours of staff time, that is going to use up 20 per cent of your cap. So to get one person there, let us say for a seven‑day week, you have used up 20 per cent of your cap already. So, that is a good illustration how miserly the cap is.
Then you see the expenditure – this is paragraph 89, your Honours – you will see that in relation TV, Unions spent nothing, the National Party candidate spent $85,000, as well as $27,000 on radio advertising. You see in relation to signage, Unions had nothing available in their budget as against $20,000. As the subtotal for what are really the first category of electrical expenditure in section 7, you have Unions spending half their cap and the National Party candidate 16 times Unions and the Labor Party candidate eight times Unions. Then you see the ultimate differential at the foot ‑ ‑ ‑
GORDON J: Does that include billboards, that kind of digital, print and outdoor signage and corflutes?
MR GLEESON: The answer seems to be yes, your Honour. So, if one looks at the parties, between them, they are spending $450,000; the Unions, possibly the biggest TPC, in spending $18,000. There is no drowning out, even ‑ ‑ ‑
STEWARD J: Is there, in the materials anywhere, a comparison of total TPC expenditure in these by‑elections?
MR GLEESON: Yes, your Honour. That is revealed by comparing paragraph 91 to 92.
STEWARD J: Thank you.
MR GLEESON: Adding them up, the TPC is coming around the $60,000 to $70,000 mark, and the parties come in around the $600,00 or $700,000 mark. So, it is about a 10 times differential. Now, just a couple of the underlying documents which will show what is behind all this. And your Honours for this will just need volume 2 as compared with volume 12 of the special case book.
STEWARD J: Just before you go on, the table at paragraph 91, is that exhaustive of all TPCs?
MR GLEESON: The answer is yes, your Honour. So, in that by‑election, apart from a healthy interest from various unions, the New South Wales Minerals Council, perhaps unsurprisingly, were also spending – and they were capped at $14,000. One can well imagine that an area like the Upper Hunter, that the New South Wales Minerals Council could have a legitimate interest in attempting to influence the outcome, and could have a legitimate interest in wanting to run a radio campaign or a TV campaign, and they cannot do it. So, obviously enough, the case is not just about Unions being shut down; it is any TPCs.
In volume 2, the document is at page 428 to 429. It is the disclosure of Unions for this by‑election in the Upper Hunter. I go to it only if the Court needed any further detail on how the Unions ended up spending their fairly modest amount of money and what that has cost. It is in this document. So, to be merely getting a digital ad through Facebook for three days, that is going to cost you $13,075. So, if you wanted to have merely ads on Facebook for the entirety of an election campaign, you would almost have used up your whole cap and would leave you with nothing else for anything you might have.
On page 435, you can see, in terms of having to account for staff time, these are exceptionally modest amounts because, as I have shown, you cannot afford to have more than one full‑time staff member on the campaign even though you are trying to reach hundreds of square kilometres. Now, if your Honours compare that to volume 12, to Mr Layzell, his equivalent document commences at page 3363, and we see what he gets for his 240‑odd thousand dollars.
KIEFEL CJ: I am sorry, which page was that?
MR GLEESON: Page 3363. You will see on the first page, in terms of the signage, the sort of matter your Honour Justice Steward raised with me, this party candidate is perhaps spending at least half of a TPC’s cap on his own signage. Then, at the foot of the page, it starts off some digital advertising with some money unfortunately going to Ireland, but you see over the page the digital campaign of this candidate as well as – well, really it is a digital campaign on that next page. That would exhaust a fair amount of a TPC’s cap. Then, on page 3365, the big items come in at about point 3. The radio buy is $25,000, further buy is $2,000, and production. Then you have the newspaper ad buys, some office signage, and then, at about point 8, the TV ad buy is $41,000, production is $16,000, further production, $8,000.
So, from that page it is easy to conclude you cannot even make a TV ad, let alone pay to show it, faced with the TPC’s cap, and pretty much the same for a radio ad. There is another round of TV production over the page. So, the production totalled $32,000. Page 3367, the printing – the graphic design and the printing of this person would have used up more than a TPC’s cap. And so on.
