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[1997] HCA 31
High Court of Australia
1997-07-31
Brennan CJ, Kirby JJ
Original judgment source is linked above.
For the reasons that I have given, the constitutional implication extends to protecting political messages of the kind involved here and also the opportunity to send those messages. By prohibiting protesters like the plaintiff and any accompanying media representatives from entering the permitted hunting area at Lake Buloke, the Regulations effectively prevented the protesters from putting the kind of political message to the people and government of Victoria that they wished to put to them. It is beside the point that their arguments against the alleged cruelty of duck shooting could have been put by other means during the periods when the Regulations operated. What the Regulations did was to prevent them from putting their message in a way that they believed would have the greatest impact on public opinion and which they hoped would eventually bring about the end of the shooting of game birds. That being so, and subject to one qualification, the Regulations effectively burdened their freedom to communicate with other members of the Australian community on a political matter.
The qualification is whether, in the absence of the Regulations, the protesters and the media had the right to be present in the permitted hunting area. The constitutional implication does not create rights. It merely invalidates laws that improperly impair a person's freedom to communicate political and government matters relating to the Commonwealth to other members of the Australian community. It gave the protesters no right to enter the hunting area. That means that, unless the common law or Victorian statute law gave them a right to enter that area, it was the lack of that right, and not the Regulations, that destroyed their opportunity to make their political protest. The argument for both parties assumed, however, that, in the absence of the Regulations, the plaintiff and others were entitled to enter the permitted hunting area to make their protests. Because of this assumption, the proper course is to proceed on the basis that the Regulations and not the proprietary rights of the Crown or the operation of the general law prevented access to the hunting area.
For the plaintiff to establish that the Regulations infringed the constitutional implication, however, it is not enough that he has shown that they prevented him and others from communicating with the public on a political matter. He must also show: (i) that that political matter related to the operation of the system of representative and responsible government provided for in the Constitution; and (ii) that the Regulations were not reasonably appropriate and adapted to a legitimate end that was compatible with the freedom of communication concerning that system of government.
It is not easy to see a connection between the message that the protesters wished to send to the public of Victoria and the freedom of communication protected by the Constitution. It seems remote from choosing members of the Senate or House of Representatives or the conduct of the federal government. But the plaintiff seeks to meet an adverse conclusion on this point by contending that the Victorian Constitution contains an implication that protects freedom of communication on political and government matters concerning the State of Victoria. If this contention is correct, then it would not matter that the Regulations do not infringe the implication of freedom of communication arising from the text and structure of the Constitution. In that case, the only issue left in the demurrer would be whether the Regulations were reasonably appropriate and adapted to serving a legitimate end compatible with the maintenance of the system of government prescribed by the Victorian Constitution. I am of the view that the Regulations were reasonably appropriate and adapted to serving an end that was compatible with freedom of communication concerning the system of government prescribed by the Constitution or, if it is relevant, the Victorian Constitution. It is therefore unnecessary to determine whether the Victorian Constitution contains an implication identical or similar to that contained in the Constitution. It is equally unnecessary to determine whether the intended protests of the plaintiff and others related to matters concerning federal political or government matters.
Were the Regulations compatible with the freedom of communication concerning the constitutionally prescribed system of government?
In accordance with Guideline 6(b)(i) of the Guidelines issued pursuant to the Subordinate Legislation Act 1962 Vict (s 11), reg 1 declared the objectives of the Regulations. Paragraph 1(a) stated that one of the objectives was to "ensure a greater degree of safety of persons in hunting areas during the open season for duck in 1994". On their face, regs 5 and 6 give effect to this objective. According to the statement of claim, the plaintiff "has on his own behalf and with other persons for several years publicly expressed concern about, and actively protested about, the laws policies and practices in Victoria which enable the practice of duck-shooting to be pursued in the State of Victoria". Confrontations between protesters such as the plaintiff and shooters were therefore a likely, almost inevitable, outcome of the decision to declare an open season for duck shooting in 1994. In a context where it was likely that protesters would seek to rescue injured birds, gather information about the number of birds shot and injured, and photograph and identify shooters and unlawfully shot species, the Executive government of Victoria was entitled to regard the prospect of injury to life and limb from confrontations as far from fanciful. Furthermore, the regulation of duck shooting and the areas where it takes place and the maintenance of public safety are all ends that are compatible with freedom of communication concerning the system of government prescribed by the Constitution and the Victorian Constitution. That being so, the Regulations were designed to achieve ends that were compatible with that freedom. But were they reasonably appropriate and adapted to achieving such ends?
In my view, reg 6 was reasonably appropriate and adapted to achieving the safety of persons in hunting areas. It prevented any person other than the holder of a valid game licence from approaching "within a distance of less than 5 m, any person who [was] the holder of a valid game licence". Such a direction plainly reduced the chance of physical confrontations between protesters and shooters and thereby promoted the safety of persons in hunting areas.
The validity of reg 5 is not so clear. The plaintiff did not impute lack of bona fides to the Victorian government in promulgating that regulation. Instead, he contended that, rather than a blanket prohibition on entry, the Regulations should have used such means as would promote safety but at the same time leave unlicensed persons free to protest. This contention has much force although, apart from pointing to the terms of reg 6, the plaintiff did not identify what these means might be. I think, however, that it was open to the Executive government to take the view that, the issue of duck shooting being highly emotional and human nature being what it is, once the protesters were allowed into the hunting area, no measure could reasonably be taken to prevent angry and probably violent confrontations between them and the shooters. Once that conclusion was reached, the blanket prohibition was a measure reasonably calculated to provide safety for the shooters and those who wished to protest against the shooting of ducks. That being so, reg 5 was valid.
