and
"When a law of a State or federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution, two questions must be answered before the validity of the law can be determined. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s128 for submitting a proposed amendment of the constitution to the informed decision of the people (hereafter collectively 'the system of government prescribed by the Constitution'). If the first question is answered 'yes' and the second is answered 'no', the law is invalid." (567-568)
79 The Attorney did not make submissions which sought to confine the scope of, or application of, the freedom of communication under the Constitution in some manner pertinent to the legislative power of the State. No submission was made to the effect that the relevant principles differed in any respect by reason of the fact that the law in question was a law of the State, rather than a law of the Commonwealth. Accordingly, no occasion arises to explore the jurisprudential basis by which the constitutional immunity operates to confine State legislative power.
80 The Attorney General made two submissions. First, the present case did not involve any discussion of government and political matters. Secondly, that the particular subsections of s101A of the Supreme Court Act did not infringe the implied freedom of communication. This latter submission was based on the proposition that the competing public interests involved may reasonably be balanced in the way the legislature has done and, accordingly s101A does not impose a relevant burden at all or is "reasonably appropriate and adapted to serve a legitimate end".
81 The Claimant submitted that the relevant subsections of s101A of the Act did burden freedom of communications about governmental and political matters. The Claimant put its case in this respect in three different ways.
82 First, the Claimant suggested that judges and courts are within the sphere of public officials and bodies about whom the freedom could be exercised. Mr Rares SC who appeared for the Claimant, submitted that the conduct of the judiciary was itself a legitimate matter of public interest. He referred to R v Nicholls (1911) 12 CLR 280. (To similar effect are the references to judges by Deane J in Theophanous v Herald and Weekly Times Ltd (1993-1994) 182 CLR 104 at 179, 180, 182). Counsel also relied on certain observations of McHugh J in Stephens v West Australian Newspapers Ltd (1993-1994) 182 CLR 211 at 264 (which were quoted with approval in the joint judgment in Lange at 570-571):
"In the last decade of the twentieth century, the quality of life and the freedom of the ordinary individual in Australia are highly dependent on the exercise of functions and powers vested in public representatives and officials by a vast legal and bureaucratic apparatus funded by public monies. How, when, why and where those functions and powers are or are not exercised are matters that are of real and legitimate interest to every member of the community. Information concerning the exercise of those functions and powers are of vital concern to the community. So is the performance of the public representatives and officials who are invested with them. It follows in my opinion that the general public has a legitimate interest in receiving information concerning matters relevant to the exercise of public functions and powers vested in public representatives and officials."
83 This passage, both as originally delivered and as approved in Lange, is concerned with the scope of qualified privilege for the purposes of the law of defamation. The inclusion of courts and judges in the scope of the subject matter with respect to which the public as a whole can be identified to have an interest, for purposes of applying the traditional rules of reciprocity in the context of qualified privilege for a defamatory statement, is not coextensive with the constitutional protection of freedom of communication. That protection, as Lange made clear, is an implication to be derived from the text and structure of the Constitution insofar as it makes provision for representative government. The conduct of courts is not, of itself, a manifestation of any of the provisions relating to representative government upon which the freedom is based.
84 There are references in Lange itself, and in earlier authorities, to the possibility of amendment of the Constitution at a referendum. Although, the submission was not made in these terms, it is possible to conceive of a referendum concerned with amending Chapter III of the Constitution in relevant respects. In my view any such link between freedom of communication and the judiciary is altogether too tenuous. The formulation 'governmental or political matters' is intended to confine the scope of the constitutional freedom. In theory, any subject matter may be the subject of a constitutional amendment. Section 128 is one of the provisions upon which the implied restriction has been based. It has not been suggested that it may operate on its own. To do so would lead to the conclusion that there was virtually no subject that was not of a 'governmental or political' character. This was not, as I understand it, the intention of the High Court in Lange.
85 The second way in which the Claimant put the case in this respect was based on the fact that the Attorney General is a member of the NSW Government and a public official and in that capacity exercises functions under s101A concerning the administration of criminal justice. The effect of s101A is that no one can attend the hearing of the questions which the Attorney has decided need to be considered by the Court. Nor, subject only to what may subsequently be published in the law reports, can anyone read or publish reports about the hearing, irrespective of the broader significance of the issue or issues which the Attorney General seeks to raise. It is true, as the Attorney submitted, that these functions are performed in a particular capacity as First Law Officer. But this is not inconsistent with the subject matter being governmental or political. The conduct of the Attorney in this respect is capable of giving rise to political issues about the performance by him of his official duties.
86 Insofar as this second basis focuses on the responsibility of a State Minister to a State Parliament and her or his accountability to a State electorate, I do not understand the line of authority in the High Court to go that far. There are references, including in the passages from Lange which I have quoted above, which envisage the possibility that State legislation may impinge upon the scope of the Constitutional immunity, but that is because of the impact that State legislation restrictive of freedom of expression may have upon the ability to communicate with respect to matters of actual or potential concern within the system of representative and responsible government established by the Constitution for the Commonwealth.
