Cunliffe v Commonwealth

Cunliffe v Commonwealth - [1994] HCA 44 - HCA 1994 case summary — Zoe

[63]

Notwithstanding the variations in these descriptions of the implication, they are inconsistent with the Commonwealth's submission that the implication only precludes legislative restrictions upon communications for the purposes of the political processes in a representative democracy. That submission, which asserts that the freedom does not extend to communications with government authorities or other persons in the course of, or for the purposes of, the administration of an Act according to its terms, takes a too narrow view of the part which freedom of communication plays in the workings of representative democracy and government. That freedom necessarily extends to the workings of the courts and tribunals which administer and enforce the laws of this country. The provision of advice and information, particularly by lawyers, to, and the receipt of that advice and information by, aliens in relation to matters and issues arising under the Act falls clearly within the potential scope of the freedom. Non-citizens who are actually present within this country, like citizens, are entitled to the protection afforded by the Constitution and the laws of Australia [25] . It follows that non-citizens actually within this country are entitled to invoke the implied freedom of communication, particularly when they are exercising that freedom for the purpose, or in the course, of establishing their status as entrants and refugees or asserting a claim against government or seeking the protection of government. And that is precisely what aliens are doing when they receive legal advice, obtain representation and procure the making of representations in connexion with entry applications, applications for refugee status, the refusal of such applications and consequential review proceedings and court proceedings. In essence, the advice and services sought and received relate to the rights and status of an alien under a law of the Commonwealth. The provision by citizens of advice and services to non-citizens on such matters falls clearly within the freedom.

[149]

The view which I personally have expressed is that everything which is incidental to the main purpose of a power is contained within the power itself so that it extends to matters which are necessary for the reasonable fulfilment of the legislative power over the subject matter in accordance with the maxim quando lex aliquid alicui concedit, concedere et illud videtur sine quo res ipsa valere non potest. In speaking of the "main purpose of a power", his Honour was seeking to define the limits of the acts, matters and things which a law enacted under the power might validly govern or affect. The limit was defined by ascertaining what the law is directed to - that is, the purpose of the law - and by determining whether that purpose is within the scope of the power. Dixon C.J. said that "the Parliament may in the exercise of any of the substantive powers given by s. 51 make all laws which are directed to the end of those powers and which are reasonably incidental to their complete fulfilment" [29] . His Honour added [30] : In the administration of the judicial power in relation to the Constitution there are points at which matters of degree seem sometimes to bring forth arguments in relation to justice, fairness, morality and propriety, but those are not matters for the judiciary to decide upon. The reason why this appears to be so is simply because a reasonable connexion between the law which is challenged and the subject of the power under which the legislature purported to enact it must be shown before the law can be sustained under the incidental power. The "reasonable connexion" is not between the law and the incidental power or the incidental aspect of a power but between the law and "the subject of the power"; in other words, the ordinary test of validity is applicable. But a connexion with a head of power may be revealed more clearly by stating the purpose or object which the law is appropriate and adapted to achieve than by describing the law's effect and operation on particular rights, duties, powers and privileges. A law may reveal a reasonable connexion with a head of power either by reference to its effect and operation or by ascertaining that the purpose or object of the law is a purpose or object within the power. It was in reference to laws of this kind that Dixon J. said in the Bank Nationalization Case [31] : in all cases where it is sought to connect with a legislative power a measure which lies at the circumference of the subject or can at best be only incidental to it, the end or purpose of the provision, if discernible, will give the key. That is not to say that there is a division between the core and incidental aspects of a power. It is merely to point out that, by divining the purpose of a law from its effect and operation, its connexion with the subject of the power may appear more clearly. Where this is the manner of characterization of a law, its validity is ascertained first by determining its purpose or object - a determination made by reference to what its effect and operation are "appropriate and adapted" [32] to achieve - and then by looking to the connexion between that purpose or object and the relevant head of power. Of course, the process of characterization may be carried out in inverse order: first postulate a purpose or object within power, then determine whether the law is appropriate and adapted to achieve it. Whichever order be followed, the test of validity is constant. The court determines whether there is a "reasonable connexion" between the effect and operation of the law or the purpose or object of the law on the one hand and the head of power on the other. 1. (1952) 86 C.L.R., at p. 177. 2. ibid., at p. 178. 3. ibid., at p. 179. 4. (1948) 76 C.L.R., at p. 354. 5. See, e.g., Airlines of N.S.W. Pty. Ltd. v New South Wales [No. 2] (1965), 113 C.L.R. 54, at p. 86.

