Wotton v State of Queensland & Anor

[2011] HCATrans 189

[2011] HCATrans 189

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S314 of 2010

B e t w e e n -

LEX PATRICK WOTTON

Plaintiff

and

STATE OF QUEENSLAND

First Defendant

CENTRAL AND NORTHERN QUEENSLAND REGIONAL PAROLE BOARD

Second Defendant

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 2 AUGUST 2011, AT 10.16 AM

Copyright in the High Court of Australia

__________________

MR R. MERKEL, QC:   If the Court pleases, I appear with my learned friends, MR A.D. POUND and MS K.L. WALKER, for the plaintiff.  (instructed by Levitt Robinson Solicitors)

MR W. SOFRONOFF, QC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear with my learned friends, MR G.J.D. DEL VILLAR and MR A.D. SCOTT, for the first defendant.  (instructed by Crown Solicitor (Qld))

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth:   If the Court pleases, I appear with MR C.L. LENEHAN for the Attorney‑General of the Commonwealth intervening under section 78A of the Judiciary Act.  (instructed by Australian Government Solicitor)

MR M.G. SEXTON SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MS K.M. RICHARDSON, for the Attorney‑General of New South Wales who intervenes in the proceedings.  (instructed by Crown Solicitor (NSW))

MR S.G.E. McLEISH, SC, Solicitor‑General for the State of Victoria:   If the Court pleases, I appear with my learned friend, MR A.M. DINELLI, for the Attorney‑General for Victoria intervening.  (instructed by Victorian Government Solicitor)

FRENCH CJ:   Yes, Mr Merkel.

MR MERKEL: If the Court pleases, we have handed up the outline and an additional list of authorities and cases and some material we will be referring to and also a corrected outline of our original submissions which updates some of the annotations and corrects some minor errors. Can I go at the very outset to the statutory context in which the present matter arises and can I take your Honours, using volume 1 of the first defendant’s bundle of legislation, straight to section 132 which is at page 110.

FRENCH CJ:   I noticed in the explanatory notes for the Corrective Services Act 2006 it is said that this provisional provision is likely to have been in Queensland legislation for something like 80 years, but am I right in saying that its application to parolees was relatively recent or has that always been the case?

MR MERKEL:   Your Honour, I have not checked how far back it goes to parolees, so I cannot answer.  I will ‑ ‑ ‑

FRENCH CJ:   It is applied to parolees in the 2000 Act, but I am not quite clear on whether the 1988 Act did.

MR MERKEL:  We will endeavour to check that, your Honour. First of all the section finds its way in the Act in Part 3 under “General offences” and “a person” at section 125 does not include a prisoner, so prisoner offences are dealt with in an earlier part of the Act, which I will come to later. Then the section itself says:

(1)      A person must not––

(a)interview a prisoner, or obtain a written or recorded statement from a prisoner –

In the dictionary a prisoner is defined as including a person on parole.  That is in Schedule 4 –

whether the prisoner is inside or outside a corrective services facility –

A corrective services facility is itself defined in Schedule 4 and it covers a prison, a community correction centre or work camp and there are provisions, which I do not need to take your Honours to, in sections 149 and 151(1)(a)(i), by which regulations can declare certain places or parts of places to be corrective services facilities.  Subsection (1)(a) is extraordinarily wide and, as your Honours will appreciate, extends to parolees and extends:

inside or outside a corrective services facility -

Subsection (1)(b), oddly enough, only applies to:

photograph or attempt to photograph –

(i)        a prisoner inside a corrective services facility –

so it would not usually apply to a parolee on the basis that they are outside the facility.  Then the exception in subsection (2) relates to “the prisoner’s lawyer”, “an employee of a law enforcement agency”, and a law enforcement agency is defined in the dictionary – I should say quite narrowly compared to some other provisions which I will take your Honours to concerning privileged mail which has a far broader definition – but at page 366 the agency means “the Crime and Misconduct Commission”, “the Australian Federal Police”, “the Australian Crime Commission”, “a police force or service of another State”, and “another entity declared under a regulation to be a law enforcement agency”. 

My learned friend, the Solicitor from Queensland, may correct me but we have not been able to find any regulation that extends that definition so we will come back to the significance of that later.  Then otherwise there is an offence ‑ ‑ ‑

GUMMOW J:   What is the reference to the ombudsman?

MR MERKEL:   That is in 2(c), your Honour.

GUMMOW J:   I know.  Is it a defined expression?

MR MERKEL:   It does not seem to be, your Honour.  Before leaving that part of the Act, can I just draw your Honour’s attention to section 129 which prohibits removing things from a corrective service facility, and part of the reason I wanted to take your Honour to other sections in this part, and also in other parts of the Act, is that most of the mischief said to be addressed by 132(1)(a) are addressed very precisely elsewhere.  So taking a thing would include a written or recorded statement, for example.  Section 128 refers to taking a prohibited thing into a facility or giving a prohibited thing to a prisoner and “prohibited thing” is defined and would include a map.  Section 130 prohibits unlawful entry or assuming a false identity.  Then we come to 132(1)(a). 

We have also referred in our submissions to section 7 of the Criminal Code, which is set out in our original submissions at paragraph 24, and the effect of the, in effect, accessorial liability would be that a prisoner, whether on parole or not, who provides a written or recorded statement or participates in an interview will be committing the principal offence by reason of section 7 and Queensland does not seem to join issue with us on that. So the reach is extremely wide. Can I now go to how people come to be in a ‑ ‑ ‑

GUMMOW J:   Just before you do that, is there a definition of “chief executive”?

MR MERKEL:   Yes, your Honour.  That is at 263, I think it is.  Section 263(1), the chief executive – sorry, you asked me about a definition.  I do not think the chief executive is defined, but the chief executive is provided for in Part 2 and:

Subject to any direction of the Minister, the chief executive is responsible for –

(a)the security and management of all corrective services facilities; and

(b)the safe custody and welfare of all prisoners; and

(c)the supervision of offenders in the community.

I am told, your Honour, in response to your Honour Justice Gummow’s earlier question, “ombudsman” is defined in section 36 of the Acts Interpretation Act to mean the ombudsman under the Ombudsman Act 2001 (Qld).

GUMMOW J:   Section 36?

MR MERKEL:   Yes, section 36 of the Acts Interpretation Act.

GUMMOW J:   Thank you.

MR MERKEL:   I am told the chief executive is also defined in that Acts Interpretation Act, your Honour, in section 36 as well. Can I go next to sections 6 and 7 which indicates the reach of section 132, relevantly, in the present context. A person comes to be detained – and “detained” is defined in the dictionary as detained in custody. When:

A person sentenced to a period of imprisonment –

and this is the added provision –

or required by law to be detained for a period –

and the provision is they –

must be detained for the period in a corrective services facility.

Section 7 rounds that off so that detention becomes detention in the chief executive’s custody:

If a person sentenced to a period of imprisonment or required by law to be detained for a period is, while being taken to a corrective services facility for detention, under the control of a corrective services officer, the person is taken to be in the chief executive’s custody.

So as a consequence of that expanded definition, persons detained and therefore prisoners in the custody of the chief executive are not only those serving a period of imprisonment but those who are required by law to be detained.  So a person on remand would be required to be detained, but it goes much further than that.  So that, for example, immigration detention in Queensland where there is no immigration detention facility would require the person to be detained, imprisoned.  Just by way of example, immigration detention in section 5 of the Migration Act means:

being held by, or on behalf of, an officer:

. . . 

(ii)in a prison or remand centre of the Commonwealth, a State or a Territory –

So, for example, when the cases of Cornelia Rau and Mohamed Haneef came up, there was no immigration detention facility in Queensland.  They would have been in a corrective services facility and in the custody of the chief executive and would equally be bound by 132(1)(a) while in prison.  So the extension required by law has quite a far reaching application.

GUMMOW J:   You read that as including law of the Commonwealth, do you?

MR MERKEL:   Any law, your Honour, we would say, yes.  That would tie in, your Honour, with the definition of “immigration detention” which would provide for detention in a prison of the State. 

CRENNAN J:   What about subsection (4)?  What is an example of the situation to which that would have application?

MR MERKEL:   Subsection (4) of?

CRENNAN J: Section 7.

MR MERKEL:   I think that would be, your Honour, where a person might, for example, be taken to a court under police supervision.  They might then be in the custody of the police officer and therefore for that temporary period ‑ ‑ ‑

CRENNAN J:   Outside the corrective ‑ yes.

MR MERKEL:   I think there is an example at the top of page 28, your Honour:

while the person is in the custody of a police or prison officer as mentioned in the Mutual Assistance in Criminal Matters Act 1987 (Cwlth) –

and then they have given examples of where persons are outside a corrective services facility and one of them is when a person is released on parole or transferred between corrective services facilities or the person is on health leave. 

GUMMOW J: Now, Mr Merkel, you present a question as to whether section 132 is invalid. Your interest in the matter was that of your client as a parolee. Why does it go any wider than that?

MR MERKEL:   Your Honour, it may not.  Our interest in the section is in its operation, generally, subject to severance, and we have put in our reply submissions provisions in the Acts Interpretation Act that would provide for severance but the criticism we ‑ ‑ ‑

GUMMOW J:   This is point 12 in your hand up, I think?

MR MERKEL:   Yes, your Honour.  To understand the reach and potential operation we take your Honours through the other provisions of the Act which deal with the so‑called legitimate ends that have been put forward by our learned friend, the Solicitor from Queensland, but in the end we would accept entirely that our interest in the case is as a parolee and the operation of this section to a parolee which as we will explain to your Honours is unprecedented. We cannot find any example of any provision, regulation or statute anywhere that would have this kind of restriction on a parolee but we will come to that in due course.

The parole ‑ I am taking your Honours to the provisions in 263(1) and (2)(a) concerning the chief executive.  The parole provisions are found in Chapter 5, Divisions 4 and 5 and starting at section 187 the process starts with an application – that is at page 148 - and there are regional boards and the regional board heard Mr Wotton’s application.  Section 188 provides for a submission which occurred in the present case and 200(1) at page 155 sets out the mandatory conditions and those provide for the parolee:

to be under the chief executive’s supervision –

(i)     until the end of the prisoner’s period –

…

(b)      to carry out the chief executive’s lawful instructions –

I should say these provisions which I will take your Honours to, together with the other conditions of the parole, we will be saying to your Honours provide ample authority and supervision powers to make entirely unnecessary the restrictions imposed by conditions (t), (u) and (v), which we will come to in due course, and:

(f)       not to commit an offence.

FRENCH CJ:   Does that mean you will accept that the condition requiring a parolee “to carry out the chief executive’s lawful instructions” could validly extend to instructions which selectively directed the parolee not to participate in media interviews, for example?

MR MERKEL:   Yes, with a very significant qualification.  For example, your Honour, can I just take the public meeting example which Queensland rely on or the interview?  It can be the same thing.  If, for example, there were another death in custody in Palm Island so we had the possible replication of some of the circumstances that led to the commission of the offence one might in that context accept as a lawful instruction that Mr Wotton not go to a public meeting of the kind that occurred previously or some other tailored instruction to the exigencies of those circumstances as and when they arise.

But it would not be a lawful instruction if it were merely a replication of 132(1)(a).  It would have to be tailored to some relevant circumstance.  There is nothing about our case that tries to impede any of the objectives set out in subsection (2).  But to be a lawful instruction it would have to comply with the constitutional requirements of not disproportionately burdening the freedom of communication involved.

FRENCH CJ:   What is the difference in principle between a condition which extends to that possibility and condition (t)?

MR MERKEL:   Because, your Honour, condition (t) is a blanket ban on attendance at all public meetings, which I will take your Honours to ‑ ‑ ‑

FRENCH CJ:   Subject to prior approval.

MR MERKEL:   Subject to prior approval.  But I will take your Honour to the Parole Board’s definition of a “public meeting” which is essentially a meeting about political and government matters which is simply not tailored to any mischief or potential problem identified anywhere in the evidence in relation to Mr Wotton.

CRENNAN J:   It was accepted, I think, in the section 188 submission, and this can be found at 126 of the special case book, paragraph 28.

MR MERKEL:   Sorry, your Honour, page?

CRENNAN J:   Page 126, paragraph 28, that Mr Wotton himself had identified as a following strategy in relation to recidivism:

Avoid any public gatherings on Palm Island relating to deaths in custody –

So it would appear that condition 7 was in part a response to what was put in the section 188 submission made to the Parole Board.

MR MERKEL:   About the public meeting, your Honour?

CRENNAN J:   Yes.

MR MERKEL:   Well, I will have to take your Honour in due course to the definition, but the definition given by the Parole Board shows an intent not really to deal with the issue that is raised in 28.a. but is far broader and covers any political government meeting.  Indeed, what happened is Mr Wotton has been deeply involved in drug and alcohol issues on the island.  The Queensland Ministry of Justice and Attorney‑General were to chair a public meeting.  Mr Wotton sought permission to go to it and was refused permission to go to the public meeting.  That, if you want, is the real world in which this kind of condition is operating.  It is not tailored to address any kind of risk presented by Mr Wotton, and I should say ‑ ‑ ‑

CRENNAN J:   Was there any application for judicial review of that decision?

MR MERKEL:   I doubt that judicial review is available of that decision, your Honour, because the definition of an “enactment” under the Judicial Review Act is “an Act or statutory instrument”.  We have handed up some additional documents, but a parole order would not be a statutory instrument so the Judicial Review Act would not apply. 

CRENNAN J:   I am talking about the rejection of the request for approval in relation to a specific meeting, Mr Merkel.

MR MERKEL:   No, I understand that, your Honour.  The answer is no, there was not an application for judicial review but the reality or practicability of that really puts it in the extreme situation.  It is not judicially reviewable as we would understand it under the Judicial Review Act.  You could not require reasons.  It would have to be then some jurisdictional error or improper purpose and given the breadth ‑ ‑ ‑

CRENNAN J:   Well, taking it step by step, it is an administrative decision.

MR MERKEL:   Yes.

CRENNAN J:   Why do you say you could not require reasons?

MR MERKEL:   Because the Judicial Review Act would not apply to it because the parole order is not an enactment or a statutory instrument which is the coverage of the Judicial Review Act.  He would not have a right to get reasons.  He would have to challenge by judicial review on some broad ground of improper purpose and to seriously raise the prospect of succeeding ‑ ‑ ‑

KIEFEL J:   But the parole order would be made under an enactment.  It is not an enactment itself.  It would be made under an enactment, would it not?

MR MERKEL:   The parole order is made under an enactment, but the definition of an “enactment” – an administrative decision under an enactment is defined – an “enactment” is defined as “an Act or statutory instrument”.

KIEFEL J:   Yes, which the Corrective Services Act would be.

MR MERKEL:   Yes, but the parole approval is made under a parole order which is neither an enactment or a statutory instrument.  If one looked at all the learning on the AD(JR) Act and similar legislation, one may find – and we have not really had the opportunity to do this – that there may be a possibility of saying ‑ ‑ ‑

KIEFEL J:   I think you say that to all intents and purposes these are not judicially reviewable matters.  No doubt you are going to amplify that argument in response to Justice Crennan’s question.

MR MERKEL:   Yes.

GUMMOW J:  This turns on section 4 of the Judicial Review Act 1991 (Qld) does it not, which we looked at in Griffith University v Tang 221 CLR 99:

a “decision of an administrative character made . . . under an enactment (whether or not in the exercise of a discretion)”.

MR MERKEL:   And the definition of an “enactment” is “an Act or statutory instrument” which a parole order is not.  But the real answer, your Honour ‑ ‑ ‑

FRENCH CJ:   The enactment is the source of the power to impose the condition and the condition which includes the power to withhold or grant approval traces its legal efficacy to the Act.

MR MERKEL:   It does, your Honour.  We will have a closer look at Tang, but our answer to your Honours – and we will deal with this in more detail later in our submissions – is the fallback of allowing a burden of the kind in issue in the present case to be subject to an unconfined discretion, as that is explained in the cases, is not appropriately adapted to the ‑ ‑ ‑

HAYNE J:   A premise of that is this notion of unconfined discretion and that is a proposition that you will need to expand.

MR MERKEL:   I will come to that, your Honour, when we deal ‑ ‑ ‑

FRENCH CJ:   I did not think there was any such animal actually.

MR MERKEL:   Well, we used the words from Chief Justice Mason in Peko‑Wallsend ‑ ‑ ‑

FRENCH CJ:   Every discretion is confined if only by the scope, purposes and subject matter of the statute under which it is made.

MR MERKEL:   I think that is the context.  That is the context in which his Honour used the expression and we do not wish to suggest that it is unconfined in the sense of unreviewable.  That is well established not to be so, an improper purpose or something inconsistent with the objects and purposes of the Act, but we say the objects and purposes of this Act are so wide and the parole provisions – that to say a burden – and we will come to our case on this shortly – but to say a burden can be relieved by discretion of this nature, if I take out the adjective, is not appropriately adapted to the ‑ ‑ ‑

HAYNE J:   It would be reviewable for failure to take account of a relevant consideration.  It would be reviewable for failure to comply with constitutional limits.  Is that not right?

MR MERKEL:   It is right, your Honour, but one would have to find what was the mandatory consideration that was a relevant consideration.  That is no small task.  The constitutional limit, your Honour, would require Mr Wotton to put before initially the corrective services officer who makes the decision and then the court the task of really fighting the very case that we are fighting before your Honour.

KIEFEL J:   May I clarify with you just what it is we are doing about the condition – the process that we are engaged in?  Your paragraph B to the amended statement of claim seeks:

A declaration that s 200(2) of the Corrective Services Act 2006 (Qld) is invalid to the extent it authorises the imposition of the conditions ‑ ‑ ‑

MR MERKEL:   Yes, your Honour.

KIEFEL J:   It is one of your arguments that that subsection, or the section, must be read compliant with the constitutional requirement of the implied freedoms.  If the section is read in that way, and at least with I think most of the intervener’s parties there seems to be no contest, what is it that you are saying about the condition?  Are you saying that it is when the section is read compliant with the constitutional requirement that it does not authorise the imposition of the condition?

MR MERKEL:   Yes, your Honour, that is how we put it in our ‑ ‑ ‑

KIEFEL J: Well, then it is not B that you are seeking because if the construction for which you contend is correct, section 200(2) can be read so as not to authorise the imposition of conditions if you are right about what the conditions – their inconsistency with the constitutional requirement. So what process are we involved in with respect to the conditions? Are we reviewing them?

MR MERKEL: Your Honour, we have tried to articulate that in paragraphs 79 and 80 of our original outline where we dealt with that very point – that is at page 21 – where we said that insofar as the section is relied upon to support the conditions, it goes beyond what could be permitted under the Constitution and, to that extent, invalid, but the alternative view that we put is ‑ ‑ ‑

KIEFEL J:   Is to read it subject to the ‑ ‑ ‑

MR MERKEL:   Yes, to read it down, but we then said if that conclusion is reached, then the special conditions would not – because they went beyond the power ‑ ‑ ‑

KIEFEL J:   Well, they would be invalid within the terms of section 200 itself.

MR MERKEL:   They would be because they went beyond the constitutional power, your Honour.

KIEFEL J:   Well, that is a judicial review question though, is it not?

MR MERKEL:   Well, not in the context of this case which involves a constitutional challenge raised under section 200.

KIEFEL J:   To the section, not to the conditions.  You do not seek any declaration with respect to the conditions.

MR MERKEL:   Well, your Honour, in the orders we seek, we seek a declaration – that is in 82C in the submissions – we say we seek a declaration that conditions are invalid and of no force or effect which would follow from the issue we raise in paragraph 80.

HAYNE J:   Well, are we to approach this on the basis that, conformably with the words of 200(2), the conditions in question were conditions that the Board reasonably considered necessary to ensure the prisoner’s good conduct or to stop the prisoner committing an offence?  Is that the factual footing upon which we are to proceed because I should say to you before you answer it, Mr Merkel, you do not put in issue in your pleading those points.