One can see – coming back to your Honour Justice Gordon’s question – if the JSCEM was to report on this topic of the amount reasonably necessary to be heard, you would have to address some questions of importance such as: does that allow you the chance for a TV or a radio ad? You would have to address this real‑world behaviour, which shows you do not get much for $20,000, and you would have address – if you are concerned about drowning out, it is all the other way.
Your Honours, that almost completes our proposition 9. I have mentioned in 9(d) the scale of government issue advertising. It is a further plank in the argument. What paragraphs 93 to 94 of the special case show is that the government – properly, not improperly – spends in the tens of millions of dollars each year bringing to the attention of the community the good things the government has done. In the figures that we have, the amounts per annum range between $50,000 to $85000.
GLEESON J: Is that not million?
MR GLEESON: Sorry?
GLEESON J: You say thousand – $54,000?
MR GLEESON: No, no. It is $54 million.
GLEESON J: Correct. Yes.
MR GLEESON: Sorry, my fault, your Honour. Our point is, although there are limits around government advertising, it cannot be done for party political purposes, and it has to stop just a fraction before the election. What this advertising does do is allow the party in government to be continually communicating its messages ‑ ‑ ‑
KIEFEL CJ: Is this relevant to expenditure under the Act?
MR GLEESON: Its relevance, your Honour, is just – I can win without this point. I can without it. But what it just does is, in terms of the real world, if there were any risk of these TPCs drowning out the parties – which there is not, there is no risk on these numbers – you would take into account that at least the party in government has this war chest available to it, which is used and, of course, also has the media, which is used every day of the week.
GAGELER J: Well, Mr Gleeson, we would have to look at the Government Advertising Act and how it is administered.
MR GLEESON: Well, I do not want to burden your Honour, I have said it is ‑ ‑ ‑
KIEFEL CJ: It is not your strongest point.
MR GLEESON: It is a supplement, your Honour. Perhaps if I could take that corflute down, your Honour, and come back to my other corflutes. So, your Honours, all that leaves me with is – which is really not a difficult matter – is our paragraphs 4 and 5, which is, is there any legal issue left in the light of the facts, which are stubborn and powerful and persuasive, upon which this case could turn and upon which your Honours need to pronounce. The answer, probably, is no.
In paragraph 4, we have summarised that in Unions (No 1), as your Honour the Chief Justice put to me, it was a case where a selective prohibition on donations and a selective aggregation clause were exposed as having no justifying purpose other than to burden political communication with no rational connection to the scheme’s legitimate purposes and Justice Keane expressed the proposition in terms that the provisions disfavoured some communications sources in favour of others. Now, that problem from Unions (No 1) is what we submit that we have proved today, and every argument that Unions put in (No 1) referable to the impugned provisions in that case apply to the impugning provision today.
As to Unions (No 2), if your Honours could go to that, please, which is in volume 6. Your Honours, can I come back to Justice Steward’s question: is there any evidence about it? There is some evidence which is in volume 6 of the special case book at page 1005. The Union that I had tried to avoid accusing of breaching the criminal law, because it spent over the $20,000, its return shows that it spent $18,338 on television ads and billboard, and it then spent $27,000 in total. So, evidence of at least one Union wishing to exploit television if they could and, in fact, getting their budgeting wrong, and buying their cap on the television. The same is explained ‑ ‑ ‑
KIEFEL CJ: Where do we find that, Mr Gleeson?
MR GLEESON: That is in volume 6, at page 1005 – that is the return. Then, the explanation for this is in volume 7, at page 1558 to 1560, where the relevant officer says at 1588, they:
didn’t know about the cap –
and at 1560, they were planning to spend $22,000 on a mix of digital and TV and an extra $7,000 for a billboard. So, leaving aside whether they breached the law, it shows, for the cap of $20,000 you could not get a TV ad plus a billboard – let alone anything else.
Your Honours, returning to Unions (No 2), our general submission is that such differences as existed between three of your Honours on purpose do not matter for the present case because of the facts I have been through. In the judgment of Chief Justice Kiefel, Justices Bell and Keane, paragraph 26 makes the point – which a number of the judgments make – that, simply, no material had been put before the Court to carry out the necessary analysis to justify the decrease in the cap. At 29, an argument was made by New South Wales, which was supported to some extent by the Commonwealth at 30, that there were differences between parties and TPCs which could explain the differentials in the cap.
