Nationwide News Pty Ltd v Wills - [1992] HCA 46 - HCA 1989 case summary — Zoe

CTHHCA

Nationwide News Pty Ltd v Wills

[1992] HCA 46

High Court of Australia|1989-11-14|Before: McHugh JJ, Toohey JJ

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Source facts

Court

High Court of Australia

Decision date

1989-11-14

Before

McHugh JJ, Toohey JJ

Source

Original judgment source is linked above.

Judgment (275 paragraphs)

[1]

The applicant, Nationwide News Pty. Ltd. ("Nationwide"), did not, and could not, contest the proposition that the grant of legislative power in s. 51(xxxv) is adequate to sustain the establishment of the Commission with its central function of settling interstate industrial disputes by means of conciliation and arbitration. However, Nationwide argued that neither s. 51(xxxv) nor s. 51(xxxix) singly nor the two grants of power in combination authorized the enactment of s. 299(1)(d)(ii). Nationwide conceded that it was necessarily incidental to the establishment of the Commission that it be protected from conduct which would impair the performance of its functions. However, Nationwide argued that the provision is not reasonably incidental to the subject matter of the power conferred by s. 51(xxxv) because the protection goes further than is reasonably necessary, making it an offence for a person to make a true statement or a fair comment about the Commission or one of its members in circumstances in which the public has a legitimate interest in receiving the statement or comment.

[2]

The argument raises a question about the application of s. 51(xxxv) to a matter which is incidental to the subject matter of the power rather than a question about the scope of the incidental power contained in s. 51(xxxix). The distinction between the two is well recognized [6] . Each specific grant of legislative power in the Constitution extends to all matters incidental to the subject matter of the power which are "necessary for the reasonable fulfilment of the legislative power" [7] over that subject matter. Or, to put it another way, the specific substantive power extends to matters "the control of which is found necessary to effectuate its main purpose" [8] . On the other hand, s. 51(xxxix) is directed not so much to matters incidental to the nominated subject of legislative power but rather to the execution of the various powers vested in the three branches of government. So here we must look to the incidental scope of the power conferred by s. 51(xxxv).

[28]

The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect. So long as the defendant is genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, he or she is immune [3] . In R. v. Dunbabin; Ex parte Williams, Rich J., with reference to the summary jurisdiction to punish for contempt, said [4] : It is not given for the purpose of restricting honest criticism based on rational grounds of the manner in which the Court performs its functions. The law permits in respect of Courts, as of other institutions, the fullest discussions of their doings so long as that discussion is fairly conducted and is honestly directed to some definite public purpose. The jurisdiction exists in order that the authority of the law as administered in the Courts may be established and maintained. This approach is based upon the underlying view that "[f]air criticism of the decisions of the Court is not only lawful, but regarded as being for the public good", to repeat the words of Evatt J. in R. v. Fletcher; Ex parte Kisch [5] . However, as his Honour went on to point out [6] , "the facts forming the basis of the criticism must be accurately stated, and the criticism must be fair and not distorted by malice". 1. Bell v. Stewart; R. v. Fletcher; Ex parte Kisch (1935), 52 C.L.R. 248; R. v. Dunbabin; Ex parte Williams (1935), 53 C.L.R. 434; Gallagher v. Durack (1983), 152 C.L.R. 238, at p. 243. 2. McLeod v. St. Aubyn, [1899] A.C. 549, at p. 561. 3. Reg. v. Gray, [1900] 2 Q.B. 36, at p. 40; Perera v. The King, [1951] A.C. 482, at p. 488. 4. Ambard v. Attorney-General (Trinidad and Tobago), [1936] A.C. 322, at p. 335, per Lord Atkin; Reg. v. Gray, [1900] 2 Q.B., at p. 40. 5. Reg. v. Gray, [1900] 2 Q.B., at p. 40. 6. (1941) 314 U.S. 252, at pp. 270-271; cited with approval in Landmark Communications Inc. v. Virginia (1978), 435 U.S. 829, at p. 842. 7. (1935) 53 C.L.R., at p. 442. 8. ibid., at pp. 442-443. The statement by Rich J. was accepted as an accurate statement of the law in Gallagher v. Durack (1983), 152 C.L.R., at p. 243. 9. (1935) 52 C.L.R., at p. 257. 10. (1935) 52 C.L.R., at pp. 257-258.