[172]

The freedom is not a right conferred on individuals by the Constitution; the implication on which it rests defines its nature and extent. Just as s. 92 precludes the operation of other laws to impair the freedom of interstate trade and commerce which it expressly guarantees [11] , so the Constitution precludes by implication from its terms [12] the operation of other laws to prejudice the system of representative democracy mandated by the Constitution. The implication is negative in nature: it invalidates laws and consequently creates an area of immunity from legal control, particularly from legislative control. The freedom of communication in political matters enjoyed by Australian citizens is a function of that immunity. It is fundamentally erroneous to regard the implication as a constitutional guarantee of a personal right to freedom of communication amenable to definition and expansion by judicial declaration, leaving the Parliament with only the remaining legislative power. There is simply no constitutional text which can legitimately found that approach. As I said in A.C.T.V. [13] : It is convenient to speak of the implied limitation [on legislative power] as a freedom of communication, for the terms are reciprocal: the extent of any relevant limitation of legislative power is the scope of the relevant freedom. But, unlike freedoms conferred by a Bill of Rights in the American model, the freedom cannot be understood as a personal right the scope of which must be ascertained in order to discover what is left for legislative regulation; rather, it is a freedom of the kind for which s. 92 of the Constitution provides: an immunity consequent on a limitation of legislative power. The power cannot be exercised to impair unduly the freedom of informed political discussion which is essential to the maintenance of a system of representative government. Whether that freedom is regarded as an incident of the individual right to vote [14] or as inherent in the system of representative and responsible government prescribed by Ch. I of the Constitution, it limits the legislative powers otherwise conferred on the Parliament. Although the aliens power in common with other legislative powers is limited by the implied freedom of political discussion necessary to sustain a system of representative democracy, it does not follow that aliens are constitutionally entitled to claim that freedom. The freedom must be available to citizens and, in principle, to any others who are entitled to vote in Australian elections. But representative democratic government does not require that aliens as a class should be immune from the operation of laws which might limit their freedom to discuss those matters. Aliens are entitled to protection by applicable Australian law [15] but they have no constitutional right to participate in or to be consulted on matters of government in this country. The Constitution contains no implication that that freedom is available to aliens who are applying for or who have applied for visas, entry permits or determinations of refugee status. Nor is there any basis for implying that aliens have a constitutional right - though they may well have a statutory right [16] - to have access to Government to press their applications for authority to enter or to stay in Australia. If the Constitution implies a right of access to government or to the repositories of statutory power [17] , a question which it is unnecessary to determine, it would be a citizen's right [18] not the right of an alien. 1. A.C.T.V. (1992), 177 C.L.R., at p. 137. 2. ibid., at p. 138, per Mason C.J. 3. ibid., at p. 149, per Brennan J. 4. ibid., at p. 212, per Gaudron J. 5. ibid., at pp. 233, 234, per McHugh J. 6. Nationwide News (1992), 177 C.L.R., at p. 51, per Brennan J. 7. ibid., at p. 73, per Deane and Toohey JJ. 8. Cole v Whitfield (1988), 165 C.L.R. 360. 9. Queensland Electricity Commission v The Commonwealth (1985), 159 C.L.R. 192, at p. 231; A.C.T.V. (1992), 177 C.L.R., at p. 181; Nationwide News (1992), 177 C.L.R., at pp. 42-45. 10. (1992) 177 C.L.R., at p. 150. 11. See Ashby v White (1703), 2 Ld Raym. 938 [92 E.R. 126]; Judd v McKeon (1926), 38 C.L.R. 380, at p. 385. 12. Re Bolton; Ex parte Beane (1987), 162 C.L.R. 514, at pp. 521-522, 528-529; Chu Kheng Lim v Minister for Immigration (1992), 176 C.L.R., at p. 29. 13. As in Kioa v West (1985), 159 C.L.R. 550, for example. 14. By analogy with the right of physical access declared in Crandall v Nevada (1867), 73 U.S. 35. 15. So expressed in Crandall, ibid., at p. 44.