KIEFEL CJ: The same argument is put here, is it not?
MR GLEESON: It is sort of the same argument, your Honour. That is what I am getting to – that, to the extent that argument is put by the State, it has been done – and 38 is where the judgment was prepared to assume purpose without deciding. Then, 39, we read to be a variation of what the State is putting today, if not the same argument, that they do have some form of preferential position as parties. The judgment rejected that proposition, at least in its hardline form at paragraph 40. We would make the submission that paragraph 40 is correct – you do not have a:
privileged position . . . simply by reason of the fact that he or she seeks to be elected.
The extract from Justices Deane and Toohey in ACTV in that paragraph makes the point reasonably clear. So, the judgment goes on to reject the law at the stage of justification and, in particular, at paragraph 53, we would read that finding – having correctly placed the onus on the State – as meaning that the State had:
not justified the burden on the implied freedom of halving the cap in s 29(10) as necessary to prevent the drowning out of voices other than those of a third‑party campaigners.
Just before that, the judgment stated:
no enquiry –
was made:
as to what in fact is necessary to enable third‑party campaigners reasonably to communicate their messages –
So, there are two overlapping themes in the various judgments in this case. One is a ground‑up theme, a lack of material to justify a cap of $500,000. The second is an amending theme, lack of material to justify halving the cap. They both coalesce as being a failure to justify the law in that paragraph 53.
Now, in your Honour Justice Gageler’s judgment, New South Wales submits that your Honour has laid down as a doctrinal proposition that there is a functional distinction between parties who vie for government and TPCs, which can and does justify substantial differentials in the cap, and therefore purpose is ordinarily okay, and the case comes down to justification.
New South Wales says, this Court should now adopt that as a doctrinal rule so that, in effect, all these cases get disposed of at justification. We oppose that submission as in part not fully grappling with what your Honour said, because – it is the last sentence of paragraph 80 where your Honour recognised, pressingly for this case, I would say respectfully, that:
the cap on the electoral expenditure of a third‑party campaigner imposed by s 29(10) of the EF Act cannot be said to have been set at an amount that is obviously so low in absolute or relative terms that the cap is incapable of being explained as a legislative attempt to promote the –
objects in section 3. Now, our case fails the carve‑out which your Honour recognised in paragraph 80. The case fails at a level of purpose. To go to paragraph 83, where your Honour commended the submissions for the Attorney‑General of the Commonwealth as “crisply” putting the point:
it is permissible . . . “to restrict certain voices – those that may otherwise dominate the debate – to make room for all to be heard and thereby ensure that electoral choice is as fully informed as possible”.
Now, if that be accepted as a permissible purpose, one cannot identify section 29(11) as pursuing that purpose in the absence of any evidence of likely drowning out by TPCs and the absence of any evidence that $20,000 is sufficient for them to even make a squeak.
Now, what your Honour said at 83 could be compared with what your Honour Justice Edelman said at 178 as to what would be a legitimate purpose, and it would seem, to us at least, that there is not a significant difference at a level of principle between paragraph 83 and paragraph 178, it is just that this law does not pursue that purpose.
EDELMAN J: I think I started my reasons at some earlier stage by saying it is possible to have a differential, potentially, even a substantial differential, between third‑party campaigners and candidates, or political parties, but that would have to be justified.
MR GLEESON: It would have to be justified, and to the extent there is a difference between the two judgments, we do not see that there is some grey doctrinal debate which requires the Court to lay down some hardline principle in this case. There is a slight difference in the sense of the potential willingness to look at whether the particular provision does pursue the stated objects of the Act. There may be a slight difference in the degree of scrutiny with which one examines the provision. But, as to what one is examining it for, there is not a difference. So, one ultimately says, whether it is purpose or whether it is justification, this provision just fails.
Justice Nettle, who the State puts up as doctrinally supporting your Honour Justice Gageler, all he said on a question of purpose is at paragraph 109, and he gave considerable weight to the statement in the expert panel report. Well, other judgments clearly did not give as much weight to that report as Justice Nettle, but there is no doctrinal distinction being developed there. And your Honour Justice Gordon’s judgment, what is said at paragraph 118, that it was just “impossible to say” on the material:
whether or not the differential remains within the bounds of what might reasonably be required –
GORDON J: I think, there, that that is actually Justice Nettle.