The demurrer to the statement of claim should be allowed.
The hearing of the demurrer was lengthened by the intervention of numerous interveners. It was a condition of intervention for some of them that the intervener bear the costs of the parties occasioned by the intervention. In those circumstances, the appropriate order is that the plaintiff should pay the defendant's costs of the demurrer limited to one day's hearing.
Mr Laurence Levy (the plaintiff) seeks a declaration that reg 5 of the Wildlife (Game) (Hunting Season) Regulations 1994 Vict (the regulations) made pursuant to legislation enacted by the Victorian Parliament [114] is invalid. He seeks a consequential declaration that criminal charges laid against him under reg 5 are unlawful. An injunction to restrain the defendants from proceeding to prosecution of those charges is also sought. The defendants have responded with a demurrer to the plaintiff's Further Amended Statement of Claim (the statement of claim).
By this means, a number of questions have been presented to this Court concerning the implied freedom of political communication said to be derived both from the federal and State Constitutions and from the rights of the people upheld by the common law. By their demurrer, the defendants seek to stop the plaintiff's proceedings [115] .
Overcoming initial reluctance, the defendants made an application to challenge the holdings of this Court in Theophanous v Herald & Weekly Times Ltd [116] and Stephens v West Australian Newspapers Ltd [117] . Their application occasioned the adjournment of the proceedings, the provision of notices under the Judiciary Act 1903 Cth and the participation in the resumed hearing of a large number of governments, other interveners and amici curiae. In the event, although the participation of these interests was relevant to the decision of the Court in proceedings heard concurrently [118] , it proved unnecessary for this case to reopen those decisions. The demurrer may be dealt with upon the narrower basis which both the plaintiff and the defendants were first inclined to present.
Upon demurrer, the facts pleaded in the statement of claim are accepted for the purpose of considering the legal sufficiency of those facts to support the remedy asserted.
According to the statement of claim, the plaintiff, pursuant to regs 5(1)(a) and 5(1)(b) of the regulations, was charged on 7 June 1994 with summary offences. The particulars of the charges stated that the plaintiff, on 19 and 20 March 1994, entered a permitted hunting area during prohibited times without holding an authority to do so (regs 5(1)(a) and (b)). The plaintiff pleads that he did not hold a "valid game licence authorised for the hunting or taking of game birds (including duck)" (a "valid game licence") (reg 5(2)). He states that, with other persons, he has for several years "publicly expressed concern and actively protested about, the laws policies and practices in Victoria which enable the practice of duck-shooting". The statement of claim goes on to assert that proclamations made under the regulations [119] declared an area in and around Lake Buloke in Victoria a "permitted hunting area"; prohibited the plaintiff from entering the area between stipulated hours on 18, 19 and 20 March 1994 unless holding a valid game licence; and authorised there, during the specified period, the shooting by persons holding a valid game licence of game birds, including duck.
The statement of claim goes on to identify what are called "the plaintiff's purposes" [120] . The plaintiff pleads that such purposes were "inhibited, prevented, or rendered unlawful" by the regulations. He avers that, during the proclaimed period and within the proclaimed area, many persons holding valid game licences shot, injured or killed hundreds of birds, failed immediately to kill injured birds, failed to render aid to protected birds and shot protected species. He pleads that he entered the area during the prohibited period for his stated purposes and was intercepted by police officers who removed him against his will and thereby prevented him from pursuing such purposes.
On the basis of the foregoing facts, the plaintiff pleads that he had been "unreasonably inhibited from, or substantially or wholly prevented from, pursuing his said purposes, save by exposing himself to being charged, tried and convicted of the offences" under the regulations. He then pleads that, by virtue of the Australian Constitution and the provisions of the Constitution Act 1975 Vict (the Victorian Constitution) implied constitutional freedoms limited the powers of the Parliament of Victoria. The regulations were invalid being beyond power. They prevented the plaintiff from pursuing his "freedom or positive right" to speak publicly or to protest by physical activity about the regulations and the "policies underlying" them and the practices and activities of authorised game shooters. They also prevented him from upholding the law. They "unnecessarily restrict[ed] the ability of the people of Victoria forming or exercising informed political judgments about the stance of the Victorian Government in continuing to support or permit duck shooting".
Whilst conceding that reasonable limits might be prescribed by law to the extent that they were "reasonably and appropriately adapted to achieve a purpose otherwise lawfully within the scope of State legislative power", the statement of claim ends with an assertion that each of the regulations was:
not a law within such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society; or alternatively not a law which is reasonably and appropriately adapted to achieve a purpose otherwise lawfully within the scope of State legislative power. The plaintiff accordingly pleads that the regulations are ultra vires; that he has committed no offence; and that the charges brought against him are invalid and ineffective and should be enjoined.
The defendants are the State of Victoria and the two police officers involved in the plaintiff's apprehension. They have pleaded to the statement of claim and demurred. At common law this course was not permitted. However, it became possible by statute, if leave were granted [121] . Under the Rules of this Court it may be done without leave (O 26, r 5(1)).
The defendants demurred to the whole of the amended statement of claim. The grounds of demurrer are set out in the reasons of Brennan CJ. I will not repeat them.