87 The interconnection between the systems of government and the overlapping of issues between the levels of government is such that the Court must not approach these matters with any rigid conception of the respective responsibilities of the Commonwealth and the States. Nevertheless, in a situation in which the proposition is advanced that the relevant impingement relates to the accountability to the electorate and the responsibility of members of the executive, the focus of attention must be upon the mechanisms for accountability and responsibility of Commonwealth ministers, not State ministers.
88 As McHugh J said in Levy v Victoria (1996-1997) 189 CLR 579 at 622:
"It is not open to doubt ( Lange v Australian Broadcasting Corporation (1997) 189 CLR 520) that the Constitution protects the freedom of 'the people of the Commonwealth' (the members of the Australian community) to communicate with each other concerning those political and government matters that are relevant to the system of representative and responsible government provided for by the Constitution. By a necessary indication drawn from ss7, 24, 64 and supporting sections, the Constitution strikes down laws burdening freedom of communication on these matters. (The freedom also extends to those matters that are relevant to the amendment of the Constitution under s128.) The implication is necessary because, without it, people of different backgrounds or with different perspectives or information could be legally prevented from exchanging views on matters relevant to choosing their representatives at federal elections and on matters relating to the performance of federal Ministers . Consequently, no Commonwealth or State law can validly impair the freedom of communication that the Constitution protects and, as the decision in Lange demonstrates, the common law cannot be at odds with the Constitution. The freedom protected by the Constitution is not, however, a freedom to communicate. It is a freedom from laws that effectively prevent the members of the Australian community from communicating with each other about political and government matters relevant to the system of representative and responsible government provided for by the Constitution ." (Emphasis added)
89 The issue is whether in the exercise of statutory powers under a State act which involves the responsibility of a State Minister to a State Parliament and of his or her accountability to a State electorate, falls within the scope of the constitutional freedom. Nothing in Lange itself, or any of the other authorities on the constitutional immunity, suggest that such a relationship on its own is sufficient.
90 The third way in which the Claimant put this aspect of the case focussed on the subject matter of the articles which gave rise to the contempt proceedings and, in turn, to the present litigation.
91 The parties in these proceedings referred to the record in other proceedings in the Court, being proceedings No 40304/99. In those proceedings the Attorney General sought a determination under s101A of certain issues of law which, he submitted, arose in proceedings in the Supreme Court, being proceedings in which the allegation of contempt was dismissed (Attorney General for the State of New South Wales v John Fairfax Publications Pty Limited [1999] NSWSC 318).
92 The Solicitor General of New South Wales, who appeared for the Attorney submitted:
"The articles which were the subject of the contempt proceedings in this case did not constitute a discussion of government and political matters, being concerned with the drug trade in Sydney and some of the persons alleged to be major importers and distributors".
93 The Claimant submitted that the articles gave rise to important questions of government and political concern, specifically as to whether sufficient public resources were being devoted to the prevention of the drug trade.
94 There is no doubt that the Solicitor General's submission is correct in the sense that one characterisation of the articles is that they concern "the drug trade". However, the Lange test does not require the subject matter of the communication to be capable of characterisation in only one way i.e. as "governmental or political" communications. If the communications can be characterised in that way, as a matter of substance, then, irrespective of any other characterisation which may also be accurate, they may fall within the constitutional immunity.
95 The articles in question, on their face, were concerned with issues of major public significance, which have occasioned political debate of considerable intensity. The articles themselves manifest in a quite graphic way the degree of interconnection which exists between Commonwealth and State political issues and which has frequently been commented upon in the case law on the constitutional protection of freedom of communication. (See eg Nationwide News v Wills (1991-1992) 177 CLR 1 at 73 per Deane and Toohey JJ; Stephens supra per McHugh J at 264; Lange supra at 570-572).
96 The contempt proceedings were occasioned because one person, identified as the "top heroin distributor", was being prosecuted for offences concerning the supply of heroin. It appears likely that those offences were State offences.
97 The publication also referred to other persons, including another specified individual described as the "top heroin importer", a matter which involved Commonwealth offences. The interconnection between importation and distribution is close. This is emphasised by the fact that the publication refers to the activity of both State and Commonwealth law enforcement officials with respect to the drug trade.
98 A significant part of the publication talks about the effects of budgetary cuts on the ability of the Australian Federal Police to meet the demands placed upon the force by the illegal drug trade. Other matters of public significance include the steps taken to prevent individuals, including the person charged with offences under State law, from gambling in State regulated casinos, suggesting the use of that facility as a means of laundering money from the illicit trade.
99 The significance of the public issues debated will need to be determined more precisely in the Attorney's appeal under s101A. For present purposes it is sufficient to note that the articles did raise questions of a governmental and political character at a Commonwealth level. Although the Attorney's application under s101A cannot change the outcome with respect to the particular articles, nevertheless the questions of law sought to be agitated in the s101A application will be of significance for the ability of the media to publish other articles of the same character.
100 Notwithstanding the tender of the material from other proceedings, the articles to which I have referred are not directly relevant to the constitutional issue. They are illustrative - in the circumstances, a particularly pertinent example - of the potential application of the law of contempt, as may be elucidated by the Court upon an application to which the restrictions in s101A apply.