MR GLEESON: I am sorry, your Honour.
GORDON J: At 118.
MR GLEESON: Yes, I am sorry, thank you for that. So that is the conclusion of Justice Nettle, and we have no difficulty with that conclusion, and then your Honour Justice Gordon, after fairly firmly stressing, between 146 and 149, the need to scrutinise carefully the claim by the government following ACTV, and “not to accept at face value” generalised assertions that without this cap there will be disaster to the electoral process. That is what the Court’s role is, and at 150, in assuming purpose, New South Wales failed on its burden, and it is all laid out at 152, 153 and 154.
Now, as I think I may have recognised earlier, there is a slight difference in theme in some of the judgments. Your Honour’s judgment at 153 is focussing squarely but not exclusively on the reduction – how is that justified. Your Honour Justice Gageler’s judgment was focussing squarely but not exclusively upon a ground‑up analysis – how do you justify 500 is enough? But it all comes together in the same conclusions. Then finally, in Justice Edelman’s judgment, your Honour found this to be a law which failed at the stage of purpose because it was not merely a problem with its effects, one could not find any purpose consistent with the Constitution that it was pursuing – and that is our case.
Your Honours, finally, there is a submission by the State that we are in the territory of appreciation and the Parliament has got to be given a fair amount of work to decide what is an appropriate cap – and they have done enough to justify it. We would urge the Court that, in the light of the very clear statements in Unions (No 1) and Unions (No 2), it remains the role of this Court to scrutinise the justification, and this law fails.
Unless your Honours have questions, there are our submissions.
KIEFEL CJ: Thank you. Yes, Mr Walker.
MR WALKER: May it please your Honours. In our submission, it is significant to distinguish conceptually between the properly identified purpose of the impugned provision and the conceptually subsequent step of justifying the terms of those provisions both as to necessity in serving that purpose but also in the appropriateness and adequacy of balance concerning the burden which is conceded.
In this case, in our submission, as a general proposition, the purpose of any electoral expenditure law in placing limits on what may be spent in the course of campaigning – which will either completely or largely be characterised a freedom of political communication – provisions which impose restraints in and of themselves are not to be regarded as, because they constitute restraints, incapable of being justified.
This case does not involve revisiting a general question concerning the constitutionality of imposing any restraint at all, that ship has sailed. We submit as a subset, a mere item in the list of legitimately relevant matters to be addressed in such legislation, the differential imposition of burden on communication by restraint on expenditure on campaigning, which would largely involve communication, is equally not to be seen as, per se, or beyond the possibility, per se invalid or beyond the possibility of justification.
That does involve addressing what Justice Edelman has raised with our friends, and that which appears, with respect, in Justice Edelman’s reasons in Unions (No 2) confronting the question of whether there is the possibility of the State, in our position, attributing a purpose to these provisions in terms differently from one way of describing their effect. Because their effect is plainly to impose differential restriction on the expenditure by third-party campaigners, compared with parties and candidates. That is, unquestionably, the effect.
But, in our submission, it is not the case when one looks at the Act as a whole, including the travaux preparatoires to which reference has been made, particularly in writing, it is not the case that that becomes the purpose which is then the sounding board for questions of both legitimacy and then, thereafter, necessity, adequacy of balance and justification. Rather, in our submission, in this case there is raised a matter which, perhaps, was not categorically answered in Unions (No 2), namely whether the functional distinction, which is inherent in the names, between on the one hand, candidates and parties and on the other hand third‑party campaigners, is a distinction which can lead to the imposition of a burden, because there is a legitimate purpose, which has to do – to use the figure of speech – with levelling a playing field.
Like most figures of speech, they are apt to mislead fairly soon after one utters them, but the notion that we call in aid is a perception, plain in the travaux preparatoires, that a multiplicity of third-party campaigners, without characteristically – that is, typically ‑ having the ambition of seeking to become the ministerial party in the Lower House, without thereby having what is usually entailed in successfully achieving that outcome, namely addressing the panoply of issues and concerns that it might be thought electors, at least, in critical places might be swayed by. And therefore, again, only typically – not universally – therefore, typically, raising the question of so‑called single issues. Now, that is not intended to be a derogatory description. We are not arguing that there is something less worthy about a person whose intervention in politics is a focussed one; that is, only one so‑called issue.