MR MERKEL:   That is correct, your Honour.  We put in issue the validity of the provisions on the basis that the statute cannot authorise the imposition of the burden on political communication that it does, and therefore to the extent that it authorises these conditions the section is invalid.  To the extent that is must be read down so as not to authorise these conditions, the conditions are invalid on the basis that they offend the constitutional freedom because they are provisions made by the Executive Government that constitute the necessary burden and if they are disproportionate in a sense set out in Hogan they are invalid.

KIEFEL J: In the latter case, that is to say which postulates that the section may be read conformably with the Constitution and is not invalid, but the conditions may be, what relief do you seek?

MR MERKEL:   A declaration that the conditions are invalid, your Honour, because if they are ‑ ‑ ‑

KIEFEL J:   By what process, not by reference to any constitutional question?

MR MERKEL:   Yes, it is entirely by reference to the constitutional question because we focus on the conditions and if the conditions offend the constitutional limitation on the basis that no member of the Executive Government can be authorised under an Act to impose these conditions because they offend the constitutional restriction then we say that the conditions themselves must be invalid because they cannot be authorised by the section.

KIEFEL J:   You do not have to go there, do you?  It would follow from you have said that the statute itself does not authorise the conditions.  That is the point.

MR MERKEL:   Therefore they are invalid, your Honour.  But ultimately the contest is whether conditions (t), (u) and (v), and we will come to the role of (u) in this shortly, but ultimately it comes down to whether those conditions offend, on this part of the case, the constitutional restriction.  If they do, we say that there are two sides to that coin and we have tried to set that out in those two last paragraphs of our submissions, but the ultimate relief we would seek is for a declaration that the conditions are invalid on that constitutional ground.  We do not raise in this case a question of ultra vires outside the constitutional ground.

BELL J:   You submitted, in answer to Justice Crennan’s question some time ago, that the decision not to allow the plaintiff to attend a particular meeting, on your construction of the Judicial Review Act, was not reviewable. The State submits at paragraph 78 of their submissions that the decision to impose the particular conditions pursuant to section 200(2) is reviewable. Do you take issue with that?

MR MERKEL:   Well, your Honour, we will have to have another look at Tang.  We understood the State to be putting what is judicially reviewable as the imposition of the conditions, not the consent of the parole officer.  The imposition of the conditions is judicially reviewable, but our point, it goes back to an anterior stage, we are not seeking judicial review of these conditions.  We are saying that there was no power to impose them because they offended the constitutional limitation.

FRENCH CJ:   The logically prior question must be what does section 200, properly construed, authorise?  Now, if the answer to that question is it does not authorise condition to this character, cadit quaestio.  You do not start at the back end by looking at the constitutional validity of the conditions.  A similar issue arose in Evans v New South Wales where we were confronted with a regulation relating to the annoyance of pilgrims in World Youth Day and the approach taken there, which reflected what I have just put to you, was to look first to the proper construction of the authorising provision of the Act.  Now, that may be answered by reference to the principle of legality.  It may be answered by reference to a constitutional reading down.  Is that not where we start? 

MR MERKEL:   It is where we start at 200, your Honour, but the starting point is 132(1)(a) because 132(1)(a) is part of the context for 200.  For example, if 132(1)(a) is valid in its application of parolees, that opens the range of potential offences for Mr Wotton.  So the real starting point in this case has always been 132(1)(a).

KIEFEL J:   It is not his offence under 132, it is the person who seeks to interview him. 

MR MERKEL: That is correct, your Honour, but it becomes his offence by reason of section 7 if he becomes an active participant.

KIEFEL J:   I see.

MR MERKEL:   So our real issue in this case is that the parole conditions come at the end of the analysis, not the beginning, because what 132 may authorise in terms of parole conditions because it does involve an offence gives a greater ambit to section 200.  If 132 is valid, it gives a greater ambit of course to what section 200 can do because 132 is part of the statutory scheme.  Because of the deletion of condition (u), the main battleground is really over 132(1)(a).  The real issue in this case is quite simple, and that is that Mr Wotton received a mitigated sentence because of his leadership role in the community both before and after the commission of his offences, a leadership role which in a sense is a model in terms of Aboriginal communities. 

He was involved in drug and alcohol rehabilitation, involved in promoting community issues. It is all set out in the sentencing remarks. It is all set out in the role he played in his submissions. The effect of his rehabilitation, which is the fundamental purpose of parole, would be to rehabilitate him to the position he occupied before his imprisonment, the constructive and good position he was occupying in his community. These parole conditions prevent him from – and section 132(1)(a) prevent him from engaging in any political communication without the chief executive's authority in 132 and in respect of a public meeting without his parole officer’s authority.

We say they constitute – and we take your Honours to these provisions - and I need to take you to the explanatory memorandum – they are unambiguously and clearly prohibitions directed at publication and media and public discussion of government and political matters and strike directly at the protected freedom and they apply in that way in respect to Mr Wotton.  We say that is really what this case is about, talking about Mr Wotton wanting to or possibly engaging in any comment that might be offensive to victims of the crime for which he was convicted is not suggested anywhere in the material.

The parole assessment review did not suggest any special conditions of this kind and we say that when you look at condition (u) in the context it becomes unambiguously a statutory scheme to prevent Mr Wotton having any public role of the usual kind that one would hope that an Aboriginal leader in his position could fulfil.  That is really what this case is about, not about any glorification or anything like that.  There is nothing in his record outside the kind of work that was set out.

FRENCH CJ: Well, we start, do we not, with the construction of section 132? That is what the first question requires us to look at, that is the first question in the stated case.

MR MERKEL:   Yes, your Honour, that is our starting point with ‑ ‑ ‑

GUMMOW J:   In looking at that, Evans v New South Wales is at (2008) 168 FCR 576, and what is the relationship between subsection (2) and subsection (1) of 132? Is 132 a defence or is it a denial of an element of the offence?

MR MERKEL:   We would say the latter, your Honour.  If the interview is conducted by or the written statement is obtained, then that element of the offence does not exist.  In other words, it could not constitute an offence in those circumstances because that requisite element is not there.

GUMMOW J: Section 132(2)(d) is one of those provisions which implicitly, though not expressly, confers upon the chief executive a power to give the written approval, is it not?

MR MERKEL:   Yes, your Honour.

GUMMOW J:   Then the question is, to what extent is the exercise of that power to give the written approval reviewable either under the statute in Queensland or under general principles of judicial review in the Supreme Court, I suppose.

MR MERKEL:   Yes, your Honour, but we need to take our argument in steps.  The first step, your Honour, is to demonstrate to your Honours why this is a direct and substantial, not an incidental, burden.  We want to take your Honours to the explanatory memorandum and the other relevant material to show this section is directed at preventing publication of material about prisons and prisoners which is very much at the centre of political and government matters.

HAYNE J:   The proposition that there is a direct burden is in part affected by, if not wholly dependant upon, the operation that is to be given to the statute.

MR MERKEL:   Yes, your Honour.

FRENCH CJ:   In that context, what do you say about paragraph 47 of Queensland’s submissions?

MR MERKEL:   We say a number of things, your Honour, but the first is that if it be correct, it is probably the best demonstration of our challenge to the provision in that it is about preventing publication because it is not concerned on Queensland’s view with the content of the information provided.  Therefore it is entirely incongruous that the prohibition is on the means by which that content is provided, and nothing can be more targeted at publication than the words “interview” or “written and recorded statements”.  So by attacking the means of communication, not the content of what is communicated, what is really demonstrated by the purpose of this section is to prevent that communication entering into the public domain via the media through publication and that is made ‑ ‑ ‑

FRENCH CJ: Do you accept as a matter of construction that section 132(1) does not prevent a prisoner from sending unsolicited mail to the media or anyone else?

MR MERKEL:   We say this, your Honour.  If it is to letters to the editor which invites communications to a designated address, it starts to fall very comfortably within the editor obtaining a letter.  If the letter to the editor wants to verify or maybe correct something in the letter – because they would not publish letters in the normal course – then the added facts would make it clearly obtaining.  Interestingly, your Honour, in the explanatory memorandum an example of breach of the section is an unsolicited letter which is inconsistent with that first sentence. 

But, ultimately, your Honour, when you look at the cases and the value placed on written and recorded statements and interviews in the political communication process, the only possible rationale for 132, given what is set out in paragraph 47, is it is not attacking content, it is attacking the means of communication. 

Just to give your Honours an example, in the ACTV Case, if rather than prohibit the broadcasting, political parties for a period up to elections and during elections were prohibited from engaging advertising agencies or public relations firms or professional assistants, that would effectively be attacking the means by which they would derive the content of communication.  That would be no less a burden on communication because it directly burdens their political advertising.

So we say that they make good the point, although it is very doubtful as to whether what is set out there is in fact correct, but what we would say is that if there is an oral unrecorded statement as to content, that could not possibly fall within section 132. So we do not need to get debate as to whether a manuscript contains written or recorded statements. It probably does. But let us take an unambiguous example of what falls outside section 132 and that would be an unrecorded statement.

If that is not prohibited because the content is permissible, with a parolee particularly because there are other provisions that would restrict the ability of prisoners in prison to communicate even unrecorded statements, then what possible purpose is served by this provision and we say it is all set out in the explanatory memorandum.  It is designed to prevent publication of matters concerning prisons and prisoners. 

But, can I take your Honours, before coming to the explanatory memorandum, although I probably should do so now to make good the point – I will jump ahead if I might - can I take your Honours to the explanatory memorandum to make good the point we have just put?  Can I indicate to your Honours that the examples of other legislation are set out in tab 6 of the folder that we have just handed up to your Honours of additional list of authorities? 

Can I just take your Honours through the memorandum starting at page 117 where it sets out what the clause does.  I should say, everything in this memorandum points to targeting journalists and publication.  The first example:

A journalist visits a prisoner claiming to be a friend of the prisoner and, without the chief executive’s approval, conducts an interview.

It does not suggest if the journalist falsely claims to be a friend.  He may really be a friend and therefore come in as a visitor and conducts an interview, whatever that might mean, but the example ‑ ‑ ‑

KIEFEL J:   I am sorry, Mr Merkel, did you say we are looking at tab 6?

MR MERKEL:   No, I am sorry.  Tab 6 sets out the legislation referred to.  I will come to tab 6.

KIEFEL J:   It is a note, but where are we reading from at the moment?

MR MERKEL: I am sorry, the explanatory memorandum, your Honour, to section 132. It is in our original list of authorities.

CRENNAN J:   Tab 12.

MR MERKEL:   I can hand up a copy to your Honour if your Honour does not have it in your original list.  Do your Honours have this document?  I am told there might be a bit of highlighting, your Honour.  It is at the top of page 118, your Honour, example, the journalist conducts an interview.  Even though that says “claiming to be a friend”, they may well be a friend.  But then the middle paragraph says this:

The clause is a translation of section 100 of the Act.  This type of clause has been incorporated into correctional services legislation in Queensland for more than 80 years.  The prohibition against unauthorised publications is not new to Queensland legislation –

Can I just stop there –

or to a court’s inherent jurisdiction –

“The prohibition against unauthorised publications”; there is no prohibition against publication in section 132. That is its purpose and intended effect and its practical operation. So in terms of the prohibition it is quite inaccurate. In terms of its operation it is precisely accurate. Then they give examples in respect of provisions similar to section 42 which your Honours considered in Hogan v Hinch.  We have set out in tab 6 with a brief – that is tab 6 of the folder we handed up today.

FRENCH CJ:   These are all suppression order type provisions.

MR MERKEL:   Yes, suppression orders, usually by courts or reviewable by courts.  We have endeavoured in the note to summarise all of those provisions, but they are all non‑publication orders, very unlike this non‑publication provision, talking of its practical operation, because none of them are in the hands of an executive officer who may have a very strong vested interested in what the content that might be published will do concerning the repute of his or her correction centre and is subject to the political direction of the Minister.

So we say that is a very accurate statement and the comparative provisions, which I should say, when you go to them, do deal with an identifiable content. The section 42 in Hogan v Hinch was about identifying persons giving evidence or persons the subject of proceedings.  Each of these Acts describes the legislative objective by reference to some characterisation of content or some characterisation of considerations that might be said to be mandatory and therefore relevant considerations or irrelevant considerations.  Your Honours are familiar with these provisions because Hogan v Hinch was really something very similar. 

Now, can we read on, because this was not just a mistake, “Dealing with competing public interests” down at the bottom of the page.  This is an offence provision, it is not just a chilling effect of a defamation action.  This is imprisonment:

The Bill does not provide prisoners with an express entitlement to have free association with any person.  The Bill provides through clause 153 minimum entitlements of a personal visit each week and visits from a legal visitor.  Clause 132 provides that a person without a familial or social relationship with the prisoner, must seek the authority of the chief executive before interviewing or photographing a prisoner.

Again, an inaccurate statement of what the section provides.  Someone with a family or social relationship who conducts an interview for whatever purpose or, more relevantly maybe, obtains a written or recorded statement is breaching the section unless they get the approval of the chief executive.

HAYNE J:   If it is an inaccurate statement of what the statute provides, for what purpose are we reading this?

MR MERKEL:   The purpose I am reading this, your Honour, is to show that the question which this Court is really concerned with, namely, the practical operation of a section such as this, can be seen to be prevention of publication and it comes out clearly from the legislative intent set out in the explanatory memorandum.  If this is not intended to deal with family communications, which it can potentially do, or it is not intended to deal with social relationships, which it is potentially covering, what is its intent and purpose?  It is about publication by the media.

HAYNE J:   So you say this is not the way the Act operates?

MR MERKEL:   No.  We say, your Honour, when you look at what this Court has said in Ha about looking at the practical operation and effect and not being befuddled by mere drafting devices, the drafting device here does not mention media but it squeezes the very lifeline of media information, namely, written and recorded statements and interviews.  So it is directed at publication and that is why it is there in the explanatory memorandum.  If a partner of a prisoner goes along and says to the prisoner, “What message do we want to give our child for our birthday” and she then writes it down, she is obtaining a written or recorded statement.

FRENCH CJ:  How does this inform the interpretation of section 132?

MR MERKEL:   It informs the operation of it, your Honour.

FRENCH CJ:   I am asking about the interpretation.  Are you saying that it somehow tells us something about the way in which the chief executive is going to exercise his or her discretion?

MR MERKEL:   No, your Honour.  It tells you what the words and what the significance of the words “interview a prisoner and obtain a written and recorded statement” are because when we take your Honour to the way in which the media has been viewed as operating in this area, primarily its integrity and reliability in the area of political communication, and in this area prisons or prisoners, fundamentally relies on veracity and checking of sources through written and recorded statements and interviews.  My learned friend’s alternative in an unsolicited letter to be taken up in the media without the possibility of a follow up or response is not the real world of political communication.

CRENNAN J:   Most people would think that if someone says, “What are we going to give our daughter for the birthday” and there is a written response, an interview has not been conducted. 

MR MERKEL:   No, your Honour, but it would fall ‑ ‑ ‑

CRENNAN J:   So something may turn on precisely what “interview” means.  The second point, Mr Merkel, is there is a disjunct between what is said in the explanatory memorandum and what the words of the section say.  Of what assistance is it to us to look at the extrinsic material?

MR MERKEL:   It is of enormous assistance.  I have not finished the explanatory memorandum, but it is of enormous assistance, your Honour, because it operates at a number of levels.  If the Parliament intends a provision to operate in a particular way, the Court should not readily dismiss the possibility or the probability of it operating in the way intended even if the words do not do so.  That was what Ha said, a drafting device is not to cloud the Court’s view of the practical operation of the statutory provision. 

Secondly, it helps identify the mischief to which this section is directed and it is not the birthday message to the child.  It is the publication by journalists via written and recorded statements and interviews which is the modus operandi of all political journalism, or should be reliable or responsible political journalism.  Thirdly, your Honour, by identifying the mischief, you can see how the response of the legislature, if there is a mischief, is totally disproportionate.  It is imposing, we say, a direct and substantial burden by its practical operation, but yet it does so without reference to any criteria as to content or any criteria as to the considerations that the chief executive is to take into account.

KIEFEL J:   That is not quite true, is it?  Read over at page 119.  I know that you are going to take us there, but perhaps this is the appropriate time to do so.  It says that it is not an intention to unduly restrict.  It is to provide the chief executive with discretion in making a decision under the clause.  The chief executive is to have regard to obligations to act responsibly, et cetera. 

MR MERKEL:   I will come to that, your Honour.  Can I just finish reading.  I will read it in context, because we still keep a focus on journalists and ultimately we must accept our argument stands or falls on whether this section is saved by the discretion conferred on the chief executive. 

KIEFEL J:   Well, just before you do, you say that the focus and context must be journalists, that this is directed at journalists, but it is also necessary to take into account, is it not, for context that this really about the exercise of control and discretion by the chief executive which is consistent with that which is exercised generally with respect to visitations to corrective services facilities under Part 2, Division 1?

MR MERKEL:   Yes.  One of our points, your Honour, is when you look at all the provisions and powers that the chief executive has under Part 2, one asks what additional mischief is this directed at and we say publication because it has all the powers there.  This alternative additional process must be directed at something else and that is what we say the cases tell you.  Your Honours had a similar consideration in respect of the fraud issue in Rowe.  Your Honours took different views about it, but it was said to be a prophylactic measure to cut back the enrolment period to stop fraud, a potential issue.  What was the mischief said to be created by the fraud?  There were other provisions in the electoral scheme which your Honours referred to, and the majority of the Court referred to, in the judgments that identified, well, these are dealt with elsewhere. 

Part 2 deals with, we say, all of the problems that section 132 deals with. So, what is the role of 132? What is the mischief it is directed towards? It tells us in the explanatory memorandum; publication. So we go on, your Honour, at the top of page 119:

It is not the intent of the clause to unduly restrict access to prisoners from journalists seeking to conduct interviews for bona fide purposes.

We will have something to say about what that might mean in the context of the view of chief executive –

However, it is intended that the clause will operate so that if a journalist wishes to publish an unsolicited letter from a prisoner, the journalist must first seek permission of the chief executive prior to publishing it.  The Department’s media unit will facilitate requests from journalists who seek information or wish to conduct interviews.

The intent of clause 132 is to provide the chief executive with discretion, when dealing with a sensitive and volatile correctional environment, to balance the competing interests of freedom of expression and the safety and security of persons within the correctional environment.

Can I just stop there. I will take your Honour through in detail the provisions of Part 2 which deal comprehensively and entirely with the sensitive and volatile correctional environment. So section 132 cannot possibly have any real relationship with the issues said to be addressed there.

The chief executive in making a decision under this clause will also have regard to obligations to act responsibly towards victims of crime and their families, and take into consideration the likely impact the publication of an interview with a prisoner may have upon a victim, the victim’s family and other community members.

Can I just stop there.  We have absolutely no quarrel with that as a legitimate object.  The proceeds of crime legislation deals with that very subject matter.  A section tailored to protect victims from the harm and hurt by reference to the forfeiture provisions of that legislation would be tailored to deal with the mischief said to be addressed, but a prohibition on communication unrelated to content left entirely to the discretion of the chief executive, however it is described, we say is not an appropriate way for this Court to regard a burden on political communication to operate if it be in the category that we say it is concerning the prisoners and the media.  But, again, it is the likely impact, the publication of an interview, not the likely impact of any person, “any person” meaning anyone who is not a prisoner, receiving a recorded statement.  It is what they are doing with it that this is all about.  Then:

Other considerations include a responsibility to the community to ensure that the publication of an interview does not jeopardise the integrity of an investigation or the security of a corrective services facility and there is a clear responsibility to secure the safety custody and welfare of both staff and prisoners.

What has that got to do with parolees? The only possible operation of this section in respect of parolees is to prevent publication of information about prisons and prisoners. In respect of jeopardising and investigation, there is a specific prohibition in section 86 of the Criminal Code to not identify informers applying to everybody.  There is a specific provision in regulation 20(x) preventing a map being made inside of a correctional centre.  But what possible justification, we ask rhetorically, can be there for 132 if the information itself is not prohibited?  Why target the means?  We say it is all there.  Publication, publication and publication, it is the sole focus of the explanatory memorandum.  It is the sole focus of the statutory provisions at page 118 that this is said to be replicating or following. 