101 The issues to be agitated under s101A are legal issues one step removed from the direct application of the law of contempt in a way which impedes the freedom of communication. Nevertheless, in my opinion, the way in which the law of contempt is sought to be clarified in such proceedings, could impinge on matters of a governmental and political character in subsequent contempt proceedings.
102 The law of contempt as proposed to be clarified or determined by an application under s101A applies to a wide range of conduct including communications about matters of major social and political significance at a Commonwealth level. The process of consideration of the applicable law is inextricably interconnected with its practical operation. In my opinion, such consideration falls within the scope of the constitutional immunity.
103 As I have indicated above the position of the Attorney as a Minister responsible to a State Parliament is not a relevant connection for the application of the constitutional immunity. However, there is a different connection to the text and structure of the Constitution. The State courts to which s101A applies exercise federal jurisdiction invested in them by the Commonwealth Parliament. Contempt proceedings instituted by the Attorney, and applications with respect to such proceedings under s101A, may relate to the exercise by a State court of federal jurisdiction. A relevant example in the materials before the Court would be a prosecution for a Commonwealth offence relating to the importation of drugs.
104 The actions of the Attorney, including the submissions made on her or his behalf in this Court, are not permitted to be exposed to public scrutiny by force of a State statute. However, those actions may relate to the exercise by this Court of federal jurisdiction with respect to a criminal trial for a Commonwealth offence.
105 The law of contempt is, in part, directed to ensuring that persons accused of Commonwealth offences receive a fair trial. (See e.g. Hinch v Attorney-General for the State of Victoria (1987) 184 CLR 15 at 27-28, 58-59, 76, 87). The law of contempt is part of the common law of Australia, which is applicable in all courts including federal courts and State courts exercising federal jurisdiction. The role of a State Attorney in instituting and pursuing proceedings with respect to the law of contempt is one manifestation of the integration which exists between federal and state levels of government. (See e.g. Nationwide News Pty Ltd v Wills supra at 142, 216; Theophanous v Herald and Weekly Times supra at 122, 164; Stephens v West Australia Newspapers Ltd supra at 232, 257, 264; Lange supra at 571-572; Levy v Victoria supra at 596, 633, 642). The significance of integration of State courts in a national judicial system was emphasised by McHugh J in Kable supra at 114-115. See also John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36 esp at [34], [53], [67] and [68].
106 The role of the State Attorney under s101A with respect to federal jurisdiction is indivisible from that role with respect to state jurisdiction. The common law which is to be elucidated impinges on both. Furthermore, the policy of a State Attorney manifest in the contentions put on her or his behalf may be relevant to decisions at a Commonwealth level on the exercise of such powers as the Commonwealth may have to affect the operations of State courts in the exercise of federal jurisdiction or, indeed, whether to modify the conferral of such jurisdiction.
107 For these reasons, in my opinion, the institution and conduct of proceedings by the Attorney under s101A falls within the conception of governmental and political matter within the constitutional immunity.
108 The Attorney submitted, in the alternative, that if the communication bore the requisite governmental or political character, s101A was reasonably appropriate and adapted to serve a legitimate objective; namely, the protection from further adverse publicity of a person acquitted of a criminal charge.
109 The task of balancing the public interest in freedom of speech against other public interests, has been the subject of a considerable body of jurisprudential writing and judicial commentary. Lange itself involved the process of striking a balance between the right of reputation and freedom of speech. The joint judgment said at 568-569:
"… the critical question in the present case is whether the common law of defamation as it has traditionally been understood, and the New South Wales law of defamation in its statutory form, are reasonably appropriate and adapted to serving the legitimate end of protecting personal reputation without unnecessarily or unreasonably impairing the freedom of communication about government and political matters protected by the Constitution.
The purpose of the law of defamation is to strike a balance between the right to reputation and freedom of speech. It is not to be supposed that the protection of reputation is a purpose that is incompatible with the requirements of freedom of communication imposed by the Constitution. The protection of the reputations of those who take part in the government and political life of this country from false and defamatory statements is conducive to the public good. The constitutionally prescribed system of government does not require - to the contrary, it would be adversely affected by - an unqualified freedom to publish defamatory matter damaging the reputations of individuals involved in government or politics. The question then is whether the common law of defamation, as it has traditionally been understood, and the statute law regulating the publication of defamatory matter are reasonably appropriate and adapted to the protection of reputation having regard to the requirement of freedom of communication about government and political matters required by the Constitution."
110 Similar considerations arise with respect to the law of contempt. The courts have previously considered submissions to the effect that the law of contempt, or some statutory equivalent thereof, contravenes the protection of freedom of communication in the Constitution. As Gleeson CJ said in Attorney General (NSW) v Time Magazine (NSW Court of Appeal, 15 September 1994, unreported) (quoted in Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540 at 570):
"The common law principles … are … the result of a balancing of competing interests; the public interest in freedom of expression and the public interest in the administration of justice. Freedom of expression is not unconditional. Expression can, for legally relevant purposes, be free even though it is subject to other legitimate interests …"