[196]

In our joint judgment in Nationwide News Pty. Ltd. [38] , Toohey J. and I expressed the view that, in so far as the people of the Commonwealth are concerned, the Constitution's implication of freedom of political communication and discussion in relation to Commonwealth matters operates at two distinct, albeit overlapping, levels. The first is the level of communication and discussion between the represented and their representatives, that is to say, the level of communication between the people of the Commonwealth on the one hand and the Parliament and its members and other Commonwealth instrumentalities and institutions on the other. The second is the level of communication amongst the represented, that is to say, the people of the Commonwealth. That discussion of the operation of the implication was not framed with the special case of an alien in mind. Nonetheless, its underlying assumption that the implication is directed to freedom of communication and discussion by the people of the Commonwealth is well founded. While an alien who is within this country enjoys the protection of the ordinary law [39] , including the protection of some of the Constitution's guarantees, directives and prohibitions [1] , he or she stands outside the people of the Commonwealth whose freedom of political communication and discussion is a necessary incident of the Constitution's doctrine of representative government. That being so, the implication does not operate to directly confer rights or immunities upon an alien. Any benefit to an alien from the implication must be indirect in the sense that it flows from the freedom or immunity of those who are citizens. Nonetheless, the distinction between the implication's direct protection of the freedom of political communication of Australian citizens and its indirect protection of the freedom of communication of non-citizens within Australia will ordinarily be of no practical significance. The primary operation of the implication is to confine, as a matter of construction, the content of legislative powers conferred upon the Parliament by the Constitution, and a law which is ultra vires because it would infringe the implication is likely to be equally invalid in its purported application to both citizens and non-citizens. Thus, for example, the implication's direct protection of political communications by or to a citizen will, where an alien is involved as the other party, ordinarily be mirrored by indirect protection of the political communications to or by that alien. More important, the implication is of freedom of political communication and discussion within a democratic community dedicated to representative government. That being so, the implication is not confined to direct communications by or with the individual citizen. It extends to the broad national environment in which the individual citizen exists and in which representative government must operate. In the context of that broad national environment, the implication's confinement of the content of legislative power protects the freedom of communication and discussion of non-citizens, be they corporations or aliens, to the extent necessary to ensure that the freedom of citizens to engage in discussion and obtain information about political matters is preserved and protected.

[202]