Now, we say, your Honour, that is why when we come to the first Lange question, and we wanted to identify four aspects of that question which we have endeavoured to set out in our written outline we have handed up this morning, but at paragraphs 94 to 95 – and I do not need to take your Honours there, your Honours are very familiar with it – but we say the substantive question is, does the section 132(1)(a) and the conditions which are challenged effectively burden the freedom of communication in their terms, operation or effect?

We say, secondly, that the burden is direct and substantial, not indirect or incidental and we say because of that, it is much more difficult to justify and we say it would have very far‑reaching consequences for the freedom if a burden of this character were reposed entirely in the discretion of a member of the Executive subject to political direction to grant a dispensation without reference to any criteria other than those that might be found in the constitutional freedom and in the scope, purposes, et cetera, of the Act.  We say that would be a severe diminution of the freedom of political communication which, I should say, does not find any warrant in any of the decisions relied upon by our learned friends.

KIEFEL J:   Can you determine the extent of the burden without considering at some depth and not superficially the question of the extent and reviewability of the chief executive’s discretion?

MR MERKEL:   Your Honour, we accept reviewability in terms of judicial review, but can I – again I am jumping ahead.  Cunliffe, which was a very indirect and incidental burden on registration of a migration agent, was saved because, amongst other things, it set out detailed statutory criteria about who must be registered and who may not be registered.  It then allowed a board, not a person subject to ministerial direction having a political role, a board to determine the suitability or competence – so there was an objective criterion – but, importantly, the review available in Cunliffe was AAT and AD(JR) Act review.

So to say judicial review, which must necessarily disallow merits review, is a sufficient way of allowing a discretion of this kind to be reposed in a member of the Executive, not an independent body such as the Migration Board, we say is a dramatically different situation and we say that that is reposing the freedom and the discharge of it in a way that is quite inconsistent to the proportionality that is required.

KIEFEL J:   The review you are speaking of, you accept, is under the Judicial Review Act (1991)?

MR MERKEL:   Yes, your Honour.  The judicial review of the decision of the chief executive under (2)(d) would fall under that Act.  It is a decision under an enactment.

KIEFEL J:   So you say that the burden is assessed by reference to the chief executive’s decision being judicially reviewable but not being sufficient because it will not have regard to the merits – it cannot have regard to the merits? 

MR MERKEL:   There is no merits review.

KIEFEL J:   So that is the area of the burden?

MR MERKEL:   Well, no, it is much stronger than that, your Honour.  We say that the very need to get permission for a constitutionally protected activity is a burden in itself.  We will take your Honours to the concept of a muffling or chilling effect which has been observed when similar consents or authorities are required.  Let us return to the real world.  A journalist who has got a potential story about a prison or a prisoner has to go along and first ask the chief executive who has direct responsibility for the conduct of correctional services whether that journalist can pursue that story, has to disclose the sources, has to disclose the content, has to disclose the purpose, before the story has eventuated. 

In the real world, what journalist would undertake that path by putting on notice the very target, and the very target or the person responsible for the very service is able not only to give or refuse permission but is able to then investigate in a parallel way the justification.  Again in the real world, the correctional chief executive says, “This is an outrageous complaint by the prisoner.  There is not violence or there is not corruption, or there are not drugs”, or whatever.  So he says, “This is not a bona fide investigation.  I do not believe the prisoner.”  All the cases have said you do not look at the freedom of political communication on whether what is said is justified or what is said is necessarily right or wrong.  The reposing of this discretion in a person with a direct interest, no matter how bona fide that chief executive might be, is simply not a proper or adequate protection of the freedom, given that this is not a Cunliffe Case.  This is not about a migration board registration.

KIEFEL J:   Does the judicial review of which you speak take place without reference to the constitutionally guaranteed freedom?  Does it not take account of it in terms of what is or is not a relevant consideration and what should guide it?  Now, it might be that some adjustment to the usual bases upon which judicial reviews are conducted, but maybe one needs to know the answer to that to know what could be the outcome here.

MR MERKEL:   Your Honour, again, of course, as a matter of law the construction should have regard to constitutional limitations.

GUMMOW J:   Yes, but constitutional limitations are limitations upon legislative power.

MR MERKEL:   Yes, your Honour.

GUMMOW J:   That is the importance of Lange.  Not these pre‑Lange cases which you are greatly attracted to.

HAYNE J:   Thus, the relevant ground in the statutory orders for review would surely be section 20(2)(d), that the decision was not authorised by the enactment under which it was purported to be made.  It was not authorised because it is beyond legislative power to restrict it.

MR MERKEL:   Your Honour, to repose the answer to that question in the chief executive as the primary decision‑maker ‑ ‑ ‑

HAYNE J:   No, Mr Merkel, you are reposing the answer to that question in the courts.

MR MERKEL:   Your Honour, we say ‑ ‑ ‑

FRENCH CJ: We are concerned, are we not, with the proper construction and limits of the prohibition and of the discretion imposed and conferred by section 132, not with whether the chief executive gets it wrong or abuses his or her power. That is the question we have to direct ourselves to when we are looking at whether or not it can be said that section 132, properly construed, offends against the implied freedom of political communication.

MR MERKEL:   Yes, your Honour, we accept that is correct, but what we do say, your Honour, is that when one comes to look at the consent cases, there is one marked contrast to those cases and this case, and that is that where the written approval is not governed by any criteria ‑ ‑ ‑

FRENCH CJ:   It is governed by the limits of legislative power and the authority given to the chief executive under the legislation made pursuant to that power so limited.

MR MERKEL:   We put simply, your Honour, that the burden is created by the need, taking this scenario for the journalist to have to seek approval and disclose the purpose and content and subject matter for which the approval is sought, it also is limited by the power which can operate about conditions – the approval can be granted on conditions that may have the journalist, for example, have to report back on the content of the publication. 

It is then burdened by the need to go and have judicial review of that decision in respect of that interview and the total unreality of journalists exposing themselves to that burden and papers exposing themselves to that burden of judicial review in the Supreme Court, and then it is based upon a review that is not a merits review, and the difficulty of finding whether the facts and circumstances of this case were within the realm of the protected freedom or not, and we say reposing that in a non‑legal person in the first instance as the decision‑maker, and then it is not saved by the fact that it is reviewable in a court, and there is no decision we have ‑ ‑ ‑

FRENCH CJ:   The constitutional question is not to be answered by reference to the inadequacy or deficiencies of the remedies, is it?

MR MERKEL:   Except for this, your Honour, that the authorities we have mentioned in our reply submissions, including in this area, have strong regard to the chilling effect of the process required to be followed.  The chilling effect, Justice McHugh referred to it in Hogan, that the very risk that you take and the very process you must undertake is itself part of the burden.

FRENCH CJ:   What do we know about the process within the statutory framework apart from the fact that the authority of the chief executive is required?

MR MERKEL:   Sorry, could your Honour say that again?

FRENCH CJ:   What do we know about the process, apart from the fact that chief executive’s written approval is required?

MR MERKEL:   Nothing, your Honour.  The only thing we know about the process is that we had mentioned in our submissions the Tamara Walsh article, if I could just take your Honours to that.  That is “Suffering in Silence:  Prohibitions on Interviewing Prisoners in Australia, the US and the UK”.  Again, and not surprisingly, the occasion for the article, which is in the Monash University Law Review, Volume 33, No 1 at page 72 was a prosecution against a journalist from The Australian in the Magistrates Court for breach about safety of the person’s conviction, but we get at the top of page 74, the reference at that time to:

The Queensland Department of Corrective Services’ media access policy states that decisions regarding media access should be directed towards ‘maximising positive media coverage and outcomes for the Department’s activities’ and ‘enhancing public confidence in the corrections system in Queensland’.

The footnote sets out that is the policy.

The policy states that media access ‘will not be granted’ where it ‘could embarrass’ the Department, or where its purpose is to ‘investigate issues related to the offender’s alleged innocence’ -

a matter in Simms that was regarded as having a high public interest and high public policy purpose.

I think there is another passage where she refers to the Queensland process at 85 down in the last paragraph about the other problems, “blanket restrictions” which I will take you to in the other sections of the Act.  We mentioned that in footnote 68 which was referred to in paragraph 55 of our submissions and we said that the author referred to the access policy which suggested decisions regarding media access should be directed – that set out the passage – that:

The Department’s present website does not reveal any similar policy but the Plaintiff is not aware of any policy that would preclude these factors from being taken into account in relation to decisions concerning media access to prisoners.

Apart from that, there is no other evidence that has been placed before you, notwithstanding that issue being raised directly in our submissions.  Of course, if the written reasons set out the 2005 policy the journalist, after following judicial review, may go to the Supreme Court and may succeed but as a proportionate response we say general judicial review, with all its inadequacies and limitations in terms of merits review, could never be an adequate – repose not in an independent legal body the original decision.

If the original decision was in open court with evidence and so forth one might have a slightly different approach but of course the real world is going to look at that and say, “This is not realistic” and indeed it is very similar to what your Honours looked at in Hogan v Hinch.  Justice McHugh’s decision obviously was not in Hogan v Hinch.  I will take your Honours to the chilling effect – where it came up.  Can I take your Honours to what Procunier v Martinez was about. That is the US Supreme Court case, 416 US 396.

HAYNE J:   Just before you do that your repeated reference to “the real world” seems to be a world in which there is continued disobedience to established principles of law.  Is that right?  That is, if this Court were to hold that these powers were limited in a particular respect are we to assume that that holding would be obeyed or disobeyed?

MR MERKEL:   Your Honour, the respect – we are not asking your Honours to assume that what this Court says would be disobeyed.  What we are asking your Honours to look at is the complexity of the determination of whether they had been obeyed or disobeyed in the decision in question.  As this case demonstrates, we are arguing those very questions before seven of your Honours with the whole Bar table here and maybe 100 or more pages of submissions and a great deal of evidence.  To expect that that would occur and not constitute a burden we say is unrealistic but we do not suggest for one minute that any decision‑maker would intentionally disobey this Court.

Your Honour, I wanted to take your Honour to - Procunier v Martinez was about mail censorship regulations which were found to be unconstitutional.  The relevant part that I wanted to take your Honours to is to the criteria that was said to be applied.  That is at page 415, the regulations at the top in “Opinion of the Court”:

The regulations invalidated by that court authorized, inter alia, censorship of statements that “unduly complain” or “magnify grievances,” expression of “inflammatory political, racial, religious or other views,” and matter deemed “defamatory” or “otherwise inappropriate.”  These regulations fairly invited prison officials and employees to apply their own personal prejudices and opinions as standards for prisoner mail censorship.  Not surprisingly, some prison officials used the extraordinary latitude for discretion authorized by the regulations to suppress unwelcome criticism.

GUMMOW J:   Well, it was over broad.

MR MERKEL:   Yes, your Honour.  We say the same here, that that at least set out some criteria.  We do not have any.  But can I make this point.  Which prisoner subject to prison regulation or which parolee subject to the extraordinary discretion reposed in the Parole Board and the parole supervising officer would wish to be known as a troublemaker or an agitator by stirring up problems and complaining about the prison administration, not to the ombudsman, but to the media and going public.  I think your Honours will find very, very few volunteers for that task. 

That is why the chilling effect is not just in the seeking of permission but is the necessity to disclose to the very person responsible for the institution the subject matter of the grievance.  Of course, it may be praising the prisons and that newsworthiness may itself find publication but it does not matter.  We say that this is effectively not just a chill, it is a freezing of the sources of information which is not saved by the judicial review. 

I should say Justice Powell in the passage we referred to in our reply talked of the fine line between a bona fide decision and a decision that must be motivated in part by a correctional services officer in self‑interest, not actually having authorised the publication or scandal that hit the newspapers.  One could hardly imagine that process leading to his praise or her praise by the Minister.

GUMMOW J:   Is not the critical passage at 415, second paragraph? 

MR MERKEL:   Yes, your Honour, and we say the same here.  We say that – and I will come to this shortly - the absence of any mischief sought to be addressed by this provision falls fairly and squarely within that paragraph, but to say it needs to apply to a parolee is divorced from any government interest.

GUMMOW J:   I was going to ask you about that.  Are there any United States cases dealing with parolees?

MR MERKEL:   We have not found any instance anywhere of the provisions that are in question in the present case, including those applying to prisoners apply anywhere to parolees.  We have set out in our notes all the standard parole conditions – I think it is at footnote ‑ ‑ ‑

FRENCH CJ:   I think Hyland v Procunier ‑ ‑ ‑

MR MERKEL:   Sorry, your Honour?

FRENCH CJ:   Hyland v Procunier 311 F Supp 749 but that was about giving a public speech. That was a parolee prohibited from giving public speeches.

MR MERKEL:   Yes.  Sorry, we had not picked that up, your Honour.  We are not aware of any – it may have happened ‑ ‑ ‑

FRENCH CJ:   It is a United States District Court, Northern District California.

MR MERKEL:   That you, your Honour.  We have set out in our submissions the various – we have set out at footnote 35 of our original submissions – sorry, our reply submissions at page 6 all the different forms of parole conditions including mandatory and discretionary conditions and none of them touch upon anything of the kind the subject of the present case.

We have looked at regulations in prisons. We have the standard form regulations published by all the correctional services in Australia and none of them suggest a mischief of the kind section 132 has suggested it is addressing. There are no non‑publication provisions and we say that the absence of any evidence in the present case as to a mischief makes this even a weaker case in many ways than the fraud issue was in Rowe, because at least there were some suggestions, not of systemic fraud, but some suggestions that there was some actual fraud that may have occurred, but certainly nothing that could not adequately be dealt with.

What we say ultimately is that following what was said in Ha, which was cited by your Honours Justices Gummow and Bell at paragraph 151 in Rowe, and also cited in this context in Mulholland at paragraph 223 by Justice Kirby, what we say your Honours did in Coleman v Power, and also in Hogan v Hinch, Coleman v Power you looked at section 7(1)(d) in its application to, I think it was Mr Power, in the circumstances of that case. The word “insult” did not of itself look like it had any political connotation. In Hogan v Hinch you looked at an order made under section 42 insofar as it operated in the circumstances of that case.

What we say one derives from the approach in Ha in the present question is to ask how does section 132(1)(a) operate in respect of Mr Wotton and what mischief is it addressing? Firstly, it is unique and without parallel in Australia and we are not aware of anything like it applying to persons on parole elsewhere. We do not for one minute suggest it is not possible to impose bands on a person on parole, and the best example is not on parole, but in Olson v Canada there was a serious problem with the prisoner in that case seeking to glorify himself and there was psychological evidence that was very harmful to that prisoner’s rehabilitation.

GUMMOW J:   What is the citation of Olson?

MR MERKEL: It is [1996] 2 FC 168, your Honour.  Access to the media was restricted so as to reduce the prisoner’s notoriety.  One has not the slightest difficulty of translating that problem to a parolee.  If there were evidence that Mr Wotton was engaging in activities in parole of the kind Mr Olson was engaging in in prison it would be entirely legitimate and open to the Parole Board to impose a condition on the basis that it was harmful to his rehabilitation.  I should say in Olson there was a great deal of psychological evidence which supported how harmful this quest for publicity was and there are no doubt many prisoners in Australia in Mr Olson’s position.  But there is not a skerrick of a suggestion Mr Wotton falls into that category.

So one can accept, given – and Mr Nilsen’s case, that is a UK case, is another example where a prisoner had written graphically about his own crime and the prison authorities did not allow the manuscript to go out of the prison, it was elsewhere.  But again, one can see, given a particular circumstance there are legitimate interests that can be protected on parole, as well as in prison.  But on parole those interests are very, very precise and conditions or legislative provisions can be tailored to deal with them, such as the forfeiture of legislation in respect to proceeds of crime, which would apply to any person who has committed an offence.

Can I go now to what we say is replicated in the Correctional Services Act and other correctional services regimes which are the usual provisions which are protective of the volatile environment that the explanatory memorandum spoke of.  They are all in Division 4, Part 2 of Chapter 2.  I will take your Honours briefly through them because they are the sort of provisions you would expect and they all operate within the prison environment.  Starting with 44 at page 56, you have got ordinary mail, then you have got censoring of mail.  Can I indicate this.  We are not here engaged in looking at the justification of these, but what we are asking is what added mischief does 132 address in the light of these and we say you will not find any. 

If you look at 45(2), there is privileged mail. So privileged mail is not to be opened unless there is a reasonable suspicion that it contains something that may be harmful; again, can I indicate, criteria addressing the mischief sought to be addressed, something absent in 132. The definition of “privileged mail” is very interesting in regulation 18, which is at page 15 of the regulations, which is the second part of that folder that your Honours have. It is interesting to contrast the category of persons for whom privileged mail is to be able to be received with the narrow group of persons who are able to obtain oral and written statements. There is a range of persons, very few of which fall under the exception in 132; the Minister, not within 132; a member of the Legislative Assembly, not within section 132. The chief executive, we would assume, would be okay.

FRENCH CJ:   Which regulation are you referring us to?

MR MERKEL:   Regulation 18, your Honour.

FRENCH CJ:   Thank you.

MR MERKEL:   So we have got at page 15 the first two not within 132, the chief executive we would say is okay, the ombudsman would be okay.  The chief inspector is not there but may be an employee of a law enforcement agency.  The Commonwealth ombudsman, that would not appear to fall within the definition of 132, right to information commissioner, not within 132; the Attorney‑General of the Commonwealth, not within 132.

FRENCH CJ:   We can read all that for ourselves, thank you.

KIEFEL J:   But all of this means that they have to seek the consent of the chief executive as well.

MR MERKEL:   Yes, your Honour.  I have said it enough, that the absence of criteria is itself a problem.  Can I go back to the sections dealing with all this.  If we go to section 46, power to seize and search mail, again, by reference to criteria.  Section 47 deals with prohibited things and I will not take your Honours to it but ask your Honours to note regulation 20(x) deals with a map as a prohibited thing.  Section 48.  Then there is a register of privileged mail searches in 49.  Then there is phone call contact to approved persons and approved phone numbers at 50.  At 51 you have got personal video conferences for approved prisoners, and then you have got 52 dealing with recording or monitoring prisoner communications.

FRENCH CJ: Well, now just getting back for a moment to section 132, does all of this lead to a proposition – I am just trying to understand what you have been putting to us earlier – that section 132 cannot be read down or interpreted consistently with the implied freedom of political communication because of what you call the chilling effect because of the impossibility, as it were, of keeping it within those bounds? Is that really what you are saying?

MR MERKEL:   Yes, your Honour.  I had indicated, and I will not take your Honours back, we add on sections 128, 129, 130 and 138 as additional protective provisions to protect the environment within prisons.  There is seizure of property under 138, again with criteria and likewise in 127, 128 and 129 and 130, again provisions.  Can I take your Honours just briefly, because Queensland seek to justify some of the restrictions by reference to not profiting from crime, in volume 2, the Criminal Proceeds Confiscation Act is there, and I just wanted to take your Honours to section 200, which is at page 12, which again gives you an idea of what is targeted in this area and what may legitimately be targeted in respect of a parolee to ensure good conduct and consistency. 

It is not an offence to make these profits but it is liable to forfeiture, but what is the depiction that is liable to forfeiture – a benefit about either of the following in 200(1)(b)(i) and (ii) “a depiction of the . . . offence in a movie, book”, et cetera, or:

an expression of the prescribed respondent’s thoughts, opinions or emotions about the confiscation offence.

Again, we are far, far removed in the present case from any suggested mischief in that area both in terms of section 200 and in terms of Mr Wotton. So what we have endeavoured to say in our outline to your Honours this morning is the burden that section 132 provides is a burden at four levels. It, we say, is a direct and substantial burden for the reasons we have outlined on:

a.the media’s freedom . . . about political and government matters concerning prisons or prisoners;

b.the plaintiff’s (and other prisoners’) freedom to provide such information to the media;

c.the plaintiff’s freedom as an elector (and other prisoners’ freedom as electors) to engage and participate in public discussion and debate with other electors –

and that is a precise reflection of one of the aspects of this freedom referred to in Lange at page 560.  I only mention it to your Honours, I do not need to take you there.  Also the fourth level –

d.the electorate’s freedom to receive information about political and government matters (including prisons and prisoners) from a ‘prisoner’.