At the hearing, the plaintiff mounted a strong attack on the adequacy of the original grounds of demurrer, conceding the admissibility and relevance only of the third [par (c)]. In the result the defendants sought, and were granted, leave to amend the demurrer to add a reference to the Victorian Constitution [par (d)] and to add a new ground designed to present directly the substance of the legal flaw said to be fatal to the plaintiff's claim. The additional ground [par (ca)], which is crucial, reads:
[T]he [regulations] are not invalid by reason of any implied freedom contained in the Commonwealth Constitution or in the Constitution Act 1975 Vic.
The plaintiff's case was addressed primarily to the substance of his legal dispute with the defendants. It concerned secondarily, a pleading issue arising from the terms of the demurrer.
As to the substance, the plaintiff asked this Court to extend its recent holdings on freedom of political communication so as to strike down reg 5. For that purpose he proposed the development of a body of jurisprudence akin to that fashioned in the United States of America out of the First Amendment to that country's constitution. There, the marches and bus rides for racial desegregation [122] or the protests against involvement in the war in Vietnam [123] were typically conducted in public places. They were upheld by the courts, notwithstanding the fact that they often presented challenges to the safety and tranquillity of the participants, onlookers and the general public. Such challenges had to be accepted as an inescapable feature of constitutionally protected communication [124] . The plaintiff argued that the same freedom of political communication existed in Australia. By analogy, it protected his endeavour to persuade the people of Victoria and, through them, their representatives in Parliament, to change the law of Victoria to prohibit duck shooting. Legislative changes had been enacted in other Australian States [125] . According to the plaintiff, only by political communication would similar changes be secured in Victoria.
The plaintiff submitted that political communication in Australia today necessarily engages the mass media of communication. The political debates in Canada concerning prohibition of the slaughter of cub seals was given great impetus by the confrontational conduct of protesters and the presence of media pictures showing the act of clubbing and seal blood on the ice. Similarly, Australian (and specifically Victorian) political communication about duck shooting required the facility of observation and confrontation by protesters and the presence of the mass media bringing their statements and other actions to the attention of fellow citizens.
These being the plaintiff's objectives and basic arguments, he urged this Court to uphold his statement of claim. He disclaimed any suggested reliance upon a "free-standing" constitutional right to free expression [126] . In this sense, he sought to circumvent the debates [127] which had followed the decisions of this Court in Theophanous [128] and Stephens [129] . As far as he was concerned, his appeal was to the earlier holdings in Australian Capital Television Pty Ltd v The Commonwealth [130] and Nationwide News Pty Ltd v Wills [131] . His was not a claim of a disembodied right personal to him. It was one for relief from a law of the State of Victoria said to be invalid because it was in conflict with the constitutionally protected freedom of communication upon political and governmental matters.
To invalidate the regulation in question, the plaintiff relied upon three legal foundations for the asserted freedom. These were, in summary:
An alternative foundation was advanced. This was that the freedom of political communication which limited the lawmaking powers of the Federal Parliament necessarily affected a State Parliament's legislative powers as well, in so far as such exercise purported to affect political discussion about State matters. At least in a country such as Australia, political communication was said to be "indivisible" [135] . Each lobbying group might target federal and State politicians and political parties seen as aligned to causes antagonistic to theirs. No State Parliament could enact or authorise a law which impermissibly curtailed or restricted political communication because this was protected from inhibiting legislation: federal and State alike.
The plaintiff relied upon separate arguments addressed to the demurrer. He did so in the hope of persuading this Court that his claim, as pleaded, should be sent for trial to permit an exploration of the evidence. He argued that such evidence would throw light upon the evaluation inherent in deciding whether the regulations permissibly or impermissibly diminished the constitutional freedom of political communication upon which he relied to invalidate reg 5.
The plaintiff's claims, and the foundations upon which he rested them, were contested by the defendants. However, certain matters were not disputed. It is useful to collect these:
Although the first declaration sought was that the regulations in their entirety were invalid and inoperative, the plaintiff confined his argument, as presented, to an attack on reg 5. It was ultimately accepted that reg 6, applicable during the whole of the open season for duck, fixing a distance (5 m) within which a person might not approach a holder of a valid game licence, was within the permissible exceptions to the asserted freedom of communication. Regulation 6 could arguably be justified by reference to the protection of public safety. Confining the plaintiff's argument to reg 5 permitted him to concentrate upon the contention that a blanket prohibition upon entry to a permitted hunting area in the two days specified [143] was so excessive and disproportionate to the asserted protection of safety as to fall outside the permissible burdens upon the constitutional freedom. The only exemptions recognised by reg 5 were for persons holding a valid game licence (reg 5(2)) or designated officers of the Department of Wildlife (reg 7).
The plaintiff did not challenge the validity of reg 5 as an exercise of the regulation-making power except upon constitutional grounds. Earlier, he had made a challenge to the validity of the regulation as being outside the regulation-making power. That challenge was dismissed by the Supreme Court of Victoria. The arguments were not repeated in this Court.
Nor did the plaintiff contest the assertion [144] that one objective of reg 5 was to "ensure a greater degree of safety of persons in hunting areas during the open season for duck". He did not challenge the bona fides of this statement contained in the regulations. There was no submission, in the statement of claim or otherwise, that the objective of protecting safety was false or a pretence in a regulation which was, in truth, made in order to stifle public debate. The plaintiff eschewed the assertion of an ulterior purpose. His concern was about the effect of the regulation, not the purpose or motive of the rule-maker in making it.