In our submission, the legitimacy of the intent of expenditure on campaigning communication be differentially restricted as between the candidates and parties on the one hand, and third-party campaigners on the other hand ought not to be doubted by this Court. I will need to come back in a bit more detail to the different way in which the judgements in Unions (No 2) may or may not provide a support for that as a matter of authority.
EDELMAN J: Does that purpose then come down to the point that it is the legitimate purpose of the law to ensure or enhance political communication by candidates on particular single issues that third‑party campaigners, particularly as a group, might be able to put forward such a strong message and loud message that the candidate would be unable to sufficiently communicate their message?
MR WALKER: I certainly do not say – could not say, in particular, given the travaux – that that is, as it were, the heart of the exercise, but what your Honour describes is an illustration of what it may mean for third‑party campaigners to be drowning out candidates and parties.
I need to explain that a bit. My learned friend’s persuasiveness included mocking the notion, by reference to the figures, that third‑party campaigners were anywhere near to drowning out candidates and parties. But the figures – and, indeed, the other material to which the Court has been taken – does not supply a description of the state of affairs – the mischief, if you will – to which, we submit, such legislation on such a legitimate purpose might be directed.
In our submission, third‑party campaigners who typically may not be campaigning across the board of all issues – in particular, in relation to the formation of a government – those are persons whose multiple voices have the clear potential to not merely approach, equalise, but obviously surpass the voice addressed to those matters that the third‑party campaigners have raised – whether singular or otherwise – on the part of parties and candidates.
It is for those reasons that the Court should not start, as it were, with the proposition that the mere differential amount with third‑party campaigners severally having less than candidates and parties raises, as my friend says, the requirement for scrutiny but, as my friend again powerfully addresses, in such a way as to hear crickets when you ask for explanation. That is not, in our submission, the proper way to set about the task.
First, in our submission, is asking whether on the travaux – and from an appreciation of electoral arrangements – I do mean legal rather than social or political – that third‑party campaigners obviously do present a potential for what might be called a lopsided outcome if there was a facially identical expenditure cap for them as for third‑party campaigners. Or, to put it another way, there has not been an attempt to show that there is not a reasonable basis for the proposition that the functional difference between candidates and parties on the one hand and third‑party campaigners on the other hand does not provide an occasion for the legislature to address its judgment to the question what, if anything, ought to be done about that.
Now, all of that supposes that, as I started by saying, restraints on expenditure are not, in themselves, a per se and unjustifiable burden, and that is clear, that is accepted.
The next step in our submission is, as I say, to deal with the matter of authority, but if your Honours will permit me I am going to defer that in the order of my address. What I want to say by way of summary in advance concerning it is that the matter is open, we submit, on the authorities – principally, Unions (No 2) – for this Court to hold that it is a legitimate purpose to be seen in these impugned provisions to differentially impose caps because of the different position of candidates and parties on the one hand and third‑party campaigners on the other.
I entirely accept, however – and need to confront as soon as I can – that it is all about then the figures, because we do accept, as my friend has pointed out, that for reasons that Justice Gageler has noted in Unions (No 2), it is straightforward and proper to imagine a case where, on the face of figures, so‑called evidence to justify – such as the travaux in question in this case – would be beside the point ‑ my word, bordering on the fatuous ‑ but the $10 limit – my example – is obviously a derisory attempt to recognise the legitimate purpose and how it might appropriately be served in such a statute.
We need to persuade your Honours – the onus being on us, we accept, as to justification – that the amounts here – for convenience, I will call it the $20,000, but your Honours know the history includes an indexed increase of that before it reverted and then indexation took over again – but the $20,000 per third‑party campaigner is not in the category that Justice Gageler, with great respect, correctly noted need to be understood as what I might call a basement‑level determination of such cases.
EDELMAN J: Do you accept that it is not enough for a purpose merely to point to the fact that a third‑party campaigner is not a candidate for a party?
MR WALKER: Yes.