As defined.  Now, we have taken your Honours to the terms and to the explanatory memorandum.  Can I just briefly take your Honours to in saying why this burden is substantial.  There are some cases and brief references I would like to take your Honours to which we say are relevant.  In ACTV there was a helpful discussion on the role of the media in respect of political communication.  What we are really saying is that the role of the media is an indispensable element of this communication to be effective, and that was dealt with Chief Justice Mason at 139.

GUMMOW J:   How many years ago is that?

MR MERKEL:   Your Honour, that is 1992, but what was ‑ ‑ ‑

GUMMOW J:   That is in the age of the old media.

MR MERKEL:   The old media?

GUMMOW J:   Yes.

MR MERKEL:   Your Honour, the only thing that we would say is changed is that media now has a more extensive meaning and there is a social media and that is a broader process of communication.

GUMMOW J:   And a shrinking world of print media.

MR MERKEL:   Shrinking world of print media but an expanding world of electronic media, but everything that was said in ACTV applies with the same force to all forms of media communication, whether it be social media, print media or television media.

GUMMOW J:   Or however irresponsible private media might be.  Well, these are serious questions, you see.  We are not living the age of the London Times as the thunder in the 19th century; things have moved.

MR MERKEL: We have a very precise answer to your Honour on that and that is that if any mischief were identified that suggested parolees’ communication to an irresponsible media might cause a public harm, then 132 could be addressed to that mischief. But, more importantly, there is a second direct answer and that is there is nothing in the application of section 132 to Mr Wotton that would justify the burden imposed in the circumstances of this case.

GUMMOW J:   That is true.  All I am suggesting to you is ACTV is a matter of some historical interest.

MR MERKEL:   All three of their Honours, Chief Justice Mason – I will only mention the passages – at 139, Justice Gaudron at 211 to 212, Justice McHugh at 231, all cited what Lord Simon said at footnote (6), and can I just read that with one change having regard to what your Honour said to me, and I totally accept:

People cannot adequately influence the decisions which affect their lives unless they can be adequately informed on facts and arguments relevant to the decisions.  Much of such fact‑finding and argumentation necessarily has to be conducted vicariously –

I will take out the words “public press” and say that is historic, all forms of media communication being the principal instrument, but the electronic mainstream media of television, whether it be radio, whether it be press, they are the major influences and we add to that the social media.

FRENCH CJ:   You accept, would you not, that the implied freedom not privilege the media?

MR MERKEL:   No, it does not privilege the media, your Honour, but the media is entitled to the protection of the freedom.  It does not privilege it.  That is why we have set out the four aspects.  Indeed, in Procunior v Martinez the restriction of censorship was dealt with not on the prisoner’s entitlement to freedom of speech, but on the recipient’s entitlement in respect of ‑ ‑ ‑

FRENCH CJ:   This is not an entitlement.  This is a limitation on power.

MR MERKEL:   I accept that, your Honour.

FRENCH CJ:   That is the difference between the United States First Amendment and ‑ ‑ ‑

MR MERKEL:   Absolutely correct, your Honour.  We do not have any quarrel with that, but when it comes to the burden, the four levels at which we say 132 operates as a practical burden apply with equal force.  So it is that source of information that has been cut off.  I am reminded, your Honour, in Theophanous Justice Deane – and Theophanous is in our bundle that we handed up this morning – can I just ask your Honours to note in Theophanous at page 186 ‑ ‑ ‑

FRENCH CJ:   The citation please?

MR MERKEL: It is (1994) 182 CLR 104 and we have referred to the chilling effect in our additional list, but at page 186 his Honour Justice Deane said the following and this really responds more succinctly than I have to your Honour Justice Gummow’s question:

Ultimately, however, the authors of such communications and discussions published through the mass media are individuals and publication of them is the means of communication of the political statements or views of an individual, namely, the immediate author or the individual who directs or influences what the immediate author writes or says.  More important, and notwithstanding the potential for abuse, the freedom of the citizen to engage in significant political communication and discussion is largely dependent upon the freedom of the media.

We would give that the expanded meaning that one would say operates today.  Can I just move away from that to the next aspect.  There are two cases which have set out the significance of the role of interviews and getting reliable information from prisoners.  The first is Simms [2000] 2 AC 115, which is on our list of authorities. That concerned certain rules that prohibited access by the media to prisoners and there was a blanket policy of refusal of access and it came up in the context of prisoners seeking to challenge the safety of their convictions but what was said in the context relevant for the present purposes is set out at Lord Steyn at page 128 in paragraphs G and H at the bottom of the page. His Lordship said:

First, until the Home Secretary imposed a blanket ban on oral interviews between prisoners and journalists in or about 1995, such interviews had taken place from time to time and had served to identify and undo a substantial number of miscarriages of justice.  There is no evidence that any of these interviews had resulted in any adverse impact on prison discipline.  Secondly, the evidence establishes clearly that without oral interviews it is now virtually impossible under the Home Secretary’s blanket ban for a journalist to take up the case of a prisoner who alleges a miscarriage of justice.  In the process a means of correcting errors in the functioning of the criminal justice system has been lost. 

Now, the real point being made, and of course it applies with equal force here, is that the process of interview is a fundamental means of checking veracity and reliability of information.  That is set out at page 129 in paragraph A:

I am reasonably confident that once it is accepted that oral interviews with prisoners serve a useful purpose in exposing potential miscarriages of justice the Home Secretary would not wish his present policy to be maintained.  But, if I am mistaken in that supposition, my view is that investigative journalism, based on oral interviews with prisoners, fulfils an important corrective role, with wider implications than the undoing of particular miscarriages of justice. 

Then the second case where this is addressed is by Justice Powell in dissent in Saxbe, and I do not think what his Honour said in Saxbe 416 US 843 is in any way diminished by his Honour being in dissent in Saxbe.  The passage I wanted to take your Honours to is 853 to 855.  His Honour said at 853, last paragraph: 

The District Court received testimony on this point from six knowledgeable persons.

This is about interviews by journalists with prisoners.

All agreed that personal interviews are crucial to effective reporting in the prison context.  A newsman depends on interviews in much the same way that a trial attorney relies on cross‑examination.  Only in face‑to‑face discussion can a reporter put a question to an inmate and respond to his answer with an immediate follow‑up question.  Only in an interview can the reporter pursue a particular line of inquiry to a satisfactory resolution or confront an inmate with discrepancies or apparent inconsistencies in his story.  Without a personal interview a reporter is often at a loss to determine the honesty of his informant or the accuracy of the information received.  This is particularly true in the prison environment, where the sources of information are unlikely to be well known to newsmen or to have established any independent basis for assessing credibility.  Consequently, ethical newsmen are reluctant to publish a story without an opportunity through face‑to‑face discussion to evaluate the veracity and reliability of its source.  Those who do publish without interviews are likely to print inaccurate, incomplete, and sometimes jaundiced news items.  The detailed testimony on this point led the District Court to find as a fact that the absolute interview ban precludes accurate and effective reporting on prison conditions and inmate grievances. 

The District Court also found that the alternative avenues of prisoner‑press communication allowed by the Policy Statement, whether considered singly or in aggregation -

and this is about written communications -

are insufficient to compensate for the prohibition of personal interviews.  For the reasons stated above, correspondence is decidedly inferior to face‑to‑face discussion as a means of obtaining reliable information about prison conditions and inmate grievances.  In addition, the prevalence of functional illiteracy among the inmate population poses a serious difficulty; many prisoners are simply incapable of communicating effectively in writing.

Then his Honour goes on at 860 and the ban was not subject to an administrative discretion, but at the bottom of 860:

The interview ban is categorical in nature.  Its consequence is to preclude accurate and effective reporting on prison conditions and inmate grievances.  These subjects are not privileged or confidential.  The Government has no legitimate interest in preventing newsmen from obtaining the information that they may learn through personal interviews or from reporting their findings to the public.  Quite to the contrary, federal prisons are public institutions.  The administration of these institutions, the effectiveness of their rehabilitative programs, the conditions of confinement that they maintain, and the experiences of the individuals incarcerated therein are all matters of legitimate societal interest and concern.

GUMMOW J:   I think it is to be noted in understanding Saxbe that there were no parties to the litigation who were inmates.  It is simply the rights of the newspaper, is it not or is it not ‑ ‑ ‑

MR MERKEL:   Yes, your Honour, and it is said not to be in any privileged position.  But what is interesting in the American cases in contrast to the present is there was evidence like the prelude to Pell v Procunier, for example, was an unrestricted access in California which had led to the problems of big wheels and problems of notoriety in prisons and problems in prison discipline, so evidence justifying a mischief sought to be addressed by the burden imposed on the right in the American context.

GUMMOW J:   Martinez is different because it was a class action on behalf of the inmates, was it not?

MR MERKEL:   Yes, your Honour.  So that is the obvious value of written and recorded statements and interviews in the context of reliability and accuracy of publications.  Now, can I move next - his Honour Justice Powell set out with some degree of precision the range of government and political matters that arise in the present context concerning prisons.  The present case involves prisons.  The present case involves what have been defined in our special case as Palm Island matters.  So what is the burden on Mr Wotton and can we take your Honours to 44 to 45 of the special case book?  In other words, as Coleman v Power operated in respect of Mr Power, how does section 132 operate in respect of Mr Wotton? These are the agreed facts. At paragraph 2 d) he:

has participated, and wishes to continue to participate, in public discussion of matters relating to the governance and administration of the Palm Island community and, in particular, matters relating to the interests of the Palm Island Aboriginal community (Palm Island Matters); and

e)wishes to participate in public discussion of political and social problems affecting Aboriginal persons in Australia and problems in the prison system in Queensland that he experienced as a result of his incarceration –

Then there is the acceptance in paragraph 15 that the problems that had arisen in Palm Island, which is one of the largest Aboriginal communities in the country, with one of the highest rates of unemployment, there is an acceptance that:

The death of Mulrunji Doomdagee and the subsequent events relating to his death, including the police investigation, the coronial inquiries and the Crime and Misconduct Commission inquiry raised numerous issues of continuing concern to the Australian community and, in particular, to Aboriginal citizens of Australia.

Not entirely coincidental the findings of the Crime and Misconduct Commission were handed down in June 2010 and were set out in detail in Mr Wotton’s submissions to the Parole Board and then one finds these blanket bans which I will come to shortly that were imposed upon him.

Just on the question of police conduct in Coleman v Power at paragraph 80 Justice McHugh and in paragraph 197, I think, Justice Gummow and Justice Bell - I may be wrong on that - had referred to police conduct being a matter covered by the implied freedom.

GUMMOW J:   What was the paragraph of Justice McHugh?

MR MERKEL:   Can I just check that, your Honour?  It is paragraph 80, I think, at page 45.  In the middle of the page Justice McHugh had said about point 4:

The conduct of State police officers is relevant to the system of representative and responsible government set up by the Constitution. State police officers are involved in the administration and enforcement of federal as well as State –

offences and then there is a reference down at point 8.

GUMMOW J:   Sorry, which page are you reading from?

MR MERKEL:   Page 45, your Honour, in paragraph 80 of Coleman v Power.  There is a reference at the bottom of that paragraph to police officers enforcing federal law and investigating federal offences:

Allegations that members of the Queensland police force are corrupt may reflect on federal Ministers –

and so forth.  Then in the same case at paragraph 197, I think your Honours Justice Gummow and Justice Hayne - sorry it was not Justice Bell - at the bottom of 197, your Honours said:

Given the extent to which law enforcement and policing in Australia depends both practically, and structurally (through bodies like the Australian Crime Commission) upon close co‑operation of federal State and Territory police forces, there is evident strength in the proposition that an allegation that a State police officer is corrupt might concern a government or political matter . . . It is, however, not necessary to decide that point.

In the present case there is not really a capacity to suggest that the issues in which Mr Wotton wishes to be involved, Palm Island matters and public interest matters as set out, are anything other than matters very much within the protection of the implied freedom of political communication and not least of all, of course, you have the race power under section 51(xxvi) be a federal matter, but prisoners’ deaths in custody, police conduct, unemployment, all of those problems must lie at the heart – drug and alcohol addiction in Aboriginal communities must lie at the heart of what we are concerned with.

We do not say it is necessary to go that far, but we say that the subject matter of the implied freedom is accurately stated in Lange at 571 to 572 and I think in Hogan your Honour the Chief Justice at paragraph 49 had indicated that that may well constitute a fair description of the range of protection, even though this Court may not have finally resolved it.  We would say the matters that Mr Wotton raises clearly fall within that protection. 

I wanted to now take your Honours to the particular aspect of the burden on Mr Wotton’s freedom, which ultimately is what this case is about, and can I go back to the special case book at page 44 and take your Honour briefly to what the material reveals about Mr Wotton.

Starting at page 45, it sets out in paragraph 3 the description of the Palm Island matters, in paragraph 4 his role as a councillor, that is in the political environment, in paragraph 5 his liaison with – and can I indicate this, it relates to both before and after the commission of the offence.  So between 2004 and 2008 when Mr Wotton was sentenced to imprisonment he had a continuing involvement in these activities.  So he was:

liaising with State and Federal parliamentarians and candidates in relation to issues of concern to the Palm Island Aboriginal community relating to health services, amenities, education, employment opportunities and social justice problems affecting Indigenous Australians and particularly members of the Palm Island Aboriginal community.  The Plaintiff worked with Queensland Government representatives in relation to those concerns.

It sets up his involvement in community matters in paragraph 6 including lobbying and arranging for presentations to the Palm Island Council.  He established a suicide watch program.  He had been involved in a drug and alcohol rehabilitation centre and administering it.  He had written letters to the Townsville Bulletin concerning a State parliamentary election concerning matters that concerned the community.  He had, in paragraph 10, spoken to media representatives and at public meetings about Palm Island matters.  His speech in November 2006, which was after the crime that he had committed but before he was sentenced and while he was on bail:

His speech in November 2006 at the launch of the Errol Wyles Justice Foundation, a non‑for‑profit organisation that provides funding for legal services to indigenous Australians, was broadcast on ABC national ratio.

11.      The Plaintiff has played a leadership role in the Palm Island Aboriginal community, and in that role has participated in public discussions of issues relating to the criminal justice system as well as other general issues affecting the Palm Island Aboriginal community.

FRENCH CJ:   In his application for parole, or the application submitted on his behalf, at page 123 of the special case book in paragraph 12 there is a reference to him having:

committed himself since his arrest to the use of legal and political avenues (including the media) –

and then a whole number of examples of how he proposed to and, I suppose, had agitated the issues that concerned him about Palm Island.  In the Parole Board’s assessment I do not think there was any actual response to that aspect of the application, was there?

MR MERKEL:   No.  Your Honour, the only response was that there was no need to impose any special conditions of any kind.  The assessment report was entirely favourable to him and did not suggest that there was anything other than reliability, and Mr Wotton had understood his crime, there was no suggestion of absence of contrition or remorse, he wanted to continue his leadership role, and I will come to that in a moment.

KIEFEL J:   But even so, in the assessment report at page 115, line 40 Mr Wotton himself reported that his high risk situations are public meetings and the community on Palm Island.

MR MERKEL:   Your Honour, he said that but in his submission that was more tailored to ‑ ‑ ‑

KIEFEL J:   Well, he identified the strategies on page 126.  I think that was something to which Justice Crennan earlier referred, but he himself identified a strategy, namely, avoiding public gatherings on Palm Island relating to deaths in custody.

MR MERKEL:   Yes, your Honour.  I accept what your Honour says, but in the total context of all of these submissions, given that we are now in July 2010 and he had been actively involved in all these activities in the community without a problem from 2004 – prior to 2004 and without a problem between 2004 and 2008, we say that – and the assessment did not recommend any special conditions but rather, that the likelihood of any recidivism was remote.

One also needs to bear in mind that the events that occurred in 2004 were unprecedented in Australian history, had not occurred anywhere else before or after and were the subject of a Crime and Misconduct Commission report which said there – I will come to it – but made it very clear that the circumstances of that kind, your Honour, were unlikely to be ever replicated.  It was a one‑off situation.  But I accept the force of what your Honour says, that these were strategies put forward at his bail hearing but not suggested to warrant the special conditions, but the special conditions went much further than that. 

I really want – and I come to the end of this factual scenario – to look at the total impact of what was imposed on him.  If all he was told to do was to not attend public meetings, that might be one thing but the totality of the burden imposed on him by the special conditions in 132 is a blanket ban on pursuing the very activities which in the agreed facts he had pursued without blemish and on a basis that one would have thought would be admirable and essential to his rehabilitation and essential for the benefit of his community.

FRENCH CJ:   But the validity of 132 does not turn upon its particular impact on him, does it?  I can understand perhaps an argument in relation to conditions which are directed to him, but 132 is not to be assessed by reference to the accident of its application in a particular case or potential application in a particular case.

MR MERKEL: Your Honour, of course, there are two answers to that. Section 132 has to be assessed by reference to its practical operation, but ‑ ‑ ‑

FRENCH CJ:   Well, let us come back to the argument that it cannot be construed within constitutional limits.  That is really what you are saying.

MR MERKEL:   Yes, your Honour.  But what we say was the real sting in the observation in Ha and the way in which the Court approached the issue in Coleman v Power is you look at the effect of the law upon the facts to which it relates in its practical operations.  So you would come to it not in a vacuum.  If Mr Wotton did not have this prior leadership and political role, we would not be here.  It is because of the way in which 132 operates in respect of Mr Wotton that the practical operation issues arise and the question of proportionality and the nature and extent of the burden need to be considered.  So I accept that one needs to look at the law in a more general sense and at the mischief that it is directed towards, but how it operates in respect of Mr Wotton, we say, is a critical issue. 

These agreed facts which I wanted to take your Honours next to – I do not need to refer to it in detail, but the judge’s sentencing remarks at pages 85 to 87 and 95 to 98, all put Mr Wotton’s leadership role and the special circumstances that operated to some extent in mitigation as factors that lead to his early parole.  It was a six‑year sentence and he was eligible for parole after two years.  We have no quarrel with the principles in the Queensland submissions at 61 to 64 about the nature of parole, but what we do say is that the very reason for the two‑year parole limit being fixed was mostly encapsulated in those provisions in the sentencing remarks which recognise the importance of his leadership role and, of course, rehabilitation necessarily means restoration to the constructive role. 

So community protection, rehabilitation and mitigation in the present context do not in any way suggest, in relation to Mr Wotton, the need for any of the statutory or parole conditions.  In the parole assessment report –and I only give your Honours the page numbers, it is there – 111, 113, 115, 116 to 117, 117 to 118, but particularly at paragraph 8, the summary evaluation at page 117:

- Was able to demonstrate remorse and empathy
- Robust and relevant Relapse Plan
- Realistic, sustainable Release Plan
- Accepts responsibility
- Demonstrated insight into offending behaviour –

Recommendations and so forth.  So not a blemish apart from a minor breach not considered relevant.  Then 9.1:

Special conditions

- Participation in Elder’s Group or Men’s Support Group
- Be absolutely prohibited from gambling.

And place of residence.  Of course, that is in the light of the fact that the chief executive has supervision and control and can give instructions to Mr Wotton to deal with any particular situation that might arise.

HAYNE J:   Was one part of the robust and relevant relapse plan identified at 115, line 48, that he would not attend public meetings?

MR MERKEL:   Yes, your Honour.  It seems to take a step at a time and not attend public meetings, but a step at a time, your Honour.  It is one thing for him to say that may be a way of dealing with it, and then his solicitor modified that in his application, than to that for the – it becomes a mandatory parole condition, breach of which can lead to his warrant of arrest and gaoling, but public meetings is only one part of this.  If there were only public meetings in this case, we could go and modify that over time.  If this case were only about not getting a reward, that is not really what it is about.  What this case is entirely about is the combined operation, which I will come to, of the burden that Mr Wotton was subjected on 19 July 2010.  But can I just briefly take your Honours to what was put in his submissions at page 120 onwards by Mr Levitt.  It is a similar strategy, but specifically related to a death in custody.  But paragraph 12 at page 123, “since his arrest” he has resort “to the use of legal and political avenues” ‑ ‑ ‑

FRENCH CJ:   Well, that is the paragraph I just referred you to, I think.