[31]

In considering whether the protection sought to be given to the Commission is so disproportionate as to lead to the conclusion that the protection stands outside the incidental scope of the substantive power, two points are, in my view, of paramount importance. First, as the courts have come to the conclusion that only the degree of protection accorded to the courts and the administration of justice by the law of contempt can reasonably be justified in the public interest, how can this Court now decide, consistently with that view, that a much larger degree of protection of the Commission and its members is capable of being considered to be justified in the public interest? As I have said, the Commission is the paramount agency in Australia in preventing and settling industrial disputes and no one could deny that, in the highly charged, contentious world of industrial relations, the reputation of the Commission for integrity, objectivity and fairness is vitally important. Public acceptance of the Commission's determinations is essential to the stability of industrial peace and harmony. But no less important is the interest of the public in ensuring that the Commission and its activities should be open to public scrutiny and criticism. That interest, it seems to me, is just as fundamental in the case of the Commission as it is in the case of the courts and the administration of justice. Viewing the question from the perspective of the need to protect the Commission, there may be a case for saying that the Commission's need is greater than that of the courts. Because the Commission is not a court, its decision-making processes differ from curial processes and it deals with industrial disputes, it can be said that it does not have the standing and status in the public mind which the court system enjoys. On this argument, its reputation needs a greater degree of protection. I am prepared to assume, without deciding, that there is force in this argument. However, it is in any event outweighed by the strength of the public interest in public scrutiny and freedom to criticize.

[49]

Paragraphs (a), (b), and (c) of s. 299(1) confer protection on the Australian Industrial Relations Commission ("the Commission") and on the members of the Commission in the performance of the functions assigned to the Commission or to those members by the Act ("official functions"). Paragraph (d)(i) protects members of the Commission from attempts to influence them improperly in the exercise of their official functions. But par. (d)(ii) is not confined in terms to official repute or repute relevant to the performance of official functions. In terms, it protects the Commission and its members from any oral or written communication that would be likely to bring them disesteem, discredit, disgrace or dishonour [8] in any respect. It is possible to read disrepute in par. (d)(ii) as relating not only to disrepute relevant to the performance of official functions but also to purely private disrepute. But to read "disrepute" in that way is to ignore the context in which par. (d)(ii) appears. Section 299(1)(a), (b), (c) and (d)(i) protect the capacity of the Commission and its members to perform the important functions that are assigned to them by the Act and the integrity of the Commission and its members in performing those functions. Those provisions are designed chiefly for the purpose of establishing and maintaining public confidence in the Commission and acceptance of the Commission's authority in the exercise of its powers. In my view, par. (d)(ii) should be understood to have the same purpose. It is not designed to protect every aspect of the repute of individual members of the Commission, whether related to the performance of official functions or not. Construing par. (d)(ii) in that way, its application is restricted to writing or speech which is calculated to bring the Commission or a member into disrepute in a respect that is relevant to the Commission's or the member's performance of official functions. This is the meaning which I understand Keely J. to have given to the corresponding provision of the Conciliation and Arbitration Act 1904 Cth - the statutory predecessor of s. 299(1)(d)(ii) of the Act - in Howard v. Gallagher [9] :

[50]

In my opinion the ordinary meaning of s. 182(1)(d)(ii), read in its context, is that it forbids the use of words calculated to bring into disrepute a member of the Commission, as such, or the Commission itself, as such; it cannot be confined to events which occurred before or during proceedings in the Commission. Paragraph (d)(ii) thus extends to writing or speech which is calculated to impugn the capacity of the Commission or of a member to perform official functions, or to impugn the integrity of the Commission or of a member in a respect that touches the performance of official functions or to impugn a decision taken or a course pursued by the Commission or a member in performing official functions where the attack asserts such a departure from proper standards of decision-making or official conduct as to "forfeit the respect of the community" [10] . Paragraph (d)(ii) does not protect the repute of a member of the Commission in a respect that is irrelevant to public confidence in the Commission or to the acceptance of the Commission's authority in the exercise of its powers. However, par. (d)(ii), unless it be read down, suppresses writing or speech that attacks the repute of the Commission or a member even where the attack is warranted. Facts or criticisms bringing the Commission or a member into disrepute are all suppressed, though the facts be true [11] and the criticisms be fair and reasonable. There is nothing in the statutory context which suggests par. (d)(ii) should be read down to permit an attack if the attack is warranted. Indeed, the purpose of s. 299(1) is more amply fulfilled by interpreting par. (d)(ii) as prohibiting warranted attacks. Given that official repute is the subject of protection by par. (d)(ii), an attack on that repute based on facts that are true or consisting in criticisms that are fair and reasonable is likely to be more damaging to that repute than an attack alleging facts that are false or making criticisms that are unfair and unreasonable. 1. Bell v. Stewart (1920), 28 C.L.R. 419, at pp. 425, 426. 2. (1988) 18 F.C.R. 233, at p. 244. 3. Bell v. Stewart (1920), 28 C.L.R., at p. 426. 4. cf. Howard v. Gallagher (1989), 85 A.L.R. 495, at p. 500.