If consideration of the first question discloses that the effect of the law upon freedom of political communication and discussion is merely an incidental and remote consequence of the operation of a law upon some other subject matter, it may be apparent that the answer to the second question is in the negative for the reason that no significant curtailment of the freedom of political communication and discussion is involved. That may even be so in a case where the law prohibits or regulates a particular type of communication or discussion which is neither inherently political in its nature nor a necessary ingredient of political communication or discussion (e.g. incitement or conspiracy to commit a serious criminal offence). In such cases, any incidental curtailment of freedom of political communication and discussion will be consistent with the constitutional implication if it is reasonably capable of being seen as necessary or appropriate and adapted to the legitimate legislative aim being pursued by the Parliament. The position is, however, different in a case where what is involved is a general prohibition or regulation of communication or discussion as such or where there is a likelihood that a prohibition or regulation of a particular kind of communication or discussion will involve a significant curtailment of the freedom of political communication and discussion. In such a case and (a fortiori) in a case where the law is, of its character and as a matter of its direct operation, a law prohibiting or controlling political communication or discussion as such, reconciliation with the constitutional implication will be more difficult. That is also the case where the impugned law prohibits or controls a particular class or type of communication or discussion which is either inherently political in its nature or is a necessary ingredient of effective political communication or discussion. In those cases, the law will be consistent with the implication only if its curtailment of the freedom of political communication or discussion can, according to the standards of our society, be justified in the public interest for one or other of the possible reasons identified in the above passage from the judgment of Toohey J. and myself in Nationwide News Pty. Ltd. Those possible reasons are that the curtailment is conducive to the overall availability of the effective means of political communication and discussion in a democratic society or that the curtailment does not go beyond what is necessary either for the preservation of an ordered society or for the protection or vindication of the legitimate claims of individuals to live peacefully and with dignity in such a society. In that formulation, I use the phrase "does not go beyond what is necessary" in the sense explained by Lord Goff of Chieveley in Attorney-General v Guardian Newspapers Ltd. [No. 2] [5] : " "necessary" in this context implies the existence of a pressing social need, and that interference with freedom of expression should be no more than is proportionate to the legitimate aim pursued." Within the area of what can be so justified, legislative power extends and the courts must defer to the legislative will. Outside that area, freedom of political communication and discussion is constitutionally entrenched. That being so, it is the unavoidable duty of courts of competent jurisdiction to determine whether a purported statutory curtailment of the freedom is consistent with the constitutional implication for the reason that it can be so justified in the same way as it is the duty of the courts to require observance by the country's legislatures of other applicable constitutional guarantees, injunctions, prohibitions and restrictions, whether express or implied. In discharging that duty, the courts do not arrogate to themselves legislative powers. They do no more than discharge the judicial function directly or indirectly entrusted to them by the Constitution adopted by the people as the compact of our nation.

[474]

In Cole v Whitfield [37] , this Court said that the "notions of absolutely free trade and commerce and absolutely free intercourse are quite distinct and neither the history of [s. 92] nor the ordinary meaning of its words requires that the content of the guarantee of freedom of trade and commerce be seen as governing or governed by the content of the guarantee of freedom of intercourse". Because that is so, the freedom of interstate intercourse guaranteed by s. 92 of the Constitution is not confined to freedom against laws that are discriminatory in a protectionist sense, as is the case with freedom of interstate trade and commerce. Absence of discrimination against interstate intercourse is a necessary condition of, but does not constitute, freedom of interstate intercourse. Nevertheless, although s. 92 uses the term "absolutely free", that does not mean that intercourse among the States must be free from all laws. Kitto J. pointed out in Hughes & Vale Pty. Ltd. v New South Wales [No. 2] [38] that it follows from the nature of the Constitution itself, as an instrument for the government of the nation, that s. 92regards interstate trade, commerce and intercourse as activities which are regulated by law. But given the emphatic injunction that the freedom of intercourse is absolute, it is a natural, if not necessary, conclusion that the freedom of intercourse guaranteed by s. 92 should be impaired only by laws that are necessary for the government of the nation or its constituent parts. A law is necessary in the relevant sense only if there is a real social need for it and the restriction or burden on interstate intercourse is "no more than is proportionate to the legitimate aim pursued" [39] . Unless the impact of legislation on the freedom of interstate intercourse is so restricted, the freedom of intercourse that s. 92 guarantees would be a freedom that was subject to enacted laws. Such a construction would make s. 92 superfluous and fail to give effect to the injunction that the freedom is to be absolute. The words "intercourse among the States shall be absolutely free" in s. 92 should, therefore, be given their ordinary and natural meaning, limited only by the need to accommodate laws that are reasonably necessary for the government of a free society regulated by the rule of law.

At a glance

Court

Decision date

Before

Source

Judgment (481 paragraphs)

Parties