EDELMAN J: The purpose must go beyond that and deal with something like drowning out or some other factor?
MR WALKER: Unquestionably that is – this is no, as it were, systemic punishment of people wanting to be heard in politics but not wanting to spend their life as a candidate or belong to a party. I hope I have not put that too tartly, but that would be absurd, for reasons, in a slightly different connection, my friend has already put and with which we do not wish to disagree. The communication is not, as an activity, a privilege of candidates and parties. That would be utterly antithetical to the nature of the implied freedom and the reason for which it exists.
Therefore, I do accept that, as to the legitimacy of a purpose if we have identified it correctly – in this case it is to avoid drowning out – there needs to be something in nature of an old‑fashioned mischief identified. We submit that we have done that easily sufficiently in the travaux, to which we have drawn attention. The possibility of a multiplicity of voices not engaged with trying to win government in itself is something that experts and committees have regarded, for reasons which are not self‑evidently untenable, to be an appropriate legislative project.
EDELMAN J: It has to be a multiplicity of voices that are not acting in concert, as well.
MR WALKER: Of course, not before this Court anymore is the related and terribly important question of acting in concert. But for the provisions which I am now seeking to defend, it needs to be – as Justice Edelman has asked me and I accept – the possibility of acting in concert is a matter which unquestionably will fall legitimately to be considered in devising any such statute, but this is not a case where a failure to include possible but not enacted acting in concert provisions is said to be an invalidating feature. There is an anti‑avoidance provision, in any event, and we, in our submission, are not imperilled as to validity by the effect of those provisions, be it salutary or otherwise.
GLEESON J: Is acting in concert part of the purpose because of the level of the cap?
MR WALKER: No, there does not need to be acting in purpose for there to be a multiplicity of voices; or, to put it another way, one can be drowned out by discord as well as by concord. So, it does not have to be ‑ ‑ ‑
GLEESON J: Well, perhaps I ‑ ‑ ‑
MR WALKER: The mischief is not simply they are all ganging up on me in one direction.
GLEESON J: But there has to be a multiplicity of voices because of the low level of the cap.
MR WALKER: Without any question, your Honour.
GLEESON J: I see.
MR WALKER: I cannot get anywhere on the basis that the figures in question in this case are figures that we can justify by supposing that each candidates faces only one very modestly funded third‑party campaigner, and no one has ever attempted in the travaux.
GORDON J: When you say multiplicity, do you mean directed at the one issue? I ask that for this question. If you go to the Upper Hunter, for example, which ‑ ‑ ‑
MR WALKER: The answer is no, I do not. It will very often be so because of ‑ ‑ ‑
GORDON J: Does that weaken your argument that there needs to be a multiplicity of voices?
MR WALKER: I think it might, as a matter of logic.
GORDON J: Yes.
MR WALKER: If this part of the world was so neat that I could say that our third‑party campaigners were without any nefarious collusion, nonetheless all imbued by one obviously burning issue – but it is not that neat, and more to the point, the law does not require any – these impugned provisions do not require any such unity of voice.
GLEESON J: So, what you are saying is we do not want too much talking during a by‑election because that might drown out voices of the candidates?
MR WALKER: I think so. The law does not look to what I might call the substance, let alone – God forbid – the political direction of the campaigning by the assembly of third‑party campaigners. The law is drawn without knowing how many they will be and what they are interested in, and I should say, without knowing how they will draw their dream budget as to modes of propagandising. I will have to come back to that question of the expensiveness of broadcasting, obviously.
GORDON J: When you say the law has been drawn without knowing how many, without knowing the expenditure, and what they are likely to spend on, is that not because the report has not addressed those issues that we have looked at in terms of the travaux preparatoires?
MR WALKER: I do not want to be misunderstood. I am not saying that there was not an informed appreciation of the phenomenon – there was; the travaux referred to it. What we do not have anywhere is a sociological mapping of them – these are people for more coal mining, these are people for no coal mining, et cetera, et cetera; and that they are both single issues; and there are 17 of those and 25 of the others. But for restrictions, they will drown out – again, as a figure of speech – presumably it has to do with the volume and vehemence of messaging.