As a general proposition, it may be accepted that, in Australia, a law for the safety of members of the public is (save for those few matters expressly reserved to the exclusive legislative power of the Federal Parliament) prima facie a permissible subject matter of State legislation and regulations validly made by the Executive thereunder. It may also be accepted that such legislation or regulations may incidentally have an impact on communication generally and political communication in particular. Where a constitutional freedom is established, the question becomes whether the impact is permissible or impermissible. Both sides agreed that this was the ultimate issue for the demurrer.
There was a dispute about the background materials with which this Court should consider the demurrer. Initially, in addition to the pleading, legislation and regulations relied upon the defendants included, in materials placed before the Court, a Regulatory Impact Statement made in relation to the Wildlife (Game) (Human Safety) Regulations 1996 [145] . This document deals with regulations made after reg 5. However, it analyses the assessed costs and suggested benefits of regulation. It contains an evaluation of alternative means which could be adopted instead of the total exclusion of non-authorised persons during the opening weekend of the open season. It gives reasons why these were not practicable. The plaintiff contested the document. For his part, he sought to place before the Court a large bundle of news clippings and related material designed, presumably, to show the political controversy of duck shooting, the open season, shooting generally and wildlife conservation. In the end, the defendants did not press the Impact Statement. The plaintiff confined himself to the submission that, in a general way, the Court could take judicial notice (as I believe it can) of the controversy about the subject matters referred to in the statement of claim. Both parties ultimately accepted the obligation to defend their respective positions within the four corners of the pleadings filed, as amended and clarified during argument.
It was common ground that the regulations applied to "permitted hunting area[s] (reg 4)" being Crown land comprising designated State Game Reserves including the one at which the plaintiff was arrested. The case proceeded on the footing that, but for reg 5, the plaintiff and his supporters and the media were entitled to enter the designated hunting area and engage there in or in connection with the plaintiff's stated purposes.
The respondents accepted that the special provisions for the amendment of "entrenched" sections of the Victorian Constitution (s 18(2)) were not complied with either in the enactment of the regulation-making power under the applicable Victorian statutes [146] or in the making of reg 5 itself. The plaintiff accepted, as applicable legislation requires [147] , that the regulation was to be construed, so far as possible, so as not to exceed the legislative powers of the Victorian Parliament.
The plaintiff also accepted that neither in its terms nor in its effect did reg 5 prevent all communication, by him or others, espousing their political opinions. However, he contended that the inhibitions imposed by the regulation were expressed in terms which were impermissibly broad and constitutionally invalid.
A threshold question arises as to whether, upon any view, conduct of the kind pleaded by the plaintiff could amount to constitutionally protected communication. Was it the kind of activity which this Court has held to be necessarily implicit in the text and structure of the Australian Constitution? Could conduct, as distinct from words, ever amount to the kind of "communication" which an implied restriction on law-making would protect?
The plaintiff relied upon the inhibition which the regulation placed upon his words, namely dialogue with opponents, supporters, the media and, through them, the members of Parliament and electors of Victoria. But beyond that he relied on the limitations which the regulation imposed on his actions. These were not only limitations upon his movement within the Commonwealth. They also extended to limitations upon protest, assembly, demonstration, agitation and the other activities which exclusion from the proclaimed area would totally prevent in the critical first days of the open season for duck shooting.
The conceptual foundation for the constitutional freedom of communication in Australia is different from that derived from the First Amendment to the United States Constitution, as it has been interpreted. Nevertheless, both sides and the interveners took this Court to United States authority. It was suggested by the plaintiff that this would establish that communication on political and governmental matters included non-verbal communication of the kind relied on by him. United States authority was also propounded to support the proposition that legislative derogations from such a constitutional freedom must be proportional to, or otherwise permissible for, the purposes of the derogation taking into account the importance of upholding the freedom of political communication by limiting the power of a Parliament to make laws inconsistent with it.
A rudimentary knowledge of human behaviour teaches that people communicate ideas and opinions by means other than words spoken or written. Lifting a flag in battle, raising a hand against advancing tanks, wearing symbols of dissent, participating in a silent vigil, public prayer and meditation, turning away from a speaker, or even boycotting a big public event clearly constitutes political communication although not a single word is uttered. The constitutionally protected freedom of communication in Australia must therefore go beyond words. But where may the boundary be set to put limits so that the constitutional protection is not debased by extending it to every activity of ordinary life? This is an issue which has been examined by the Supreme Court of the United States in a number of cases concerned with the First and Fourteenth Amendments to the United States Constitution. It is useful to observe the way in which the problem has been addressed, whilst keeping in mind the different constitutional foundations of the United States jurisprudence [148] .
In Perry Education Association v Perry Local Educators' Association [149] the Supreme Court of the United States rejected an argument that differential access provided to rival trade unions in an inter-school mail system constituted an impermissible content discrimination or a fundamental burden on the right of the dissidents to communicate with teachers [150] . The opinion of the Court evaluated the legislation and conduct said to conflict with the constitutional right by reference to the nature of the public property in question, to which individuals were barred entry although they wished to engage there in expressive activity. Such property was divided into three categories [151] .
The first category was the "quintessential public forums". To enforce a content based exclusion in such a place, the State "must show that its regulation is necessary to serve a compelling [S]tate interest and that it is narrowly drawn to achieve that end" [152] . The State might enforce regulations "of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication" [153] .