[63]

The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it), it is not for any Court of Justice to inquire further, or to enlarge constructively those conditions and restrictions. Although Reg. v. Burah had been advanced by counsel as authority for a submission that an "express grant [of power] is only to be cut down by express limitations" [27] , the majority judgment appears to recognize that Lord Selborne's proposition was stated too absolutely in so far as it rejected the possibility of limitations on the grant of power arising by necessary implication. In the Engineers' Case the only provision relied on as containing an implied limitation on the power conferred by s. 51(xxxv) was s. 107 and the Court held that it was "a fundamental and fatal error to read s. 107 as reserving any power from the Commonwealth that falls fairly within the explicit terms of an express grant in s. 51, as that grant is reasonably construed, unless that reservation is as explicitly stated" [28] . The broader, and perhaps more accurately stated, principle upon which the majority judgment turned appears in these terms [29] : The doctrine of "implied prohibition" finds no place where the ordinary principles of construction are applied so as to discover in the actual terms of the instrument their expressed or necessarily implied meaning. (Emphasis added.) Despite this passage, the Engineers' Case was seen by some as excluding the drawing of implications from the Constitution. Dixon J. dispelled that notion in his judgment in West v. Commissioner of Taxation (N.S.W.) [30] : Since the Engineers' Case a notion seems to have gained currency that in interpreting the Constitution no implications can be made. Such a method of construction would defeat the intention of any instrument, but of all instruments a written constitution seems the last to which it could be applied. I do not think that the judgment of the majority of the court in the Engineers' Case meant to propound such a doctrine. In Melbourne Corporation Dixon J. held that a law, though having "an actual and immediate operation within a field assigned to the Commonwealth as a subject of legislative power" [31] , might be invalid because it singles out the governments of the States and places special burdens upon the exercise of their powers or the fulfilment of functions constitutionally belonging to them [32] . That limitation on legislative power is not expressed in the Constitution but is "a consequence of the conception upon which the Constitution is framed" [33] . The decision in Melbourne Corporation is an example of a limitation upon the scope of an express legislative power arising by implication from the Constitution as a whole. In Australian National Airways Pty. Ltd. v. The Commonwealth [34] Dixon J. said: We should avoid pedantic and narrow constructions in dealing with an instrument of government and I do not see why we should be fearful about making implications. In Victoria v. The Commonwealth [35] Windeyer J. cited this observation and added: The only emendation that I would venture is that I would prefer not to say "making implications", because our avowed task is simply the revealing or uncovering of implications that are already there. 1. Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920), 28 C.L.R. 129, at p. 149. 2. (1878) 3 App. Cas. 889, at pp. 904-905. 3. (1920) 28 C.L.R., at p. 133. 4. ibid., at p. 154. 5. ibid., at p. 155. 6. (1937) 56 C.L.R. 657, at pp. 681-682; Essendon Corporation v. Criterion Theatres Ltd. (1947), 74 C.L.R. 1, at pp. 22, 23. 7. ibid., at p. 79. 8. ibid., esp. at pp. 81-83. 9. ibid., at p. 82; see also pp. 70-74, per Starke J. 10. (1945) 71 C.L.R. 29, at p. 85. 11. The Payroll Tax Case (1971), 122 C.L.R. 353, at pp. 401-402.

[66]

If it be conceivable that the representatives of the people of Australia as a whole would ever proceed to use their national powers to injure the people of Australia considered sectionally, it is certainly within the power of the people themselves to resent and reverse what may be done. No protection of this Court in such a case is necessary or proper. Therefore, the doctrine of political necessity, as means of interpretation, is indefensible on any ground. The one clear line of judicial inquiry as to the meaning of the Constitution must be to read it naturally in the light of the circumstances in which it was made, with knowledge of the combined fabric of the common law, and the statute law which preceded it, and then lucet ipsa per se. A court will interpret laws of the Parliament in the light of a presumption that the Parliament does not intend to abrogate human rights and fundamental freedoms [38] but the court cannot deny the validity of an exercise of a legislative power expressly granted merely on the ground that the law abrogates human rights and fundamental freedoms or trenches upon political rights which, in the court's opinion, should be preserved. A function of that kind may be conferred on a court exercising a jurisdiction to review judicially laws enacted under a Constitution containing a Bill of Rights, but our Constitution does not contain a Bill of Rights. Indeed, the 1898 Constitutional Convention rejected a proposal to include an express guarantee of individual rights based substantially on the 14th Amendment to the Constitution of the United States and including a right to due process of law and the equal protection of laws [39] . As Sir Owen Dixon observed [40] : The framers of the Australian Constitution were not prepared to place fetters upon legislative action, except and in so far as it might be necessary for the purpose of distributing between the States and the central government the full content of legislative power. The history of their country had not taught them the need of provisions directed to the control of the legislature itself. 1. ibid., at pp. 151-152. 2. Re Bolton; Ex parte Beane (1987), 162 C.L.R. 514, at p. 523; Potter v. Minahan (1908), 7 C.L.R. 277, at p. 304. See also Wheeler v. Leicester City Council, [1985] A.C. 1054, at p. 1065, per Browne-Wilkinson L.J. 3. See the Official Record of the Debates of the Australasian Federal Convention, (Melbourne, 8 February 1898), pp. 664-691, particularly p. 673. 4. "Two Constitutions Compared", reprinted in Jesting Pilate (1965), p. 102; see also W. Harrison Moore, The Constitution of the Commonwealth of Australia (1902), pp. 328-329.