It may or may not crudely be measured by reference to money but, in our submission, that is not the only way you can measure it. Expenditure caps are an appropriately crude proxy for controls on the intensity or the extensiveness of the reach of communication, but that is not an issue in this case. The selection of money – that is, expenditure – as a measure of a restraint on communication to avoid the so‑called drowning‑out is not, as we understand it, any part of the argument against us.
Conscious as I am of the onus we beared in justification, nonetheless, it is legitimate to point out that none of the copious materials before you – including the consideration of submissions not accepted in the Committee and expert panel and related travaux, none of it suggests some other way than restraints on expenditure as being an appropriate way for the law to address the problem of being drowned out.
EDELMAN J: Mr Walker, I think in Unions (No 2), I accepted the legitimacy of a drowning‑out purpose.
MR WALKER: Yes.
EDELMAN J: I am just not sure now that I know what it means. In one sense, very loud and vehement voices, even on a particular single issue, might enhance the message of the candidate or the party – albeit in a negative way – but they might make it very, very clear to the public exactly what that candidate or party’s message is. That cannot be a form of drowning‑out that is illegitimate – sorry, that supports a law that could restrain that type of political speech, could it?
MR WALKER: I would find it hard to persuade your Honours that drowning‑out is the way you would describe a phenomenon of an outstandingly persuasive intervention in a political campaign by somebody with a real story to tell and who does it in an engaging fashion. So, no, something which monopolises talk but because of its content and style – it may have cost next to nothing – does not seem to be within any understanding from the travaux of what the mischief was that has been called drowning‑out. But, plainly enough, because of its expenditure, it is something other than that which, perhaps, money cannot buy – which is the close to unique attractiveness of such an intervention in a debate.
Because it is something that money can buy, and because this Court can take judicial notice of the fact that advertising is not provided gratuitously by television channels, radios or advertising agencies, we accept, with the dangers that it has for our argument, our learned friend’s understandable repeated references to television and radio budgets as something which ought to be held against us as something that we needed to have in mind when legislating, as we did, for the $20,000. Can I come back to that? I accept that as a legitimate challenge to throw to our attempt to discharge the onus.
My point, rather, is that if one accepts, as we submit, authority and principle would suggest one ought to accept that any difference in expenditure caps between those called candidates and parties on the one hand and those called third‑party campaigners on the other hand, if one accepts that it is not the mere existence of a difference that either leads to a characterisation of the purpose as illegitimate – that is my first point – nor does it prevent justification – what I will call Justice Gageler’s reminder of the effect of extreme cases in Unions (No 2) – then, in our submission, at least in this case, we get to the position of trying to point to the justification we have to make for what I call the $20,000.
As your Honours know – and this is, in particular, in the propositions we advance in 2(c) of our outline. We start by saying that when one goes to the history, one does not find, with respect, that the $20,000 is an amount which ought to be regarded as less than is reasonably to be required by each of the possibly numerous third‑party campaigners in order for it to be a figure justified as an attempt to prevent drowning‑out. My learned friend took you, in effect, to a slice of that history, which you will find in the further amended special case in the book, starting at 4264, picking up paragraph 42 of the special case. My friend had been there already. I want to remind you that this is a campaign to be conducted by more than one third‑party campaigner, and that in 42(e), the estimated costs, as my friend notes, excluding radio advertising, was $35,800.
Could I remind you of the further iteration of that in paragraph 42A and then in paragraph 43, without going to the details, but noting the decrements recorded in paragraph 44. In paragraph 45 you will see that the total for Unions NSW and its five affiliates which registered as third‑party campaigners was $63,000, that being obviously a larger figure than those to which I have earlier drawn attention. Then, in paragraph 51, for the several third‑party campaigners in that table, one again gets that figure, or gets a figure, $63,394.80, which of course is again in excess of the figures to which I first drew attention.
It is in that connection, with respect, that when one looks at those figures that make up that overall spend, you can see that they are, with respect, comfortably, apart from the first anomalous one explained by the ignorant official to which my learned friend drew attention, they are all comfortably within the cap. In our submission, bearing in mind some of the information we see later concerning expenditure in another by‑election, the Upper Hunter, with respect to radio it is not possible to say that, as my friend kept saying, that those are figures which preclude any recourse to broadcasting.