The second category was public property which the State has opened for use by the public as a place of expressive activity. There, "[a]lthough a State is not required to indefinitely retain the open character as long as it does so it is bound by the same standards as apply in a traditional public forum" [154] .
The third category was other public property. Such a place was held to be governed "by different standards" [155] . There [156] :
[T]he State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view. As we have stated on several occasions [t]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated. 1. Perry Education Association (1983) 460 US 37 at 46. 2. Perry Education Association (1983) 460 US 37 at 46 (citations deleted) referring to United States Postal Service v Council of Greenburgh Civic Associations (1981) 453 US 114 at 129-130; Greer v Spock (1976) 424 US 828 at 836; Adderley v Florida (1966) 385 US 39 at 47.
In Cornelius v NAACP Legal Defense and Educational Fund Inc [157] , the Perry classification was applied in proceedings in which free speech rights were invoked to challenge a decision of the Executive to exclude certain charities from a fund-raising drive aimed at federal employees in their work places. As in Perry, there were sharp divisions in the Supreme Court [158] . The government property to which the charity drive was directed was classified as a non-public forum. In such a place, the Court said, control over access was permissible if reasonable for the purposes of the place and "viewpoint neutral". The Court considered that excluding the respondents from government property was within the entitlement of the Executive, as a means of ensuring peace in the federal workplace to exclude those who might reasonably be considered as endangering the peace [159] . In dissent, Blackmun J (with whom Brennan J concurred) accepted the classification in Perry. However, he suggested that the line between public and non-public forums "may blur at the edges" [160] . Blackmun J was not convinced that the need to avoid controversy was a compelling State interest in that case justifying the exclusion of the respondents from public property during the charity drive. His Honour said [161] :
The managers of the theatre in Southeastern Promotions no doubt thought that the exclusion of the rock musical Hair was necessary to avoid controversy [162] ; and the school officials in Tinker thought their exclusion of students protesting the activities of the United States in Vietnam was necessary to avoid controversy [163] . Yet in those cases, both of which involved limited public forums, the Court did not accept the mere avoidance of controversy as a compelling governmental interest. 1. (1985) 473 US 788. 2. The opinion of the Court was given by O'Connor J (Burger CJ, White and Rehnquist JJ concurring). Dissenting opinions were written by Blackmun J (joined by Brennan J) and by Stevens J. 3. Cornelius (1985) 473 US 788 at 810. 4. Cornelius (1985) 473 US 788 at 819. 5. Cornelius (1985) 473 US 788 at 829 (citations deleted). 6. Southeastern Promotions (1975) 420 US 546 at 563-564. 7. Tinker (1969) 393 US 503 at 509-510.
Several other decisions in this United States series were called to this Court's attention. They range from a case challenging a municipal ordinance prohibiting the posting of political campaign signs on public property [164] , to another involving access to federal airports for the purpose of soliciting money [165] . The latest decision is Schenck v Pro Choice Network of Western New York [166] . In that case, a group of medical practitioners offering abortion services sought to enjoin protesters from engaging in blockades and other disruptive conduct outside their clinics. The protesters' conduct included marching, kneeling, standing or lying in driveways, doorways and elsewhere to prevent employees and patients entering the clinics. A temporary restraining order was challenged as violating the protesters' First Amendment rights to free speech. This argument was rejected in the District Court and on appeal by the Court of Appeals. The case illustrates the difficulties which courts face in separating permissible from impermissible conduct by reference to constitutional freedoms expressed in very general terms.
In Schenck , the Supreme Court of the United States upheld "fixed buffer zones". However, a "floating buffer zone" was struck down because it burdened free speech more than was necessary to serve the relevant governmental interests [167] . Scalia J (with whom Kennedy and Thomas JJ concurred) dissented, citing Boos v Barry [168] :
[A]s a general matter, we have indicated that in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment. However, the majority considered that the defined buffer zones could be upheld by reliance "on the significant governmental interest in public safety" [169] . This interest was "reasonable" and properly to be taken into account in assessing the protesters' constitutional arguments. Scalia J rejected the reliance on "public safety" largely because of the way in which the case had been argued. However, he specifically acknowledged [170] : We have in our state and federal systems a specific entity charged with responsibility for initiating action to guard the public safety. It is called the Executive Branch. When the public safety is threatened, that Branch is empowered, by invoking judicial action and by other means, to provide protection. 1. cf Madsen v Women's Health Center Inc (1994) 512 US 753. 2. (1988) 485 US 312 at 322, quoted in Schenck (1997) 137 Law Ed 2d 1 at 26-27 (internal quotation marks omitted); see also Madsen v Women's Health Center Inc (1994) 512 US 753 at 765. 3. Schenck (1997) 137 Law Ed 2d 1 at 20-21, per Rehnquist CJ for the Court. 4. Schenck (1997) 137 Law Ed 2d 1 at 31, per Scalia J (Kennedy and Thomas JJ concurring).
I have mentioned these cases from the United States, although the constitutional setting is different, to illustrate a number of points. The decisions recognise that political communication may be (and often is) expressed in non-verbal ways. Political protest as well as the more general communication of facts and opinions may occur otherwise than by words. This is as true in Australia as in the United States. Therefore, the constitutionally protected freedom of communication on political and governmental matters in Australia extends to non-verbal conduct as well as to things said and written. Nevertheless, even in jurisdictions where there is a well-established, individually enforceable "right" to free expression, exceptions and limitations have been accepted. One ground of exception has been a protection of public safety. The drawing of lines is difficult. However it is necessary, as Schenck illustrates. It would be surprising if the legal protection to protesters' communication were larger in Australia than it has been held to be in the United States where the constitutional foundation is a personal right enforceable by the individual affected.