MR MERKEL:   Yes, and I just wanted to take you through each of these steps because most of these would be a breach of his current statutory regime, your Honour.

FRENCH CJ:   That is apparent.  One can read that, Mr Merkel.  You can make your point without reading it all, I think.

MR MERKEL:   Well, I will move on, your Honour.  We say particularly paragraphs 24, 27 and 28.  We have handed up in our additional material the parliamentary committee report for August 2005 which records problems at Palm Island and Mr Wotton’s participation with the committee, which was recognised in the report.  We have also in our material handed up the June 2010 misconduct report and we say that that sets out the kind of unique set of events that led to 2004 and the unlikelihood of any replication, particularly given that the very grievance the community had and the trial judge recognised the community as justifiably having was finally addressed in June 2010 by the Crime and Misconduct Commission report.  Can I now go to the effect of the parole conditions as they were imposed upon Mr Wotton as from 19 July and unless changed, they would operate for four years?

FRENCH CJ:   There is nothing on the record to indicate, is there, whether these are, as it were, template conditions or the extent to which they are template conditions?

MR MERKEL:   No, your Honour.  The only thing we know is conditions (t), (u) and (v) do not find any counterpart in all of the other template conditions throughout Australia.  We have set those out in our – there is draft and there is model conditions and there is mandatory conditions and nothing of the kind set out in (t), (u) and (v) has been found by us and it is not suggested by Queensland that ‑ ‑ ‑

FRENCH CJ:   Well, (t) is obviously not, it is directed particularly to Palm Island.

MR MERKEL: Yes. Can I now look at how this was to operate. We rely on, at page 146, (b), (c), (d), (e), (f) and (g), as well as (i), (l), (m), (o) and (s) as all being capable of being seen to address all of the issues thrown up by the assessment board and Mr Levitt’s submissions. Now, can I come to (t), (u) and (v), and first we have section 132(1)(a) applying to Mr Wotton. So he cannot participate by reason of section 7 in an interview or give a recorded, written or oral statement. Let us look at (t) “not attend public meetings on Palm Island”. Condition (t) was the request for clarification at page 150 and given at page 152, and this is by the Parole Board at line 20 at 152:

a public meeting has the following characteristics:

1.      The meeting is open to members of the public (whether or not on payment of money, or some other price or condition of admission);

2.      The meeting relates to a matter of public interest or public concern, or for the advocacy of the candidature of a person for public office; and

3.      Attendance at public meetings normally follows some notice or advertisement convening the meeting;

4.      The meeting does not have to be in a public area.

It is also noted that, generally, the following would not be included in the meaning of public meeting:

·conversations with individuals, or with groups of people you may have in public areas;

·a sports related activity – such as a football match;

·cultural activities; or

·social and religious activities.

So it is not accurate.  Again, as with the explanatory memorandum, it is not an accurate representation of condition (t).  It is quite inaccurate because a public meeting could cover any of those three activities; sport, cultural, social or religious, but that is by the way.

What we are really saying is what is targeted, together with the other conditions which I will come to in a minute, is Mr Wotton making public, in ways that might be published, areas governed by and covered by the freedom of political communication.  Can I take your Honours to condition (u), because these are to be seen together and cumulatively:

be prohibited from speaking to and having any interaction whatsoever with the media -

Two things.  It is much wider and more draconian than 132(1)(a) because it means any interaction.  He could be photographed and smile and that is an interaction.  It is not even covered by 132.  There is no provision for dispensation, no executive approval and it is unrelated to any subject matter.

KIEFEL J:   Was not (u) removed?

MR MERKEL:   It was removed on the day the submissions were filed.  The Parole Board has been an active party in the litigation until the date for submissions and condition (u) was removed and the Parole Board submitted to the jurisdiction of the court and therefore its validity is not any longer the subject of any declaratory relief.  But what it is critical to understanding is, as with the explanatory memorandum of 132, what was this parole order really seeking to do and what was it doing? 

Condition (u), together with (t) and I will come to (v), are a combined scheme together with 132 to make sure that Mr Wotton does not agitate for anything in any public arena via any media anywhere in this country, the agitation of which your Honour spoke in Aid/Watch, which forms the heart if you want of political communication.  Why on earth ‑ ‑ ‑

KIEFEL J:   What do you get out of (v) in that connection?

MR MERKEL:   Something very important, your Honour.  An indirect or direct payment or benefit would cover the cost of being flown to appear on Q and A in Sydney. 

KIEFEL J:   But he could do it by telephone, could even Twitter.

MR MERKEL:   Well, why should he be restricted in appearing in Q and A in Sydney, your Honour?  Why should he have to pay, unlike anyone else, no doubt, his own fare if he were flown to Townsville to appear in Townsville at a public meeting conducted through the media who wanted him to go there?  It is so important in this case to realise there is nothing in Mr Wotton’s history that suggests he was doing anything in his public life for any financial gain of any kind.  So why is condition (v) there?

KIEFEL J:   I really do not follow some of this, Mr Merkel, in this sense.  You seem to be on the edge of suggesting some ulterior purpose.

MR MERKEL:   No, your Honour.

KIEFEL J:   If you are not suggesting that I think it would be best to disclaim it, because the way in which you are speaking is redolent of some sort of purpose and contention which is other than completely bona fide.  At least from my perspective that is the way I am hearing you.

MR MERKEL:   Your Honour, I do not intend to do any more than say when you look at the combined operation of 132(t), (u) and (v) it has the intended effect of making sure that Mr Wotton does not engage in the political and public agitation that he had engaged in in his previous pastime, using the media or any other format and it closes every door.  When I say direct or indirect payment, given that there is no suggestion that he would have any payment other than ‑ ‑ ‑

KIEFEL J:   Well, frankly, and from my point of view, I think what you are saying is far too wide.  I think that is reading far too much into (t), (u) and (v) and I personally would be far more assisted if you limited yourself to the wording of the conditions and directed yourself to that.

MR MERKEL:   Yes, well, I have said what I would wish to say, your Honour.  I do not say any more than what effectively the combined burden on Mr Wotton and the combined burden on the media and Mr Wotton as an elector was a burden on his communication which was substantial and direct.  So we say that the interrelatedness – and again without dispensation in respect of conditions (u) and (v) constitute a direct and substantial burden on his freedom of political communication and that of the media which is in parallel and that of the other two groups that we had indicated.  So we say it is not an indirect and insubstantial burden.

We say it is not with respect to some other subject matter that the laws and conditions are addressed and we say there is nothing in the nature of this being only incidental or indirect.  We rely on those answers to the first Lange question to say that then one has to – whether one uses the words “compelling justification” or “close scrutiny” or it is more difficult to justify whether the conditions are reasonably appropriate and adapted to serve a legitimate end we say we are at that higher end of the test to be applied.

Can I now go to the second Lange question.  What we say is helpful in the present context was the way in which this was approached in Roach 233 CLR 162 at paragraph 85. In fact, we rely very much on paragraphs 83 to 87 in the plurality judgment in Roach which starts at page 198.  We say it is a helpful tool of analysis to ask, as your Honours did in Roach at 185, is the burden for a substantial reason: 

A reason will answer that description if it be reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government. 

We accept that and we also say that at the end of the paragraph:

What upon close scrutiny is disproportionate or arbitrary may not answer to the description reasonably appropriate and adapted for an end consistent or compatible with observance of the relevant constitutional restraint upon legislative power.

We also rely very much on your Honours’ analysis throughout paragraphs 83 to 87, but in particular at the bottom of paragraph 83 at 199, Mr Wotton was, on the day he was released, again eligible and he is enrolled as a voter so he is an elector, and your Honours observed:

the existence and exercise of the franchise reflects notions of citizenship and membership of the Australian federal body politic -

which this Court has recognised, an indispensable aspect of which or incident of which is the freedom of communication, not to be burdened by law that is disproportionate. 

We say a number of matters that make section 132 disproportionate in the sense discussed in the second Lange question.  We say it can be contrasted with other regimes and I mentioned Cunliffe.  There is a regime, I do not need to take your Honours to it, in Nilsen. It is the UK case at paragraph 22. The prison rules are set out about media interviews within a prison and there are invariably criteria – there is usually a criterion about subject matter and there is usually a criterion about relevant and irrelevant considerations. There may even be a criterion in the statutory regime as to the objectives to be pursued as we see in Part 2. All of that is absent in section 132.

We say it is also important, secondly, and that is in the context of a blanket ban subject to the chief executive’s discretion - secondly, we say there is no evidence as to the mischief at which section 132 is addressed. There is no evidence as to why any alternative means are inadequate and there is no evidence or no basis upon which this Court could be satisfied that less drastic means could have achieved all of the legitimate ends contended for by Queensland and that is a matter taken up expressly at Lange at page 568.  We have endeavoured to set out in detail and I will not repeat it, in our submissions, at paragraphs 59 to 60 and in our reply submissions at paragraphs 10, 11 and 12, the criticisms we make of the absence of any mischief sought to be identified. 

We would compare it with how this Court approached the electoral fraud issue in Rowe, and I will give your Honours the paragraph numbers - I do not need to take your Honours to it.  Your Honour Chief Justice French dealt with it at paragraphs 76 to 78.  Your Honours Justices Gummow and Bell dealt with at 164 and 166 to 167, and your Honour Justice Crennan dealt with it a little more indirectly at paragraph 384. 

The real point was the absence of evidence as to why the existing processes were not sufficient to deal with the prophylactic end sought to be achieved in respect of electoral fraud meant there was a not a substantial reason for the early closure of the rolls.  There is simply no suggestion in any of the material before this Court why the legislative regime I have taken you to in some detail is not a thoroughly adequate way of dealing with 132(1)(a) in prison, and there is no reason why ‑ ‑ ‑

FRENCH CJ: Because another way would be simply for the chief executive to have a set of internal guidelines for the exercise of his or discretion to ensure that in its exercise it was confined to the limits of section 132, properly construed by reference, inter alia, to the implied freedom on political communication.

MR MERKEL:   Your Honour, if there were evidence about guidelines that satisfied the criticisms we make ‑ ‑ ‑

FRENCH CJ: It does not depend upon the…..whether there are or not. I am just saying to you that section 132 is not inconsistent with the creation of such guidelines, is it?

MR MERKEL:   Yes, your Honour.

FRENCH CJ:   You cannot have the tail wagging the dog here.

MR MERKEL:   No.

FRENCH CJ:   We are looking at 132.

MR MERKEL:   I accept that, your Honour.  But, the question of guidelines would then raise the question of their legal efficacy.  In reality, the way this is dealt with in other jurisdictions ‑ ‑ ‑

FRENCH CJ:   A guideline which says you shall act within power and then sets out ways of achieving that does not raise an obvious problem.

MR MERKEL:   No.  Your Honour, the conditions in Nilsen – I should take your Honours to it because it really sets out exactly what your Honour is talking about.  Just as an example, Nilsen – it is on our list of authorities, your Honours – it is a decision of the European Court of Human Rights and it sets out the relevant regime which would be precisely what your Honour had described, save that the regime had legal effect - at page 9, paragraph 21, the Secretary may make rules – prison rules.  Paragraph 34 – the 1999 rules:

a prisoner shall not be permitted to communicate –

except as provided by the rules and then (2):

the Secretary of State may impose any restriction or condition either generally or in a particular case, upon the communications to be permitted between a prisoner and other persons if he considers the restriction or condition to be imposed –

(a)does not interfere with the convention rights of any person; or

(b)(i) is necessary on grounds specified in paragraph (3) below;

(ii) reliance on the grounds is compatible with the convention right to be interfered with -

One could restate that in terms of the Lange test.  Let us look at (3).  The grounds are:

(a) the interests of national security;

(b) the prevention, detection, investigation or prosecution of crime;

(c) the interests of public safety;

(d) securing or maintaining prison security . . . 

(e) the protection of health and morals;

(f) the protection of the reputation of others;

(g) maintaining the authority and impartiality of the judiciary; or

(h) the protection of the rights and freedoms of any persons.

Then there are standing orders at 24.

In order to ensure uniformity of practice throughout prisons, the Secretary of State also issues to prison governors, pursuant to his general powers and duties. . . management guidance or directives -

And, then SO5B:

dealt with communications between prisoners and other persons, is entitled “restrictions on general correspondence” -

and again there is a description of criteria of the kind that your Honour would no doubt find appropriate.  But these, your Honour, have legal efficacy and can be the subject of judicial review so that there is a process and a framework within which they are required to be observed.  Another example in New Zealand – we have mentioned this in one of our footnotes – regulations 108 and 109 set out a process by which this discretion is to be exercised.

GUMMOW J:   I think in answer to the Chief Justice you were saying, I thought, that this legislation can only be construed as wholly offensive to the constitutional constraint and that therefore there is no way it can be given any valid operation by application of section 9, for example, of the Interpretation Act.  Is that what it comes to, on one view of your case?

MR MERKEL:   Yes, your Honour.  We do not say that is the end of our case, but we do say, your Honour, that the fundamental reason why we reach that result – we will amplify on this after the adjournment – is that the discretion in (2)(d) does not save the section from constitutional invalidity, which is in a sense a focal point of much of the argument that is put against us.  But we do emphasise, your Honour, in relation to parolees, which is the issue we have raised, we accept severance in relation to prisoners ‑ ‑ ‑

GUMMOW J:   Yes, I understand that.

FRENCH CJ:   Yes, well, that might be a convenient moment.

MR MERKEL:   If your Honour pleases.

FRENCH CJ:   We will adjourn until 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

FRENCH CJ:   Yes, Mr Merkel.

MR MERKEL:   There are just two preliminary matters, your Honours.  We have tried to look, over the adjournment, at when a person on parole fell within the parameters of 132(1)(a).  It is clear on the 2000 Act that a person on parole was included.  It appears under the 1988 Act a person on parole was still a prisoner because under the definition that person was not discharged from custody.  We have not been able to find anything yet prior to 1988.  It does appear to us, subject to what our learned friend the Solicitor may find out on the same topic, that it has been within the enactment since at least 1988, but I think prior to that it may have taken a different form.

FRENCH CJ:   I think in 1959 there was a provision which appeared, on my quick reading of it, to apply to prisoners, not parolees.  Anyway, that is part of the history.

MR MERKEL:   Yes, thank you, your Honour.  Secondly, on the question of whether the approval under the parole order might be reviewable we have had a look, over the adjournment, more closely at Griffith University v Tang 221 CLR 99 at paragraph 88, but I do not need your Honours to go there. We can understand why a decision to grant or refuse to grant approval may be impliedly authorised by the enactment. We do not say it is altogether clear but if the enactment, being section 200, authorises the imposition of conditions and if conditions can be subject to an approval, then it may be within the first of the two criteria, and the second would apply because the approval does affect legal rights.

We are grateful to your Honour the Chief Justice for finding Hyland v Procunier.  That is, I think, the only instance that has emerged of any prohibition of this kind on a person who was on parole.  Before going to the question of the consent, we did want to just briefly address, which we have probably covered, the issue of incongruities.  We have set out in our principal submissions and also in our outline incongruities, but in our outline this morning – they are in paragraph 53 of our principle submissions and paragraph 9 of our outline, but I just wanted to briefly talk to the three incongruities we have set out in our outline.

The earlier submissions relate to the incongruity of people on remand, people who are entitled to vote because they are serving sentences under three years.  We have pointed out this morning the incongruity of someone in immigration detention.  Can I just give your Honours a reference to the New Zealand decision on that very subject matter, which is – again, I do not need to take your Honours there – Television New Zealand v Attorney General of New Zealand [2004] NZCA 229, a decision of the Court of Appeal, where a person in immigration detention was refused the right to have an interview.

The reasons were given at paragraph 21 and were found really basically not to have a person involved in controversy and were found to be untenable in the light of the protection.  The only reason that could have been put forward was one that was not, namely, that the immigration proceedings and the security certificate proceedings to which this person was subject were secret.  So the extent of a person in detention by operation of law rather than as a prisoner serving a criminal sentence adds to the incongruities. 

The three I wanted to particularly comment upon were the ones at paragraph 9 of the outline we handed up this morning.  The first is the one we have pointed out earlier about the absence of any ban on the content, merely on the – it is by proscribing a form or manner in which the information is provided.  We also say the indifference to prisoners in detention and on parole means that virtually all of the legitimate ends do not apply to persons on parole, yet the same criterion applies.  Thirdly, there is an indifference to prisoners who are electors and those who are not, and we cite the reference in Roach to the constitutional function of electors of which Mr Wotton is one.

Can I now move to the point that has been discussed considerably this morning which we say comes up in this context, and that is the issue of the approval of the chief executive. We say that the starting point is our submission that this is a direct and substantial, not an incidental, burden and section 132 is not directed to some other subject matter other than publication of the kind we have described. The then question is, is the section saved by the discretion reposed in the chief executive? There are two answers we give to that question.

The first is that the very requirement to obtain the approval is a burden in itself that is not reasonably and appropriately adapted in the terms of the second Lange question.  We put a number of reasons why that is so.  First, the only remedy available to challenge an approval is judicial review with all the limitations and difficulties that that gives rise to in respect of a discretion that is not required to be exercised under any specified objective criteria.

Secondly, and we say this is a matter of very considerable importance, there is no merits review such as there was in Cunliffe, and we will come to that in a moment.  Third, the very cost of proceedings and the time to be consumed by them makes the access to the courts for the benefit sought to be achieved unrealistic and disproportionate.  Fourth, that is particularly a problem in terms of a media timeline, particularly when the approval is sought for the initiation of the story rather than for the conclusion of the story or an issue that may already have been the subject of investigation.

Fifth, the issue of prisoner co‑operation, given there is no protection of confidentially such of the kind that there is privileged mail, means in practical terms a prisoner who wishes to co‑operate is providing or having the media provide relevant information concerning the subject matter of the interview without any confidentiality or use protection in respect of that information and insofar as a prisoner, whether a person on parole or not, is subject to numerous discretionary powers by the Parole Board, by the officer and by the chief executive in his custody he is, there is a considerable burden in expectation of a prisoner co‑operating without the protection of confidentiality as to use or disclosure to others. 

Sixth, we would say there and impracticability of expecting judicial review and the evidence has not borne out yet any instance of where it has occurred, and there is no reported decision we are aware nor is there any instance we are aware of where judicial review is seen as something easily achieved or likely to be a practical way of dealing with the matter.  Seventh, and we say very significantly, there is an absence of any legally enforceable or other policy criteria which would objectively support or give some confidence to challenging a decision.  So the grounds of review, even excepting reasons could be sought and given under the Judicial Review Act, are extremely difficult and make the practicability of review an even more unlikely prospect. 

Eighth, we say that the application is particularly burdensome in respect of a parolee because the legitimate ends said to support the justification for this approval is an appropriate adaptation as set out page 30 and 31 of the special case book.  That is the State of Queensland’s legitimate ends.  It is very difficult to see how any of them realistically should result in a parolee having to subject himself or herself to that burden. 

If you look at the legitimate ends, (a) good order and security, unrelated in any obvious sense to parolees; (b) safety and welfare, unrelated outside a prison context; (c) do not become media celebrities and benefit from their crimes, we say that is possibly applicable to a parolee but for reasons we have said earlier, one would expect a discretion for that to be tailored to the exigencies of the case; (d) do not jeopardise law enforcement investigations by disclosing information, well, that is hard to justify in view of the absence of any prohibition against content merely on means of disclosure; and (e) we just do not understand what that means.  So we say that whatever might be said about some basis for justification of the requirement to seek approval as a burden that is legitimate and appropriately adapted, we say it does not apply to parolees.