It no doubt renders choices acute. That brings us to one of the main propositions we would wish to put, that it would be putting the cart before the horse to point to constraints actually demonstrated in conduct by third‑party campaigners and treating that as proof that the amount in question cannot be justified, because at ‑ ‑ ‑
STEWARD J: Is that really saying that what Mr Gleeson has demonstrated is that they have not been allowed to spend as much as they would like ‑ ‑ -
MR WALKER: That is right.
STEWARD J: ‑ ‑ ‑ that is not an answer to the question as to whether it was reasonable.
MR WALKER: Exactly so. Or, to put it another way, one of the propositions we would seek to persuade your Honours of is that it cannot be a requirement of a justified expenditure cap that nobody feels its restraint. Now, I could exaggerate that by saying, not even the most extravagant, but leaving aside arguments from extremes, and perhaps looking to what a medium performer would show, it cannot surely be a test in this Court for constitutional law purposes that no expenditure restraint on political communication for a legitimate purpose can be justified in its terms if people feel its effect. It has to ‑ ‑ ‑
GORDON J: Sorry, I missed that last submission – if people feel that they are affected?
MR WALKER: Feel its effect.
GORDON J: Feel its effect, I see.
MR WALKER: That is, the effect of the restraint. More colloquially, it cannot be the law that a constraint is effective so long as it constrains either very few or no persons within its terms.
The next proposition, which is not so general and which has to do with the particular subject matter of these provisions – in light of the argument against us by the plaintiffs – is the inquiry to which the travaux speak, but only in very general terms, as to whether there is something that this Court would stipulate as a modicum of broadcast communication – by which I mean television and radio, understood to be relatively expensive services to obtain – in order for third‑party campaigners to be able to participate, sufficiently meaningfully, that the cap does not go too far – that is, cannot be justified in its effect on the burden – in its effect by way of burden.
Now, in our submission, that is also subject to the comment I made about the first matter of method, and we submit that it cannot be right that this Court could come up with what might be regarded as a bare minimum broadcast participation. It is not the case, for reasons I will show later, that these are amounts that positively prohibit broadcast. They require choices to be made, no doubt, but those choices may be between T‑shirts and corflutes, and this Court is surely not going to base a jurisprudence on a proportion of T‑shirts to the number of torsos that might be covered by them in an electorate, ditto corflutes and telegraph poles.
It is no doubt to the forefront of the advertising industry, who are concerned with the revenues of television and radio broadcasters, but, with respect, it does not lend itself to an assessment of justification by saying a certain amount of broadcasting must be permitted lest you fail to justify the limit you have imposed.
STEWARD J: Is it part of your case, perhaps indirectly, that the fact that we are not dealing with an actual by-election before us, and there may not be a by-election for some time that the Unions might want to participate in, that we are dealing with this at such a level of generality about hard, concrete facts, that we cannot test the propositions properly?
MR WALKER: Yes.
STEWARD J: But you nonetheless accept that there is standing and a matter and so on.
MR WALKER: Yes. If there is something not ripe, it is the position left within the systems for the informing of legislators, because of reports not received and the like. That does not weigh against our friends having a matter or having a standing or the utility of relief, I accept that.
However, it does rather highlight circumstantially that we are not arguing in the shadow of a constrained by‑election campaign and it does highlight the significance of empirical material which, in our submission, cannot simply be dealt with by saying, we do not have advertising rate cards in the travaux preparatoires, one needs to start with the more principled question, assuming you do not have to fund however many television ads a third-party campaigner wants – and we make that assumption as a matter of argument and urge it as a matter of principle on your Honours – assuming that, nonetheless is there a minimal amount that must be made available?
That, in our submission, is a missing premise as to its demonstration before we can be said to have failed in our onus to persuade you that $20,000 can be justified by the means that I would next come to, if that is a convenient time.
KIEFEL CJ: Yes, thank you, Mr Walker. The Court will adjourn until 9.30 am tomorrow for pronouncement of orders, and otherwise to 9.45 am.
AT 4.18 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 17 NOVEMBER 2022
Key Legal Topics
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Constitutional Law
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Administrative Law
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Statutory Interpretation
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Judicial Review
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Standing
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Procedural Fairness
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