In determining the scope of the constitutionally protected freedom of communication in Australia, it seems reasonable to take into consideration at least some of the matters mentioned in the United States decisions. Relevantly, the place affected by the impugned law in the present case was not a traditional, or designated, forum for public communication [171] . It was no "Hyde Park". The impugned regulation had an accepted purpose of protecting the public's safety. Its bona fides was conceded. It was not suggested that the regulation was a deliberate "effort to suppress expression" [172] . However, the question remains whether the regulation was such a burden on the constitutionally protected freedom as arguably to entitle the plaintiff to relief so that his action is legally viable and should be permitted to go ahead.
The integration of social, economic and political matters
So far I have stated the bases upon which the plaintiff sought to argue his claim. The defendants submitted that the limitations on legislative power implied by the Australian Constitution had no application to the Victorian Parliament. Such a flow-on of legislative inhibition could not be derived either from the specific references to State Parliaments in the Australian Constitution [173] alone or from the suggested indivisibility of political discussion, federal and State, in contemporary Australia [174] .
As far as the Victorian Constitution was concerned, the defendants pointed to the large grant of legislative power appearing in that instrument. In fact, it could hardly have been expressed in more general terms [175] :
The Parliament shall have power to make laws in and for Victoria in all cases whatsoever. Such a grant has been held to be plenary [176] . The Victorian Constitution is not the kind of rigid document controlling, as the Australian Constitution does, all laws made by or under the authority of the Parliament established by it. The suggested "entrenchment" of the elected character of the Parliament of Victoria was also contested [177] . However, it was not disputed by the defendants that the Victorian Parliament, either as originally established [178] or pursuant to the Victorian Constitution, was one envisaging a system of representative government. It was submitted that this broad requirement was fulfilled by Parliament when it had enacted the legislation under which reg 5 was made. At least in a case such as the present, no implied restraint on legislative power applied to invalidate a law so remote from the suggested purposes of the restraint [179] . 1. Victorian Constitution, s 16. 2. R v Burah (1878) 3 App Cas 889 at 904; McCawley v The King [1920] AC 691; Union Steamship Co of Australia v King (1988) 166 CLR 1 at 9; cf ICAC v Cornwall (1993) 38 NSWLR 207 at 253. 3. The entrenchment may be open to question in light of s 18(4)(a) of the Victorian Constitution. 4. 18 & 19 Vict, c 55, 1855 Imp. 5. The implied restraints upon State Parliaments have been considered in Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 233, 236, 257; see also Muldowney v South Australia (1996) 186 CLR 352 at 367, 373-374; McGinty v Western Australia (1996) 186 CLR 140 at 176-177, 298-299; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
The defendants also contested the plaintiff's appeal to the sovereignty of the people as a limitation on the legislative power of the Victorian Parliament. They pointed out that, under the Victorian Constitution (unlike its federal counterpart) any provision of the Constitution could be amended without the direct involvement of the people. They argued that this fact made it impossible to apply to Victoria the suggested limitations said to be derived from popular sovereignty. Whatever may be the case elsewhere (and there are many problems) [180] the concept of fundamental rights of the people which lie so deep that a Parliament cannot remove them, seems specially inapplicable to a constitution such as the Victorian Constitution and a parliament such as the Victorian Parliament.
For the purposes of the demurrer, it is possible to put these and other difficulties to one side. The defendants were content to assume, that the powers of the Victorian Parliament to enact laws which impeded freedom of discussion of matters of political or governmental concern in the State were subject to some constitutional limitations [181] . In Lange v Australian Broadcasting Corporation [182] , this Court referred to the increasing integration of social, economic and political matters in Australia. Because of such integration, the implication, derived from the Australian Constitution, may also protect political discussion in relation to all levels of government, including State Government. For the purposes of the demurrer, I am prepared to assume that the powers of the Victorian Parliament to enact laws which impede freedom of discussion on matters of political and governmental concern in the State are subject to the same limitations as apply to the laws of the Federal Parliament. Such an assumption is neither fanciful nor unreasonable. However, the defendants submitted that even if such a limitation were established, reg 5 was nonetheless valid.
A number of general propositions may be derived from this Court's authority concerning the approach to be taken to a suggested conflict between a constitutional freedom and a law which is alleged to be an impermissible burden on the exercise of that freedom.
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 s 128 for submitting a proposed amendment of the Constitution to the informed consent of the people If the first question is answered "yes" and the second is answered "no", the law is invalid. 1. (1997) 189 CLR 520 at 567-568. Note that at 561-562 the Court acknowledged the different formulae which had been adopted within the Court in relation to the second step but, without resolving the differences, used the "appropriate and adapted" formula.
When the facts pleaded by the plaintiff in his statement of claim are measured against the foregoing principles the relief sought from the operation of reg 5 cannot be sustained.
It may be conceded that the effect of reg 5 is to inhibit political communication to some degree. However, it cannot be argued that it does so in a way inconsistent with the freedom of communication implicit in the system of representative government for which the Australian Constitution and the Victorian Constitution provide.