The last matter is that all of those factors that we have outlined have the muffling effect referred to by Justice Brennan in Davis or the chilling effect which has been referred to in Theophanous in the passages we have referred to in our reply submissions but also – and I refer your Honours also to paragraph 105 in Coleman v Power where Justice McHugh employed that concept in respect of the section there under consideration.  At paragraph 105 his Honour said:

The use of insulting words is a common enough technique in political discussion and debates. No doubt speakers and writers sometimes use them as weapons of intimidation. And whether insulting words are or are not used for the purpose of intimidation, fear of insult may have a chilling effect on political debate. However, as I have indicated, insults are a legitimate part of political discussion protected by the Constitution. An unqualified prohibition on their use cannot be justified as compatible ‑

and therefore the prohibition goes beyond that which would satisfy the second Lange question.  We say it is undeniable, whether it be called a muffling effect, a chilling effect or a disproportionate burden, it is undeniable, that the factors that we have sought to outline constitute that burden.  Lastly, we would say, and very significantly, the reposing of that discretion in the chief executive, subject to political direction of the Minister, is an inappropriate way of dealing with the question of approval.  It is not an independent decision‑maker, it is not a decision ‑ ‑ ‑

GUMMOW J:   Where do we find the provision for the political direction of the Minister?

MR MERKEL:   It is in section 263, your Honour, at page 187:

Subject to any direction of the Minister, the chief executive is responsible for––

(a)the security and management of all corrective services facilities; and

(b)the safe custody and welfare of all prisoners; and

(c)      the supervision of offenders in the community.

We say that makes it quite clear that that is a very unsafe repository, given the interest, the political interest of a minister in what information is published or not about prisoners and corrective services facilities and the chief executive’s obvious self‑interest in the same subject matter; self‑interest because that is the very area for which the chief executive is responsible under the Act.  Now, if your Honours accept ‑ ‑ ‑

GUMMOW J:   Is there anything in the Public Service Act 1996 (Qld) dealing with this question of ministerial direction? I would be surprised if there was not.

MR MERKEL:   I do not know the answer to that, your Honour.  We will try and have a look at that overnight.  We will have a look at that ‑ ‑ ‑

HAYNE J:   You would accept, I take it, the direction must be a lawful direction?

MR MERKEL:   Yes, of course a direction must be a lawful direction otherwise it would not be authorised by the statute.

HAYNE J:   In particular, it must meet any relevant constitutional limitation.

MR MERKEL:   We are about to come to that, your Honour.  To say a direction must meet any constitutional limitation is virtually saying no more than that every statute by every Parliament in Australia must meet every constitutional limitation otherwise it is invalid and therefore one construes the statutes to achieve that purpose.

HAYNE J:   Yes, one does.

MR MERKEL:  But we were about to come to the second aspect of this inquiry and ask how does one construe section 132(1)(d) to meet the constitutional requirement and we say that that is not so easily achieved. Bearing in mind that we are asking the second Lange question we would say that, for the reasons we have already addressed, we say that the burden is not reasonably and appropriately adapted because of section 132(2)d), however it might be construed because it is an inappropriate way for a discretion in a member of the Executive with an interest in the subject matter to be given the power to determine what can and cannot be published in terms of the freedom of political communication.

I have said enough on that.  I will come to the second aspect which is how does one construe these words down and this was the issue - I am grateful for your Honour the Chief Justice drawing our attention to it - it was the issue that your Honour and other members of the Federal Court considered in Evans v New South Wales and I will come to that in a moment. But I just want to stay with how does one construe section 132(2)(d) to meet the constitutional requirement of the second Lange question?  We say that the construction that would be required is that the chief executive must grant the approval unless satisfied that refusing it is reasonably and appropriately adapted to serve the legitimate end in a manner which is compatible with the maintenance of the system of representative and responsible government.

We say that is not a construction that compels a grant or if one wants the reverse side of the coin it compels a refusal if it does satisfy the second Lange question.  We say it is easy, of course, to say all discretions must be exercised conformably with constitutional requirements.  We will take your Honour to Shrimpton’s Case. 

That was an easy example of where powers under a statute had to be used for the purposes for which they were conferred.  But to look at the freedom of political communication and ask how does one construe this section to require the grant of an approval if the second Lange question is not answered in the negative, or to refuse a grant only if the second Lange question is answered in the affirmative, is giving the section an operation which the words just simply do not permit.  It is not simply resolved any more than many other construction sections are resolved by rewriting the section.

But we say that is essentially what is required here; a rewriting of this section, and that only adds emphasis to if this is the burden of the kind then, not just in this case, but in all cases, reposing a discretion of this kind without reference to objective criteria is enough to satisfy the second Lange test.  Well, it leaves the protected freedom as an indispensable incident of the representative democracy to which it is a means of providing an end for, subject to a very, very unreliable base and we say that the practical operation test would not sustain this kind of discretion reposed in this way as the protection afforded by the second limb of the Lange test.  Now, there are not a lot of cases that are of assistance ‑ ‑ ‑

KIEFEL J:   What is the practical operation test?

MR MERKEL:   Well, we say that one looks at how this requirement of approval or working practice ‑ ‑ ‑

KIEFEL J:   Where does that come from?

MR MERKEL:   We would say the Ha principle which we apply to the facts to the circumstances of the kind of case we are dealing with here, which this Court has regularly acted upon, takes it out of the theoretical realm and says in practice how would this operate and I have given your Honours nine factors that we say in practical terms make this a very inadequate protection indeed of the constitutionally protected freedom, particularly given the anomalies and the indifference to prisoners and parolees, but the same process applying to each.  I mentioned Evans v New South Wales ‑ ‑ ‑

FRENCH CJ:   That was a reading on the basis of the principle of legality rather than a constitutional ‑ ‑ ‑

MR MERKEL:   Yes, your Honour, and the two words that the Court was concerned with was “conduct” which may be the subject of a direction by an authorised person which causes annoyance, which your Honours could not read down because there was an absence of objective ‑ ‑ ‑

FRENCH CJ:   That was the regulation.

MR MERKEL:   Sorry, the regulation.

FRENCH CJ:   That was a question of how wide did the regulation‑making power run, was it not?

MR MERKEL:   I accept that, your Honour, but a different approach was taken to the term “inconvenience” which was able to be read down and the Court struggled with this very issue on the word “insult” in Coleman v Power.  Is it to be read down or is it to be read to apply to particular circumstances?  We say that this discretion simply does not have that capacity but we do say there is some assistance from the cases in this area.

We would like to first go to Cunliffe to contrast the situation with which we are concerned here.  I accept Cunliffe was decided before Lange but on this question of discretion there was considerable discussion of why the discretion in that case did save the relevant provisions from offending the freedom of political communication.  I think I am right in saying that none of the judgments would support this discretion because the reasons advanced for upholding the discretion in that case were, at the very minimum, a right to merits review as well as judicial review.

Can I start at the starting point of Cunliffe because that was clearly an indirect and incidental burden?  The statutory scheme had a registration board which would register a migration agent – and I will come to the effect of the scheme in a moment - but there were objective criteria required to be satisfied and a very clearly specified statutory scheme and the burden came about incidentally because of the prohibition on persons other than migration agents providing assistance – migration assistance – and that was found to be a burden, so even in the context of an indirect burden their Honours had to consider was the process of decision making by the Board one that would satisfy what is now known as the second leg of the Lange test.

The system for registration is set out – I think it is described best in Justice Toohey’s judgment.  His Honour sets out the relevant statutory provisions at pages 367 to 368 but his Honour describes the process at the bottom of 369 in respect of the Migration Agents Registration Board.  I have not been able to determine from the report, and I may have missed it, but it does appear the Board is an independent body in the sense that it is not like the chief executive responsible for administering general functions under the Act.  At the top of 370 his Honour sets out the Board’s functions which include “dealing with registration applications”:

Individuals may be registered as migration agents.  In certain circumstances, generally speaking where the character or the qualifications of an applicant are at issue, the Secretary must refer a registration application to the Board.  But otherwise the Secretary deals with it himself or herself and, save in certain cases, must register –

We contrast that with the present regime:

Likewise, the Board, to whom an application is referred by the Secretary, must grant the application to a suitable applicant, subject to the disqualifications listed in s. 114V.  A Code of Conduct for migration agents has been prescribed by regulation pursuant to s.114ZR(75).  It imposes standards of conduct relating to such matters as false advertising, confidentiality and vexatious or grossly unfounded applications.  Failure to comply with the Code of Conduct may result in deregistration –

So one has a statutory scheme with a criterion of, in effect, suitability which is able to be objectively ascertained and dealt with.  Chief Justice Mason also describes the system at the bottom of pages 291 to 292 and sets out in a little more detail some of the criteria.  At the bottom of 291:

where the Secretary is satisfied that there is evidence that “an individual related by employment to the applicant is not a person of integrity” or, where the Board gives the Secretary a notice that he or she is not to deal with the application (s. 114U).  The Secretary is also required to refer to the Board an application by an applicant who is the subject of investigation by the Department by reason of allegations of fraud or corruption . . . or is not the holder of a prescribed qualification and who, in the opinion of the Secretary, does not have a sound knowledge of migration procedure (s. 114T(1)(f)). 

The Board must register the applicant if it is satisfied that the applicant is a suitable person to be a registered agent (s. 114V) but must not register the applicant if the Board is satisfied that the applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance or the applicant is related by employment to such a person (s. 114V(2)).

The Board has a discretion –

So that was a very indirect application but it was found to be a burden.  Can I go to what their Honours said in respect of the discretion?  Can I go firstly to the Chief Justice at 302 to 304?  His Honour at the bottom of 302 talks about the related obligation and says it is not disproportionate.  Then his Honour goes on to say:

the provisions are so drawn –

This is at 303 -

that the Board is entitled, in the exercise of its discretion, to refuse registration to an applicant if the applicant does not satisfy the Board that he or she is “a suitable person . . . The existence of this discretion presents something of a problem.  It might enable the Board to refuse registration to a lawyer –

His Honour found invalidity because a lawyer was already to be regarded as a proper person.  Then, his Honour, in the middle of the page, says:

The question is whether legal remedies are available which will effectively provide protection against an abuse of power by the Board.  The deficiencies associated with relief by way of prerogative writ, certainly so long as a decision‑maker is not obliged by the general law to give reasons for a decision, are well known.  However, a refusal of registration is subject to a right of appeal to the Administrative Appeals Tribunal (s. 114ZH) and to judicial review in accordance with the Administrative Decisions (Judicial Review) Act 1977 (Cth) . . . The availability of these procedures will ultimately ensure that decisions of the Board will conform to constitutional requirements and limitations -

which is really the second leg of the Lange test.  His Honour made findings at 304 about why the means in respect of legal practitioners even with those remedies were inadequate.  I will not trouble your Honours with that because his Honour was in dissent on Part 2A being invalid, but he did say at about point 4:

The scope and extent of the alleged mischief has not been established or identified here by these means or by legislative findings.

Now, the mischief sought to be addressed by this Act was clearly identified and there was nothing abstract about it.  But why lawyers should be covered by the same regime was something his Honour was not satisfied was identified.  But can I move on to Justice Brennan at 330 to 331 – similar analysis at the middle of 330.

The power created by Div. 3 of Pt 2A for registration as a migration agent is discretionary, but the exercise of the discretion is controlled.  If the application is dealt with by the Secretary . . . the applicant must be registered (s. 114X) unless the applicant is disqualified for one of the reasons stated in s. 114v(1).  If the application is dealt by the. . . Board, an applicant who is not disqualified must be registered if, having regard to the matters referred to in s. 114W, the Board is satisfied that the applicant is a “suitable person to be a registered agent”:  s 114Y.  If an application is refused, written reasons for the decision must be given -

That is provided as part of the statutory scheme. 

As s.114T prescribes adverse factors which the Board must consider (s. 114W(c)), being matters relevant to suitability for registration, and as the purpose of the Board’s discretionary power is simply to determine whether the applicant is suitable “to be a registered agent”, the power cannot be exercised, in theory or in practice, for any purpose save the protection of entrance applicants who might wish to engage the applicant’s services.

Then over the page at 331 his Honour said:

So long as s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) removes any obstacles to discovery of the ground on which a discretionary power is exercised, an exercise of the power for a purpose foreign to the purpose for which it is conferred cannot go undetected.

A purpose in this context is a much clearer subject matter than a purpose in terms of section 132 –

Before the enactment of the Administrative Appeals Tribunal Act 1975 (Cth) and the Administrative Decisions (Judicial Review) Act, wide discretionary powers to grant a licence were not effectively amenable to judicial review and were thus without adequate control.  This Court, concerned to preserve the freedom guaranteed by s 92 as it was perceived before Cole v Whitfield, was constrained to invalidate laws that in practice might authorize a discretionary power to be exercised so as to infringe the freedom guaranteed by s 92.  But the power to register migration agents is amenable to control, not only by judicial review but by appeal to the Administrative Appeals Tribunal:  s 114ZH.  There is ample machinery to ensure that the registration discretion is exercised for the legitimate purpose for which it was conferred.  It cannot be exercised for the improper purpose of controlling communications –

and so forth.  Justice Toohey dealt with this subject similarly at page 381.  At the bottom of the page his Honour just said, last five lines:

the jurisdiction of the Administrative Appeals Tribunal to review a decision made by the Board (s 114ZH), coupled with the existence of judicial review to ensure that a power is exercised in goof faith . . . provides a sufficient answer to the challenge –

A similar approach was taken by Justice McHugh at page 397:

To prohibit persons from giving immigration assistance unless they register as agents is not a measure that is disproportionate to the need to protect entrance applicants from exploitation or incompetence.  Honest and competent persons will have no difficulty in obtaining registration.  The criteria for registration are largely objective.  In so far as an application for registration may fail on subjective grounds of judgment, the applicant has a right of review by the Administrative Appeals Tribunal.

We say that obviously is the more fundamental right of the two.  So Cunliffe offers a very good example as to why this Court should not be satisfied that the discretion reposed in the chief executive is an adequate one.  The section 92 cases which were referred to were not prepared to construe the legislation so as to have to make that decision conformable to section 92 because the complexity of such a construction was really no less than that in respect of the construction in the present case. 

Can I take your Honours next to Davis 166 CLR 79 which, by way of analogy, deals with a similar point, albeit in the context of the ultra vires question. Your Honours will be familiar with this case, but the question with which we are concerned here is the width of the power to use expressions that were in common parlance. Section 22 is set out at page 89 of the judgment of Chief Justice Mason, Justices Deane and Gaudron. It starts off:

Subject to sub‑section (4), a person who, without the consent in writing of the Authority –

Then uses names and so forth.

HAYNE J:   What exactly is the proposition that you say you take out of Davis and would have us adopt?

MR MERKEL:   The proposition, your Honour, is that on the proportionality test which was employed there on the basis of whether the Act was within legislative power, a discretion analogous to that in the present case was found not to satisfy that test.  I understand that the second Lange question proposes a slightly different test, but it is a proportionality test and we say it is helpful.  Given the absence of any support in this area of discourse for the position put against us that a discretion of this kind is a sufficient protection, we say that these cases are helpful guidance and point in the other direction.  Different context, but we say that the analogy is not one that is inappropriate.

KIEFEL J:   I understand what you say about there being no stated criteria, but you are approaching the matter as if the question for the chief executive is completely at large, but that can be tested by the judicial review process itself, can it not, because if you test a request of the chief executive, it is tested by whatever is relevant in the context and scope of the Act in which the chief executive is operating, the position of the prisoner, the freedom?  I mean, you gain your criteria by all of these processes, do you not?  It is not at large.

MR MERKEL:   No statutory discretion is at large, your Honour. 

KIEFEL J:   No.

MR MERKEL:   There can never be such a discretion.

KIEFEL J:   Well, I do not really understand ‑ ‑ ‑

MR MERKEL:   Well, actually there was in Shrimpton.

KIEFEL J:   But why is not the judicial review – why is not the process that the Act provides for grant or withholding of approval with a judicial review process following then?  Why is that either very burdensome or even if it is burdensome, why is it not capable of passing the test of being reasonably and appropriately adapted or proportionate to the objects which can be ascertained within the Act itself in the same way that relevant considerations are obtained?

MR MERKEL:   Your Honour, I suppose I might be repeating myself, or will be to some extent, but what we do say is that, starting from the premise of the nature of the burden, we say – and more difficult to justify, starting from the premise that any comparable provisions in this Act or elsewhere state objective criteria to give judicial review a practical and potentially viable operation, the context in this Act and the mere possibility of judicial review is not reasonably an appropriately adapted way of dealing with this particular burden being as direct as it is and as direct as it is intended to be.

KIEFEL J: I am not asking you to repeat your submissions this morning, but your essential point, I think, is that you cannot ascertain what the objects or ends of section 132 is. That is essentially it, is it not?

MR MERKEL:   As a starting point for judicial review, the difficulty of doing so and the uncertainty surrounding it created by the regime makes judicial review a seriously challenging hurdle. 

KIEFEL J:   And what I am saying to you is, given the position of the Court undertaking a judicial review exercise, are you saying that the Court would not be able to ascertain what the objects and purposes of that section are, having regard to its context and the scope of the Act?

MR MERKEL:   With great difficulty on which minds would differ, your Honour, with respect, because of the way in which the section is written by reference to a mode of communication rather than its content.  It is extremely difficult to identify what its purpose is in terms of the freedom of political communication in a relevant way.  We have in mind Shrimpton, your Honour, which is not unhelpful in this sense, because Shrimpton concerned a broad discretion, so broad some of the judges found that it was necessarily bad. That is in 69 CLR 613.

GUMMOW J:   Sir Owen Dixon at 629 may be the best point.

MR MERKEL:   That is what we were going to go to, your Honour.  Some of the judges found that the condition was hopelessly bad, I think it was Justice Williams and Justice Rich, because of the absence of guidance.  Justice Dixon, at 629, looked at least at some of the regulations because there was a broad consent set out in the first paragraph of the headnote.  It is a bit like the present section:

a person shall not, without the consent in writing of the Treasurer, purchase any land (reg 6(1)) and that, where application is made to the Treasurer for his consent, he may, in his absolute discretion, grant his consent, either unconditionally or subject to such conditions as he thinks fit, or refuse his consent (reg 9(2)).

Then his Honour at 629 said:

Particular provisions make it clear that the Regulations regard certain considerations as material –

and his Honour there sets them out:

These provisions contain indications of matters to which the Regulations are directed, but the matters so indicated are not necessarily exhaustive.  No doubt the nature of the subject and the difficulty of defining, in advance, the considerations upon which the Treasurer should proceed in giving or withholding his consent led to the adoption of the mode of control expressed by a general prohibition subject to a discretion to consent.  But, where the power under which subordinate legislation must be supported is limited, an attempt to regulate by giving an absolute discretion, without stating the matters to be considered or the purpose to which it is to be directed, provokes challenge.

We say that is a very unsafe protection to the freedom, given its fundamental role –

Notwithstanding, however, what at first sight may seem to be the extreme to which the expressions of reg 9(2) go –

no different really in the present case –

I do not think it should be interpreted as giving to the Treasurer a power to withhold his consent for any reason, however extraneous to the purposes of the Regulations, or to attach any condition, however irrelevant.

That was about a challenge to using a power for a purpose for which it was not conferred.  We say that at least his Honour there saw features in that statutory scheme which are absent in ours and that is a ‑ ‑ ‑

HAYNE J:   I would have thought 629 to 630 was also not unimportant, but do not stay to read it to us, Mr Merkel.  We can read.

MR MERKEL:   We have mentioned Davis.  We will not take your Honours to it, but we do rely on paragraphs 102 to 108 of Justice Finn’s analysis in an analogous area in Bennett where his Honour considers a similar discretion under the Public Service Act.  After his Honour’s decision, the Act was amended to provide an objective criterion about the disclosure of the information having to be detrimental to the effective workings of government – I said Davis, I mean Bennett, your Honour.  That change is discussed in a decision – and I will just give your Honours the citation – R v Tjanara Goreng‑Goreng [2008] ACTSC 74. So we say that ‑ ‑ ‑

GUMMOW J:   What do you say about the Commonwealth’s response to reliance on Bennett at paragraph 36?