There is a plainly legitimate interest of the Victorian Parliament, and laws made by or under its authority, in the protection of the safety of the public. That interest is expressly invoked to support the law challenged here. Commonsense suggests that safety of human beings could indeed be put at risk by confrontation between angry protesters and other persons armed with and using guns.
Nor is this a case where the legislation has, by its terms, specifically targeted the idea or message so as to require a "compelling justification" [203] . Even assuming that the impugned law was inconsistent with the maintenance and operation of the representative government provided by the Constitution, it cannot be concluded that it is not "appropriate and adapted" to the fulfilment of the legitimate purpose of State law-making, namely the protection of public safety. Neither is it disproportionate to the achievement of that object. Nor is it outside a margin of appreciation (assuming that such exists) reserved to the law-maker to balance the protection of public safety within a constitutional environment which also upholds freedom of communication upon governmental and political matters.
The plaintiff asserted that reg 5 was disproportionate. Instead of improving safety in a way which would preserve the freedom of political protest, it imposed a blanket prohibition. To that prohibition, it attached criminal sanctions. The consequence was inevitably, and predictably, an effective exclusion of first-hand observers and media coverage to communicate, in the most persuasive way, the political message of the plaintiff and his supporters. This argument is unconvincing. No prohibition was imposed upon the plaintiff or those of like minds during the time specified in reg 5, or at any other time, to engage in protest so long as it was outside the area designated. Photographs, posters and television film from earlier years would be readily available to illustrate their protests. The places and times specified in the regulation were appropriate to the peak period of danger to public safety, namely the opening days of the duck shooting season. The duration of the prohibition was relatively short. The places were confined to those at maximum risk. Other places, including those at or near private property, were not restricted. True, some of the effectiveness of the protest would be lost by reason of the prohibition. But upon no view of the facts pleaded would the inhibition upon the freedom of communication upon political and governmental matters be such as to render reg 5 invalid.
Therefore, the challenged law does not impermissibly restrict the constitutionally protected freedom. The regulation is valid. Prima facie the demurrer must succeed.
The plaintiff, alternatively, argued a pleading point. He submitted a number of criticisms of the original grounds of demurrer. These submissions had merit. The first and second grounds of demurrer did not respond to the statement of claim in such a way as to provide a legal answer to it. Nor did the original language of the fourth ground meet the ways in which the plaintiff put his assertion concerning the implied constitutional freedoms which he invoked. There is no point now (save possibly for costs) in exploring these objections. The defendants, without resistance, were permitted to amend their demurrer. The added ground clearly tenders for decision the defendants' essential point.
The plaintiff alternatively submitted that a demurrer was the wrong remedy. He argued that, in the nature of any dispute which involved the evaluative exercise of judging whether or not an impugned law permissibly or impermissibly infringed the constitutionally protected freedom, evidence would need to be considered. It would be relevant in judging the appropriateness of the law, the proportionality of the inhibition, or whether the impugned law fell within a "margin of appreciation" which would be accorded by the Court to a Parliament, representative of the people, acting as such.
The jurisprudence on demurrers is covered with cobwebs. After the narrative form of pleading was adopted by Australian courts following the abolition of common law pleading it has been a subject but rarely considered by the courts. In South Australia v The Commonwealth [204] Dixon CJ explained, in relation to a demurrer in this Court, that it presented certain difficulties because of the adoption by the Court of the narrative and not the common law system of pleading.
I mean no disrespect to the pleader of Mr Levy's statement of claim when I say, adapting Dixon CJ, that it does not "contain and contain only a statement of the material facts on which the party pleading relies for his claim and not the evidence by which they are to be proved". [205] The pleading is discursive, as has become a common modern practice. Nevertheless, in the context of the Rules of this Court and its practice, the pleading objection should not succeed.
Although to one brought up in the old system of pleading it seems a "strange way to determine a demurrer" [206] , nevertheless in the manner in which these proceedings have been conducted, the statement of claim pleaded and the demurrer successively amended, I believe that the Court should respond to the substance of the issue tendered. In determining constitutional challenges the procedure of demurrer has been found useful to this Court since its earliest days [207] . It is now too late to revive the rigidities of demurrer practice at common law.
The statement of claim, enhanced by the terms of the legislation and regulations referred to, discarding irrelevant adornment but adding judicial notice of matters within common knowledge, presents a perfectly adequate foundation for deciding whether the regulation attacked by the plaintiff is, or is not, invalid by reason of the constitutionally protected freedom. No further elaboration by evidence could improve the plaintiff's case. Addressing the facts essential to the plaintiff's claims I consider that the Court can both safely and fairly determine the demurrer. The pleading point should therefore be rejected.
Refusal of leave to intervene to an industrial organisation
During the adjourned hearing, the Court accepted the interventions of the States and the Northern Territory pursuant to s 78A of the Judiciary Act 1903 Cth. It also allowed a large number of media interests conditional leave to intervene, although their concerns were to defend the holdings in Theophanous and Stephens and although Mr Levy's case was not a defamation action at all. The Media, Entertainment and Arts Alliance, an industrial organisation representing journalists, sought to intervene by senior and junior counsel, but this application was denied. The Court did, however, receive written submissions from that body as amicus curiae. It also received a written submission from the Australian Press Council, which sought to be heard only as amicus curiae.
My own view was that the Media, Entertainment and Arts Alliance should have had the same limited rights allowed to the other interveners and on the same conditions, which it was willing to accept. It was not clear to me why media proprietors should have been heard as interveners but submissions on behalf of a body representing practising journalists should not. Journalists are sometimes sued in relation to the exercise of the constitutionally protected freedom in issue. Their professional and personal reputations may be at stake, as might their liberty if they decline to name sources notwithstanding court orders to do so. They have practical experience in the operation of the law of defamation. They have a real stake in its content, not wholly intellectual.