MR MERKEL:   We say, your Honour, that we do not need to use the word “unbridled discretions” in the context of what we are talking about, your Honour, in the present case, but we say that the discretionary powers, even those left at large, suffer from the same vice even though we do have a judicial review process of the kind available that is in the Judicial Review Act.  We do say that what his Honour was really saying, consistently with Davis, is that a discretion at large in the sense that the absence of criteria make it very difficult to challenge in a practical sense is not appropriate and adapted to deal with a burden which is direct and substantial on the freedom of political communication.

GUMMOW J:   If you look at footnote 53, the last citation there in Commonwealth’s submissions, to Thomas v Chicago Park, it indicates in the United States they take what one might call a fairly drastic view of so‑called unbridled discretions.  They do not seem to have a Shrimpton approach from 629 and 630 of Shrimpton.

HAYNE J:   Coupled with the notion that you could end up with statutory requirements that are void for vagueness.

MR MERKEL:   We would, with respect, say that the hostility to that in the United States should not be matched by a friendship to this as an appropriate means to deal with the freedom of political speech in Australia.

GUMMOW J:   There is a certain attraction of absolute propositions in their jurisprudence.  Cases on the First Amendment, therefore, continue to surprise.  They do not have any second limb of Lange to develop as we have.

MR MERKEL:   No, I appreciate that and that is why we are here engaged in a second Lange question exercise.  But we do say, with respect, that we had hoped that the deficiencies that we had put forward were sufficient to demonstrate why this does not meet the appropriate point.  But the real point ‑ ‑ ‑

FRENCH CJ:   Incidentally, the chief executive’s discretion is not exercised in a vacuum.  I mean, there is a network of requirements and constraints, is there not, pursuant to such provisions as the Public Sector Ethics Act 1994 (Qld), codes of conduct and the like. I do not know whether there is anything that is relevant to the proposition you put a chief executive act in to, as it were, protect his own posterior in the exercise of the discretion, but one would imagine that that sort of thing might be relevant to an ethics code of conduct.

MR MERKEL:   It might, your Honour, but just the very conflict of interest and duty there raised, if the article comes to be critical of his own management, of course, he probably should be delegating the discretion to someone else.  But the legal minefield that is created in all this we just say has no support in any of the cases in this area of jurisprudence.  What our learned friends are contending for is the first time this would be accepted as an appropriate adaptation for protection of a fundamental constitutional right.  It was not accepted in the section 92 cases.  It was not accepted in terms of proportionality in Davis.  In Cunliffe, I have taken your Honours to a similar question to show how far removed the present case is from it.

Of course, every decision is judicially reviewable under our hierarchy, but that, we say, does not answer the second Lange question in the affirmative.  We say there is no support in the comparative jurisprudence for this way of resolving protection of a constitutional right or a constitutional freedom of this kind.  We have set out our submissions as to severance in respect of parolees in terms of section 9 and section 32A of the Acts Interpretation Act and have no difficulty in parolees being excluded by reason of the operation of those provisions from 132(1)(a). 

We have set out in the special case book at page 11 the questions that we say should be answered and we say each of them should be answered

affirmatively.  The questions at page 11 are at page 54 of the special case book, although we have indicated that (u) has dropped out of the inquiry in the present context.  We also seek the relief set out in paragraph 82 of our principal submissions but without seeking any relief in respect of condition (u).

FRENCH CJ:   The questions as presently framed do not seem to encompass the possibility of section 200 being construed in such a way as not to authorise the conditions you challenge.

MR MERKEL:   Yes.  Can we have a look at that overnight, your Honour?  We have suggested the answer to it in the submission I have read but we will talk to our learned friend about that overnight, if we may.

FRENCH CJ:   Yes.

MR MERKEL:   They are the submissions we put on behalf of the plaintiff.  If the Court pleases.

FRENCH CJ:   Thank you, Mr Merkel.  Yes, Mr Solicitor.

MR SOFRONOFF:   Your Honours have our outline of oral argument.  Could I take your Honours then to the statute without, I promise, wasting any time upon provisions that your Honours have already been invited to look at in depth.  My purpose in taking your Honours to the statute is in order to eliminate the context within which the impugned provision and the conditions ought to be judged.  If your Honours were to go to section 3 of the Act you will see in section 3(1) the express purpose of the system set up by the statute, the corrective services system.  It is “community safety and crime prevention” through three things:

humane containment, supervision and rehabilitation –

Containment, of course, has an element of pure punishment and I do not say anything about that but one might infer that the supervision and rehabilitation of offenders which is envisaged by section 3(1) is to be exercised against prisoners primarily in containment.  Subsection (2) is important because it recognises and asserts that the Act seeks to ensure that only those human entitlements that must necessarily be diminished are to be diminished by reason of a person becoming a prisoner.

If your Honours then go to section 6 - your Honours have seen that – and it speaks in terms of “A person sentenced to a period of imprisonment”. 

As your Honours will see later the definition of “prisoner” is set out by reference to a person serving a sentence rather than a person who is incarcerated. Section 7(4) then provides that:

the person remains in the chief executive’s custody until discharged even if –

lawfully in another person’s custody – it might be a transfer, it might be the court’s custody, it might be a medical facility, and:

even if the person is lawfully outside a corrective services facility.

That might not just be parole, it might be on leave, but:

the person remains in the chief executive’s custody until discharged –

The term “discharge” is defined in terms of “unconditionally release the person from lawful custody”, that is to say, the finalisation of the sentence of imprisonment itself.

If your Honours would then go to section 20, we come to the series of provisions which subject the prisoner to restraints upon his or her liberties.  First, a prisoner is subject to lawful directions of a corrective services officer and your Honours will see that the power of such an officer to give a direction is constrained by express criteria.  Those criteria, particularly those in (a) and (b), are reflected in that and other language in other parts of the Act.  Your Honours will notice that the discretion reposed in junior officers, that is to say, corrective services officers as opposed to the chief executive, are I think always – I think I am right in saying always – constrained by express criteria, whereas the discretion that is conferred upon the chief executive by many provisions is sometimes constrained by express criteria but often is not. 

Section 20 to, I think, 27 apply to prisoners who are incarcerated but by the definition of prisoner not to parolees. A prisoner while incarcerated, section 21, might be compelled to submit to a medical examination. Section 26 contains a minor impediment to a prisoner wishing to marry. The prisoner must first give written notice of that intention and then there is something said about the terms on which a marriage can occur within a facility. The reference to a person in the chief executive’s custody would fit a parolee because, as your Honours have seen, section 7 (4) has provided that except when a person:

is lawfully in another person’s custody, the person remains in the chief executive’s custody until discharged, even if the person is lawfully outside a corrective services facility.

So even a parolee must give that notice.  That provision would be justified –I do not mean legally justified, I mean as a matter of policy – justified only by reference to the fact that the welfare of a prisoner is one of the matters to which the chief executive must have regard in the supervision of that prisoner.  Section 27 imposes the restraint that a person in custody, including a parolee, must obtain written permission before changing a name, the reasons for that must be obvious. 

Section 28, in respect of incarcerated prisoners, prohibits the carrying on a business, the reasons for that are obvious.  Sections 28A, 28B and following relate to restraints upon incarcerated prisoners dealing their artwork and your Honours might well imagine that the reason that is there is because in some cases artwork might be very valuable and therefore a person in the possession of something that is very valuable who is in the position either to give it or to sell it and get cash could give rise to, by doing that, all kinds of disciplinary problems, the most obvious one being stood over, the thing of value, or the cash resulting from that thing of value being extorted by threats or other means.  So there is a restraint upon something like that in relation to incarcerated prisoners, not in relation to parolees.

Section 29 relates to a female prisoner giving birth or having custody of a child while in prison.  I will not dwell on the detail of that except to observe that that is a continuing set of express restraints upon prisoners, both those incarcerated and, where appropriate, those who are not.  Section 33 applies to incarcerated prisoners and subjects them to a liability to being searched by a corrective services officer.  This is an example of a discretion reposed in the chief executive officer who may order such a search and which does not refer to any express criteria to limit the exercise of that power.  But subsection (2), which confers a power upon a corrective services officer to conduct a general search, does expressly limit that power by reference to criteria. 

There are other provisions, 35 and 36, which relate to searches that we need not dwell on.  Section 39 relates to body searches.  When one comes to communications, which is the broad subject of the present case, sections 44 and 45 limit the right of a prisoner who is incarcerated to correspond by mail.  Section 45(1), such mail is subject to censorship except subsection (2) if it is mail that is privileged mail.  Privileged mail is dealt with by the regulations, relevantly – your Honours need not look at it now – but regulation 18 prescribes a number of addressees as persons for the purposes of privileged mail, the Minister, a member of the Legislative Assembly, the ombudsman and people of that kind.  Phone calls, section 50, may only be made to approved persons, but even then subsection (3):

The chief executive may decide the length and frequency of phone calls –

That discretion is not expressly constrained by criteria.  Subsection (4), no right to receive phone calls, you can only make them.  Section 52, prisoner communication can be recorded and monitored.  If your Honours would then go to section 113.  This part of Chapter 3 only applies to incarcerated prisoners.  It authorises the creation of a system of discipline by regulation which does indeed exist under the regulations.  Section 123:

A regulation may prescribe a thing to be a prohibited thing.

Then prisoners cannot deal with it or possess it.  We then come section 124 which contains offences that might be committed by prisoners.  We can see that 124 deals with offences apart from the disciplinary system, which was the subject of Part 1 beginning at 113.  Section 124 gives a strong indication of the matters to which a chief executive or a corrective services officer would have regard when exercising any particular discretion.  They can be summarised as the welfare of prisoners, the safety of persons within the prison, prisoners and others, discipline within the prison towards that end and, of course, the rehabilitative aspects and so on.  So one can see subparagraph (d) is an essential means of maintaining discipline within the prison because it makes it an offence for a prisoner to:

organise, attempt to organise or take part in any opposition to authority under this Act –

Now, that applies to incarcerated prisoners.  This section, this Part does not apply to parolees by reason of the definition of “prisoner” in the Schedule.  I will come back to that insofar as it bears upon the question that your Honours have been asked to consider after I have taken your Honours through the rest of the relevant provisions.

There are then a set of general offences in Part 3 and they are directed at persons who are not prisoners who are incarcerated. Section 125 makes that point. So that for the purposes of Part 3, the term “person”, who is the person that commits the offence, will include a parolee; helping a prisoner at large, obstructing a staff member, taking prohibitive things into a prison and matters of that kind. Section 129:

A person must not, without the chief executive’s approval –

(a)remove, or attempt to remove, anything from a corrective services facility; or

. . . 

(c)take, or attempt to take, anything from a prisoner –

The things are not defined and the chief executive’s approval, which furnishes an excuse for that conduct, is not constrained by express criteria. So even a letter would fall within that. Section 132, the provision at the heart of this case, I will come back to that, your Honours. Section 133:

A person must not, without the chief executive’s approval –

(a)take, or attempt to take, information from a record kept under this Act; or –

The discretion to grant or withhold approval is not the subject of express criteria.  Section 138 empowers a corrective services officer to seize anything found in a corrective services facility and that power is constrained by express criteria.  It is a more junior officer than the chief executive.  Section 143 confers a power to use reasonable force to compel compliance with an order given or applying to a prisoner.  That continues to apply to a parolee, that is to say, whereas the rest of us are liable to be the objects of the use of reasonable force by police in the context of offences.  A prisoner is liable to be the object of the use of force in the context of the discipline of the prison itself.  Lethal force is 146, but nothing turns on that.  We then come to Chapter 5, which deals with parole.  Section 179(2)(b) has the effect that a person who wishes to apply for parole must have reached his or her parole eligibility date.  And 180 provides that:

A prisoner may apply for a parole order if the prisoner has reached the prisoner’s parole eligibility date –

The thing to notice about section 180 and, indeed, Chapter 5, is that it is a voluntary matter.  The prisoner – and it has not been unheard of for prisoners to choose to remain in prison to serve out their sentence under incarceration rather than subject themselves to what they might regard as the humiliation of constraints while otherwise at liberty.  So you do not have to apply for parole, but you may apply for parole.  Section 194 then provides the means by which the parole order operates to release the prisoner from incarceration.  Section 200 confers a power to include conditions within such a parole order and the mandatory conditions include notably 200(1)(a):

(a)to be under the chief executive’s supervision –

(i)until the end of the prisoner’s period of imprisonment; or . . . 

(b)to carry out the chief executive’s lawful instructions -

and certain other matters and (2), general conditions, that is to say a general power to impose conditions so long as they satisfy the requirement that:

the Board reasonably considers necessary –

for two purposes that you can see in subsection (2).  Section 201(2) is important because one power that the chief executive has expressly is to:

suspend a parole order if the chief executive reasonably believes the prisoner . . . 

(b)poses a serious and immediate risk of harm to someone else; or

(c)poses an unacceptable risk of committing an offence -

Then, finally, in this connection with parole and importantly, 214 and 215:

A prisoner released on parole is taken to be still serving the sentence imposed on the prisoner.

Consequently, the consequence of parole is that the prisoner remains a prisoner but certain things are removed.  It is not the case as one might infer, having heard some of the submissions on behalf of the plaintiff, that as a parolee the plaintiff has had some burdens imposed upon him, rather some burdens have been lifted from him by reason of his application and the successful application for parole.

A prisoner is taken to have served the prisoner’s period of imprisonment if the prisoner’s parole order expires without being cancelled –

Could I ask your Honours to look at one further provision and that is contained in Part 12A which begins with section 319A.  It is not necessary to look at them in any detail but what they do is they put a prisoner, including a parolee, in a special position with respect to litigation against the State or against entities associated with the State in connection with the incarceration.  What these provisions do is permit the prisoner to, subject to certain conditions, sue or to make complaints to the Anti‑Discrimination Commission but any proceeds of such a proceeding, or any settlement of such a proceeding, are first held in trust to defray any legitimate claims that victims might have against the prisoner and that applies to parolees after parole as well as prisoners.

Could I ask your Honours then to go back to section 124 which I wish to use as an example for the purpose of making some submissions about section 130.  Your Honours have seen that section 124(d) makes it an offence for a prisoner, while incarcerated, to:

organise, attempt to organise or take part in any opposition to authority under this Act ‑ ‑ ‑

Thus, if that happens, an offence has been committed and consequences will flow, not only in terms of criminal law but also in terms of discipline, that is to say the consequences to the prisoner on a day‑to‑day basis might be severe. 

But the chief executive in charge of the prison has other tools at his disposal to attempt to prevent a person organising or attempting to organise defiance to authority.  They include, of course, the prevention of conduct by direction, which itself is subject to disciplinary proceedings if disobeyed, section 20.  There is the power of search, of course, section 33, and ultimately there is the power in the case of certain prisoners, certain highly classified prisoners, to confine a prisoner within the maximum security part of the prison. 

So long before there has been any attempt to organise opposition to authority, the prison authorities, the chief executive can take steps to prevent that happening.  The possibility that free access to news media may give rise to disciplinary problems of that kind are well established and understood and the best place to look at those things articulated is in Simms, R v Secretary of State for the Home Department, Ex parteSimms [2000] 2 AC 115. Some convicted prisoners were agitating for the vindication of their innocence by recourse to journalists who were prepared to write about the subject. The question arose as to whether the restraints upon that were valid or not valid, whether the restraints upon access to the journalists were valid or not valid in the context of deciding that case under provisions that your Honours would not be concerned with.

GUMMOW J:   Valid by reason of some absence of statutory power?

FRENCH CJ:   This is pre-Human Rights Act, I think.

MR SOFRONOFF:   Yes, your Honour, it was by reason of the – excuse me, your Honour.  I should know this and I apologise, your Honour. 

FRENCH CJ:   Well, the relevant provision was read down by reference to the principle of legality, was it not?

MR SOFRONOFF:   There was a policy in place and the question was whether the policy was valid.

FRENCH CJ:   Yes, the question was authorised and the question was what was the scope of the statutory authority.

MR SOFRONOFF:   Yes, quite.  For present purposes what is interesting are two things.  The first is the problems that were identified as being sought to be addressed by the policy of restraint and that first appears at page 129 at letter E to just above letter H, if I could invite your Honours to read that. 

GUMMOW J:   Page 129?

MR SOFRONOFF:   Page 129 E to H.  Then at the foot of page 138 at letter H a reference to Pell v Procunier:

There was in that case evidence that uncontrolled media access and intrusion had led to a serious disturbance.

Then the actual policy, relevantly, is set out on page 140 at letter G and it is, in effect, that is to say in substance, the same as the policy manifested by section 130, that is to say, visits by journalists to interview inmates require the approval of the governor first obtained.  Then at page 141, letter E, the fourth line:

In view of the great variety of situations which may have to be covered it is appropriate, and desirable, that the governor be given this breadth of discretion.  No question has been raised in the present cases under paragraph 37A since no request for a visit was ever made under that paragraph.

The paragraphs themselves are not objectionable nor do they raise questions of vires.

BELL J:   This is all directed to considerations of the good order and discipline within a correctional facility.

MR SOFRONOFF:   Exactly, yes.

BELL J:   It does seem a little remote from considerations of the circumstances of a person on parole.

MR SOFRONOFF:   This case related to disturbances within the prison.  There are, however, a number of aspects to which the chief executive under section 130 would have to have regard.  One is, of course, that.  The second is the welfare of the prisoner himself or herself.  In a different context, a case called Ferguson, where a convicted sex offender was pursued and pursued and pursued and, indeed, wherever he appeared there was a small riot, so it is conceivable that merely the presence of a particular person in particular circumstances at an event may give rise to consequences for that person and for others.

Equally, the notoriety and statements made by a prisoner while a parolee may give rise to the sorts of problems that were referred to in Simms, that is to say, if a person becomes a criminal hero outside gaol, it may have consequences within the gaol. The point I wish to draw from this and I hope which would be of assistance is this, that just as the chief executive has the means to prevent trouble to the prisoner or to the prison community by his powers to direct the conduct of prisoners within the prison, equally he has such powers with respect to parolees outside prison only for that purpose.

It may be, as is implied by your Honour Justice Bell’s question to me, that the occasions upon which that would happen would be rare and that must be so but they may arise and it is one arrow in the chief executive’s quiver that is available for use.  It has been acknowledged by our learned friends in oral argument that circumstances might arise where, pursuant to the mandatory condition that is contained in all parole orders that the parolee obey the lawful directives of the chief executive, the chief executive might direct a parolee not to attend a meeting or an event for some reason, and that it was accepted that might be a valid instruction.

Section 130 and condition (t) are nothing more than specific instances of that; one by a provision of the Act and the other by a condition that was imposed in these circumstances.  What the Parole Board evidently sought to achieve by this condition can be seen from the special case book at page 52.  Now, the means available to the chief executive to supervise for relevant purposes a prisoner on parole include the directions that can be given pursuant to the condition imposed in every parole order.  It can be exercised by the actual suspension of the parole order, or the threat of suspension, which is conferred by section 201(2)(c) and by section 130 in an appropriate case where approval might be withheld for proper reasons.

At the heart of the plaintiff’s case is the complaint that the discretion, which it is admitted is constrained by the terms of the statute, is otherwise unconstrained, that is to say, it is suggested, as we apprehend the argument, that the discretion is almost at large because one cannot pinpoint the matters that would go to limit its exercise.  We would refer the Court to the dicta of Justice Dixon in Swan Hill Corporation v Bradbury (1936) 56 CLR 746. At 757 Swan Hill v Bradbury predated Shrimpton and his Honour said a little bit more, that is, gave a little bit more detail in this case at page 757 to 758 than appeared in Shrimpton.

Could I ask your Honours to have a look at the relevant provision which is in the footnote at page 746, the first page of the report which gave a general power to the municipality to approve or not approve the erection of buildings and there was a question whether that was within or outside power, a question your Honours need not consider, but the relevant passage at 757 deals with how a discretion is to be inferred in those cases.  Page 757 at about point 2 to 758 at about point 3, your Honours.  Of course, statements like that have been made both relying upon Swan Hill but also in other independent contexts in the High Court in many cases.