Financial and other property interests are not, or should not be, the only interests to which this Court pays heed when determining the existence and scope of a constitutional freedom of communication. For my own part, I would have permitted the intervention of the Media, Entertainment and Arts Alliance. I would have allowed it upon the same conditions as were imposed upon the media proprietors. I would have confined its counsel to precisely the same time limit in oral submissions - no more, no less.
As a result of the non governmental applications to intervene, these proceedings occasioned argument over the role of interveners and amici curiae in this Court. I will not extend these reasons with a detailed elaboration of my opinion on these questions. However, in light of the foregoing difference of approach I will express my opinion briefly.
For good reason, this Court should maintain a tight rein on interventions. Where they are allowed, the Court should impose terms which protect the parties from the costs and other burdens which interventions may occasion. However, some of the rigidities of earlier procedural restrictions are not now appropriate. This is especially so because of this Court's function of finally declaring the law of Australia in a particular case for application to all such cases. The acknowledgment of the fact that courts, especially this Court, have unavoidable choices to make in finding and declaring the law, makes it appropriate, in some cases at least, to hear from a broader range of interveners and amici curiae than would have appeared proper when the declaratory theory of the judicial function was unquestioningly accepted. The opinion of Dixon J, a committed proponent of that theory, was stated in Australian Railways Union v Victoria Railways Commissioners [208] . It is cited by Brennan CJ in this case. However, since those words were written, this Court has become the final court of appeal for Australia. There has also developed a growing appreciation that finding the law in a particular case is far from a mechanical task. It often involves the elucidation of complex questions of legal principle and legal policy as well as of decided authority [209] . This appreciation has inevitable consequences for the methodology of the Court. Those consequences remain to be fully worked out.
In the United States of America and Canada, the practice of hearing submissions from interveners and amici curiae is well established. Such practice is particularly common where matters of general public interest are being heard in the higher appellate courts [210] . In recent years, some Australian courts have also favoured a more liberal approach to permitting interveners and amici [211] . So far, that course has not recommended itself to this Court.
There is no need for undue concern about adopting a broader approach. The Court itself retains full control over its procedures. It will always protect and respect the primacy of the parties. Costs and other inhibitions and risks will, almost always, discourage officious busybodies. Those who persist can usually be recognised and easily rebuffed. The submissions of interveners and amici curiae will typically be conveyed, for the most part, in writing. But sometimes oral argument by them will be useful to the Court. Such interests may occasionally have perspectives which help the Court to see a problem in a context larger than that which the parties are willing, or able, to offer. That wider context is particularly appropriate to an ultimate national appellate court. It is especially relevant to a constitutional case.
Nothing in the Australian Constitution prevents such a procedural course. Conforming to the Constitution, this Court should adapt its procedures, particularly in constitutional cases or where large issues of legal principle and legal policy are at stake, to ensure that its eventual opinions on contested legal questions are informed by relevant submissions and enlivened by appropriate materials.
In the present matter, I would have allowed the Council for Civil Liberties and other relevant bodies, had they applied, to make brief submissions on the constitutional controversy. Such submissions would have been subject to the same strict conditions as applied to other interveners and amici. If necessary, the relevant bodies could have been restricted to written submissions. But I would have allowed them a voice.
The demurrer should be allowed. The plaintiff should pay the defendants' costs of one day of the hearing.
Levy
Victoria
High Court of Australia Brennan CJ Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ Levy v Victoria [1997] HCA 31
what a curious thing it would be in our jurisprudence if because a thing might be considered convenient, and, I will assume for the sake of argument, desirable, therefore you could invent a new jurisdiction and apply it to a matter with which that Court has no concern whatever. 1. [1901] AC 450 at 454.
(1992) 177 CLR 1
(1992) 177 CLR 106
(1994) 182 CLR 104
(1994) 182 CLR 211
(1988) 166 CLR 79
(1994) 182 CLR 272
(1996) 186 CLR 302
(1997) 189 CLR 520
(1962) 108 CLR 130
(1985) 159 CLR 70
(1977) 139 CLR 117
(1961) 106 CLR 406
(1989) 167 CLR 232
(1989) 166 CLR 161
(1959) 102 CLR 280
(1958) 98 CLR 383
(1985) 155 CLR 513
(1949) 80 CLR 65
(1949) 79 CLR 201
(1990) 64 ALJR 530
(1976) 136 CLR 529
(1960) 105 CLR 153
(1930) 44 CLR 319
(1965) 113 CLR 177
(1987) 162 CLR 447
(1969) 122 CLR 177
(1995) 184 CLR 265
(1975) 135 CLR 1
(1996) 186 CLR 352
(1997) 190 CLR 1
(1996) 186 CLR 140
(1988) 166 CLR 1
(1993) 38 NSWLR 207
(1996) 189 CLR 51
(1986) 7 NSWLR 372
(1997) 186 CLR 302
(1996) 187 CLR 579
(1992) 30 NSWLR 307
(1983) 158 CLR 1
(1988) 164 CLR 261
(1903) 1 CLR 13
(1988) 165 CLR 197
(1994) 35 NSWLR 522
(1996) 39 NSWLR 377
(1994) 126 ALR 620