GUMMOW J:   Swan Hill did not have a constitutional dimension, unlike Shrimpton.

MR SOFRONOFF:   No, that is right, your Honour.  So if the discretion is constrained as it is admitted on all sides it is, what is it constrained by?  In our respectful submission, it is contained at least by, for example, the concepts referred to in 27(2) whether there is “a threat to the security of a corrective services facility”, whether there is any issue concerning “the safety of the person and other persons”, prisoners, people within the prison, that is, staff members or visitors, or people outside, and matters of that kind. 

As has been said in Swan Hill and other cases, the reason the discretion might be conferred without such constraints is that it is not possible to identify with any useful purpose all the occasions and circumstances and the ways in which the discretion ought to be exercised, but that is not to say it is in any sense unbridled or at large.  As to that, a submission was made that the burden that one – the existence of which one looks for in cases such as this one – the burden comes from the need to apply for judicial review.  It is admitted that there is a right or review under the statute. 

In our respectful submission, that misconceives the notion of what is a burden.  The burden here does not exist because a lawfully exercised discretion cannot prevent the plaintiff from speaking freely upon political matters, except unless some overriding interest such as the most overriding one, the safety of another person, is in issue, or – and minds could differ about this – if it is likely in the reasonable opinion of the chief executive that there would be a disturbance at the prison or something of that kind arising.

Consequently, it is not apt to say that there is a burden here because if the plaintiff does not like the decision he is obliged to seek judicial review and that takes time and money.  The relevant question is, is the discretion conferred upon the chief executive constrained so that if it is exercised lawfully, the burden is not one which is to an impermissible degree, otherwise one would in every case be conducting an inquiry into the efficiency of the system of justice in a particular State and the availability of legal aid.

GUMMOW J:   The absence of the chief executive’s approval ‑ ‑ ‑

MR SOFRONOFF:   Would be an element of the offence?

GUMMOW J:   ‑ ‑ ‑would remove what would otherwise be ‑ ‑ ‑

MR SOFRONOFF:   The Crown would have to prove the absence of approval by reason of the words “it is not an offence”, rather than “it is a defence”.

GUMMOW J:   Yes, that is what I was wondering.  In the course of proving that would the collateral attack be possible?

MR SOFRONOFF:   Yes, in our submission, yes.  So it may be ‑ ‑ ‑

FRENCH CJ:   I noticed that in the 1988 version the authority of the - …..the authority of the chief executive it was actually integrated into the statement of the offence without the authority of a chief executive, interviews, et cetera.

MR SOFRONOFF:   Which reinforces that point – excuse me, your Honours.

HAYNE J:   Well, while, you are interrupted, which provisions of the Code or other provisions of Queensland statute law would make it necessary to plead, in the criminal charge, the absence of written approval?

MR SOFRONOFF:   Your Honour, I will have to look at that, but I am not sure that there is a provision of the Criminal Code which has that effect, rather an offence will be constituted by an act or – it is a provision, I think, section 3, that says it is constituted by an act or omission, and of course it may be an act in certain circumstances, so this would be an act - giving an interview in the circumstance of not possessing the approval.

HAYNE J:   What I am looking for is the root of the proposition, be it statutory or otherwise.

MR SOFRONOFF:   Yes, we will look at that overnight, your Honour.  A question arose this morning as to the process by which approval is sought and our learned friends read from a text in which the process did not sound very nice, but the current process is attached to our oral outline and with one minor exception, in our respectful submission, not that this can support the validity of the statute or the condition, but at least it shows that there is no concerted effort to stop Mr Wotton speaking.  Your Honours will see on the first page “Purpose” halfway down the left‑hand side:

To provide a process for the evaluation of requests . . . seeking access to –

among others –

offenders -.

MR MERKEL:   Could we just indicate we have not been handed this until the outline and we would like to have some words with our learned friend.  We do not mind him addressing your Honours on it, but we would like to reserve our rights in respect of it, because it may be incomplete and we do need to know the time at which this was operative and if it has been changed recently and matters such as that.  We do understand it is incomplete, but I do not want to delay our learned friend now, but we will deal with that after Court with him.  We do want to reserve our right respectfully.

MR SOFRONOFF:   I will deal with it on that limited basis, your Honours.  There are some general statements, and at the foot of the page:

The decision whether to grant media access . . . is made on case by case basis . . . issues of privacy and confidentiality; prison security and good order; the safe custody and well being of offenders; and the interests of victims of crime and their families.

In short it looks like a helpful document and the author of it had read the Act and had drawn criteria from the general terms of the Act.

KIEFEL J:   I am sorry, Mr Solicitor, what is its exact status?

MR MERKEL:   The exact status?  It is nothing, your Honour, except a policy, a procedure.  It is a guideline.  It has no statutory status whatsoever.  I only raised it because a like document has been raised this morning.

KIEFEL J:   I see, thank you.

MR MERKEL:   Just for the case of completeness and candour, 6.1e suggests that it is unlikely that a request would be approved in the case of a person detained for immigration purposes.  The reason for that does not appear but it might be an over‑delicacy about Commonwealth interests, I do not know, but otherwise, in our respectful submission, what this exemplifies is that one can draw from the statute relevant criteria - they are the obvious

ones - and compliance with those criteria with a view to making a decision within the four corners of the statute and the power conferred by it would not, in our submission, offend the Lange principle.  Those are our submissions, your Honour. 

FRENCH CJ:   Yes, thank you, Mr Solicitor. 

MR GAGELER:   Your Honours, I had intended to hand up a document tomorrow morning which is being typed as we speak and I expect it to come to hand while I am on my feet.  Apart from a couple of ‑ ‑ ‑

FRENCH CJ:   Sounds like you might need to be supplemented by a document, Mr Solicitor. 

MR GAGELER:   It may well be, your Honours.  Apart from a couple of observations along the way, we seek to confine our oral submissions to one point of principle about the application of Lange to a statute that confers a discretion, and it is a point of principle that is really nothing more than an application to the precise Lange context of the approach to constitutional limitations generally that one finds reflected in Sir Owen Dixon’s judgment in Shrimpton to which your Honour Justice Hayne drew attention at pages 629 to 630, and in your Honour’s own judgment in the section 92 context in the case of AMS and the relevant paragraph in that case is paragraph 121.

The point really comes down to this, that the constitutional limitation and the Lange analysis applies once and for all at the level of the statute that confers the discretion.  The statue is either valid or invalid in whole or in part, and if it is invalid in part it may be valid in part through an exercise of reading down. 

It may be that the statutory discretion itself, if conferred in general terms, needs to be read down so that its exercise, on a case by case basis, will require compliance with the constitutional limitation at that point of application.  That, for example, was the case of the discretion considered by the Court in Wainohu, particularly at paragraph 113 and, of course, by the discretion considered in the section 92 context in AMS, which was the subject of your Honour Justice Hayne’s observation at paragraph 121 and was the subject of observation by other members of the Court in that case at paragraph 46.

But the constitutional limitation and, relevantly, the Lange analysis has no separate or additional application at the level of the exercise or the non‑exercise of the discretion beyond that which is imported by a proper construction of the statute read down as may be necessary.  That is the exercise or non‑exercise of the discretion is either valid or valid at that point by reference to its compliance or non‑compliance with the statute as it may be read down, not by reference to some separate analysis of its compliance or non‑compliance with the constitutional limitation. 

Part of the difficulty with the plaintiff’s case and with some of the responses to the plaintiff’s case that have been put in writing, including our own, is that it very much starts, in particular, in relation to the conditions of parole at the level of the particular exercise or non‑exercise of the discretion.  That, in our submission, puts the cart before the horse.  It risks turning what is a systemic limitation on legislative power, which Lange is, into an area of individual right, which Lange is not.  Even more so, it runs the risk of jumping straight into an exercise in reading down a statutory discretion when no exercise in reading down may be necessary to ensure that the statute complies with the Lange principle.

GUMMOW J:   The real question is whether the statute on its construction is adverse to it.

MR GAGELER:   Yes, that is right.

GUMMOW J:   It is only if it is adverse to it that you have to cut something out of it.

MR GAGELER:   That you need to read it down to preserve validity.  Cunliffe, for example – your Honours have been taken to Cunliffe – was a case in which a statutory or licensing scheme prohibition combined with discretion was found because of the statutory limits on the discretion built into the structure of the statute to comply with what was then not known as Lange but what is now known as Lange without any need to read down the statutory discretion in any way.  If you go back to the section 92 cases, I will just give your Honours the reference to Buck v Bavone 135 CLR 110, again a licensing case where the licensing criterion was sufficiently confined in its terms not to require anything like a reading down.

FRENCH CJ:   The constructional process may itself attract common law principles of interpretation, including the principle of legality which may constrain it.

MR GAGELER:   Indeed, yes.  It may well be, and this is really my point, that the constructional process will produce a result where no further reading down by reference to the State equivalents of section 15A of the Acts Interpretation Act is necessary and you do not get to the point of some separate consideration of Lange on a case by case basis. Now, that really seems to us to be, without going to ultimate issue, to be likely to be the case when you consider the power conferred by section 200(2) of the current Act to impose conditions of parole.

GUMMOW J:   If I could just interrupt you, Mr Solicitor.  There is the point you make at paragraph 18, though, of your outline which I mentioned to Mr Merkel, I think.  There is an assumption that one cannot cut out the purely State elements, as it were.

MR GAGELER:   That is right.

GUMMOW J:   It is on that assumption that one then goes ahead and construes the statute, does it not?

MR GAGELER:   One certainly does, yes.

GUMMOW J:   I am not sure whether New South Wales agrees with that, anyhow, we will hear about that.  Paragraph 12, Victoria seems to leave it open.

MR GAGELER:   Your Honour, I wasn’t going ‑ ‑ ‑

GUMMOW J:   I am not trying to take you off your course, but that has to be the starting point, I think, a starting point anyway.

MR GAGELER: Indeed. We have said what we want to say about that in writing. I think I have said it every time I have got to my feet in a freedom of speech case and I thought your Honours would not want me to repeat that point here. Your Honours, turning to section 200(2) of the Act, if one starts with an acceptance of the proposition that a condition that is imposed under that section may by virtue of the obligation to comply which is imposed by the next subsection, section 200(3), and the consequences of non‑compliance that are then set out in section 201 through to section 206, all of that may, directly or indirectly, in a given case burden political communication. One starts with an acceptance of that statutory possibility and moves directly to the second stage of the Lange analysis which, in our respectful submission, is an analysis to be conducted at the level of the statute.

You ask for the legitimate end and the legitimate end, on any view, in our respectful submission, is supplied by the things that are identified in paragraphs (a) and (b) of the subsection itself. Those are statutorily identified ends. One then asks, is the burden of a parole condition that is imposed under section 200(2) reasonably and appropriately adapted to those statutorily identified ends in a way which is compatible with the maintenance of constitutional government?

The answer there, again, at the level of the statute, in our respectful submission, lies in an evaluation of the strength and legal and practical enforceability of the statutory criterion that is provided in the subsection itself.  The statutory criterion, that is, the requirement for the Board to reasonably consider the condition to be necessary to achieve that end, is a statutory criterion which echoes the second limb of Lange.  Indeed, on no version of the reasonably and appropriately adapted test does the second limb of Lange rise higher than a test of reasonable necessity.

There is in this respect a useful discussion in the judgment of Chief Justice Gleeson in Mulholland 220 CLR 181 at 39. There is simply no incompatibility with the maintenance of constitutional government for a statutory criterion of that nature to be applied administratively provided that it is administratively workable and that it is legally and practically judicially reviewable. There is, in our respectful submission, again on the face of the statute and considering it in its broader statutory and constitutional context, no reason to consider that the criterion to be administered by the Board under section 200(2) fails to meet those requirements.

A condition is an incident of an order under section 193(1).  It is to be made on application under section 180 and it is to be made following a hearing under section 188.  The Board, as we read the Judicial Review Act (Qld) is under a duty, if asked, to give reasons under Part 4 of that Act and then the order, including the condition, is subject to review under Part 3 of the Judicial Review Act and, of course, for jurisdictional error in the entrenched jurisdiction of the Supreme Court. Your Honours, all of that ought, one might think, be sufficient for section 200(2) to be valid under Lange without any requirement for any form of reading down.

If that is correct, then when you get to a particular condition that is imposed under section 200(2), then leaving aside any other form of reviewable error that may have occurred in the making of that condition, the only question is a statutory question and that is was it open to the Board reasonably to consider in terms of the statute. It is not a separate Lange constitutional question at that stage.  Now, that separate statutory question, as we read it at least currently, is simply not addressed in the statement of claim that brings this matter before the Court and it is not asked in a special case. 

Turning to section 132, if one starts with an acceptance that the prohibition that is imposed by subsection (1)(a) as qualified by the discretion in subsection (2)(d) operates to impose a burden on political communication – the burden being at least the need to obtain the prior exercise of discretion – then one moves again immediately to the second stage of the Lange analysis in respect of that qualified prohibition. 

Now, at this point in Mr Merkel’s submissions, there was a drift.  He started, as we heard him this morning, taking the Lange language of legitimate end and drifted very quickly to substantial reason and then from substantial reason to demonstrated mischief to the point where it seemed that every Lange case was to become a case of constitutional fact with the onus on the defendant.  In our submission, that is a drift which should be rejected, should be at least firmly resisted.

When the Court has repeatedly referred to a legitimate end it has used “legitimate” in the sense of meaning constitutionally permissible, that is, lawful within the powers of the Parliament.  That is the way Chief Justice Gleeson put it, in our submission correctly, in Mulholland 220 CLR 181 at 33. When the Court has referred to an end it has been referring to a purpose or object, that is, what the law seeks to do in practice, determined as a matter of construction by reading the text in context. That is the point strongly made in APLA 224 CLR 322 in the judgment of your Honour Justice Gummow, paragraph 178, and in the judgment of your Honour Justice Hayne, paragraph 423.

In the present case, without in any way seeking to detract from the way in which Queensland has sought to put the case by identifying particular ends in the special case book at paragraph 30, it may be possible to see the legitimate end identified sufficiently for present purposes within the terms of the statute itself if you look at section 3(1) where the purposes of the statute are identified and where in context those purposes are statutorily balanced by the considerations set out in the following subsections.

So that the question in Lange terms may well be whether the prohibition in section 132(1)(a), as qualified by the discretion in 132(2)(d), is reasonably and appropriately adapted to the end identified in the statute itself in a way that is compatible with the maintenance of constitutional government. That, in our respectful submission, turns primarily on the scope and again, the legal and practical incidence of the discretion in section 132(2)(d). If that discretion is one that the chief executive officer has a duty to exercise on application, we have given your Honours in the outline the usual authorities for that proposition.

If it is one that is limited by pursuance or to pursuance of the purpose that is identified in section 3 as balanced by – as 3(1) is balanced by subsections 3(2) and 3(3). If it is subject to a duty to give reasons under Part 4 of the Judicial Review Act, and we see no reason why it is not, and if it is, as it is necessarily subject to review in the Supreme Court for jurisdictional error, and if it is, as we believe it to be, subject to judicial review under Part 3 of the Judicial Review Act, then it may be open to conclude, without more, that there is compliance with Lange and no further reading down of the Shrimpton kind or any other is necessary.

If further reading down is necessary, then the reading down would be within section 132(1)(d). You would really read in “subject to the Constitution”. It is no more elaborate than that. That is the approach that has been taken, of course, in a host of section 92 cases. Your Honours, I was going to say something about Bennett but your Honours have the flavour of our view of Bennett from the written submissions.

FRENCH CJ:   Thank you, Mr Solicitor.  Yes, Solicitor‑General for New South Wales.

MR SEXTON:   If the Court pleases.  Your Honours, I think there is an outline of argument circulating.  It has just been handed up, I think.  Your Honours, we are happy to adopt the submissions of our learned friend from Queensland and just wish to say something about two other matters.  The first of them perhaps comes out of Justice Gummow’s question concerning paragraph 18 of the Commonwealth submissions because it really relates to how the case comes before this Court. 

In paragraphs 2 and 3 of the special case – it is at pages 44 to 45 of the special case book – there is a reference to six subjects that the plaintiff wishes to raise, he says, in public discussion. It may be that some of those would constitute the discussion of political and government matters for the purposes of the implied freedom under the Constitution because they were capable of effecting, to use the words of Lange, the choice that the people have to make in federal elections or in voting to amend the Constitution.

It seems doubtful to us that they would all fit within that category, so to that extent, in answer to Justice Gummow, we probably do not agree with paragraph 18 of the Commonwealth’s submissions, although the Commonwealth’s submissions in paragraph 16 seem to perhaps concede that that threshold question of government political discussion is not limitless and ‑ ‑ ‑

GUMMOW J:   But it is by now notorious that there is concurrent Commonwealth and State legislation relating to Aboriginal affairs, been so for years, a whole lot of administrative arrangements between them.

MR SEXTON:   That is so, your Honour, but whether it would meet that test in Lange, whether some of the subjects here, some of the subjects nominated by the plaintiff would meet that test.  That is part of the problem, that whatever view one takes of those subjects, there is a certain abstract quality about the case which makes it hard to apply the tests in Lange when there is no actual statements or publications that can be tested against the first requirement of political and government discussion or the two subsequent limbs of the test in Lange. 

It would be possible, of course, to take any number of general statutory provisions at the State or the federal level and a constructive proposed discussion of what is said to be political and government matters in order to mount a challenge to the validity of that legislation.  It would be different, of course, if the relevant legislation as in ACTV prohibited or burdened an obvious form of political and government discussion.  It will be recalled that in APLA Justice Hayne said at paragraph 381 that:

in deciding whether the freedom has been infringed, the central question is what the impugned law does, not how an individual might want to construct a particular communication –

We would say that is apposite in some ways to this case.  This case can be contrasted with Coleman or with Hinch where there were public statements that had been made and which in both cases were the subject of criminal charges, although in Coleman it was conceded by the Queensland Attorney‑General that the words used concerned matters within the freedom of communication implied under the Constitution. So that seems to add a degree of difficulty to the application of the Lange test when the case is brought in something of an abstract fashion.  Now, the second question to which I can refer briefly – I see the time, your Honour, but I can be brief if ‑ ‑ ‑

FRENCH CJ:   How much longer will you be?

MR SEXTON:   Only a couple of minutes, your Honour.

FRENCH CJ:   Just finish your submissions.

MR SEXTON: I will not give the citations for these cases which are set out in paragraph 10 of our written submissions, but in relation to at least section 132, accepting what the Commonwealth Solicitor‑General says about section 200, that it is important to note, we say, that the question is not whether the Queensland Parliament might have enacted a provision in slightly different terms, but whether the provision is reasonably – and we stress reasonably – appropriate and adapted to the purpose underlying of which here might be taken to be the supervision of persons on parole for the protection of the community and for the proper administration of the system that governs all prisoners.

Chief Justice Gleeson said in Coleman that a law will not be struck down it if restricts conduct that may incidentally burden freedom of political speech simply because it can be shown that some more limited restriction could suffice to achieve the legitimate purpose.  Justice McHugh noted in the same case that this test gives legislatures a margin of choice as to how a legitimate end may be achieved and Justice Heydon said that the

inquiry into whether a law is reasonable appropriate and adapted to achieving a legitimate end does not call for a judicial conclusion that the law is the sole or best means of achieving that end.

To similar effect in Levy, Chief Justice Brennan said that the courts do not assume the power to determine that some more limited restriction than that imposed by an impugned law could suffice to achieve a legitimate purpose.  Justice McHugh noted in that case that one of the Victorian regulations under challenge, which your Honours will recall imposed a blanket prohibition on entry to hunting areas when it could have been designed to promote safety, but perhaps leave still some freedom to protest by persons not engaged in hunting, as Justice McHugh noted, but like other members of the Court, while noting that, he still considered that the regulation was valid on the basis that it was adapted and appropriate to a legitimate end even though it could have been in more restrictive terms.  If the Court pleases, those are our submissions.

FRENCH CJ:   Thank you, Mr Solicitor.  The Court will adjourn until 10.15 tomorrow.

AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 3 AUGUST 2011