[78]

The Commission is an important institution of government. Its awards and other decisions set the terms and conditions of employment of a large part of the workforce and influence the terms and conditions of employment of a further part. Its awards and decisions affect the general economy of the nation. In exercising its powers, the Commission is required to take into account "the state of the national economy and the likely effects on the national economy of any award or order that the Commission is considering, or is proposing to make, with special reference to likely effects on the level of employment and on inflation" (s. 90(b)). Its control over aspects of the constitution and activities of registered organizations regulate to an extent the functioning of these centres of industrial power. Whether the Commission's powers be classified as legislative [46] or as executive [47] , the most important of those powers are exercised "according to equity, good conscience and the substantial merits of the case" (s. 110(2)(c)), a formula which leaves the Commission free to decide according to its own views of what is reasonable, desirable or industrially expedient [48] . The Commission's powers are political in the sense that the Commission exercises large powers over the relationship of labour and capital, the economy and industrial organizations according to its view of the national economy, the national interest and what is reasonable, desirable or industrially expedient. The decisions of the Commission, especially its economic decisions, both affect and are affected by the policies of government. The performance by the Commission of its functions is a matter in which the Parliament, whose legislation maintains the Commission in its prescribed form and with its prescribed powers, has a continuing interest. To prohibit all speech and writing which would be likely to bring the Commission or a member into disrepute, even though the speech or writing reveals true facts to the public benefit or contains fair and reasonable criticism, would be to stifle discussion of matters significant to political and economic life in Australia. A consequence of such a law, pointed out by Gray J. in Howard v. Gallagher [49] , is that it "would constitute an effective bar to the unearthing of vices in the system of conciliation and arbitration". But does the Constitution imply a limitation of the power conferred by s. 51(xxxv) which leaves such speech and writing immune from legislative suppression? 1. Colvin v. Bradley Brothers Pty. Ltd. (1943), 68 C.L.R. 151, at pp. 160, 161; Ansett Transport Industries (Operations) Pty. Ltd. v. Wardley (1980), 142 C.L.R. 237, at p. 277; Collins v. Charles Marshall Pty. Ltd. (1955), 92 C.L.R. 529, at pp. 548-549. 2. But none as judicial: see Reg. v. Kirby; Ex parte Boilermakers' Society of Australia (1956), 94 C.L.R. 254. 3. Reg. v. Spicer; Ex parte Waterside Workers' Federation of Australia (1957), 100 C.L.R. 312, at p. 317; Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. (1970), 123 C.L.R. 361, at pp. 376-377. 4. (1988) 18 F.C.R., at p. 253.

[87]

In the same case, Cannon J. said [63] : Under the British system, which is ours, no political party can erect a prohibitory barrier to prevent the electors from getting information concerning the policy of the government. Freedom of discussion is essential to enlighten public opinion in a democratic State; it cannot be curtailed without affecting the right of the people to be informed through sources independent of the government concerning matters of public interest. There must be an untrammelled publication of the news and political opinions of the political parties contending for ascendancy. As stated in the preamble of The British North America Act, our constitution is and will remain, unless radically changed, "similar in principle to that of the United Kingdom." At the time of Confederation, the United Kingdom was a democracy. Democracy cannot be maintained without its foundation: free public opinion and free discussion throughout the nation of all matters affecting the State within the limits set by the criminal code and the common law. 1. Attorney-General v. Guardian Newspapers [No. 2], [1990] 1 A.C. 109, at p. 283. 2. An Introduction to the Study of the Law of the Constitution, 10th ed. (1959), p. 239. 3. See Wheeler v. Leicester City Council, [1985] A.C., at p. 1065, per Browne-Wilkinson L.J. 4. See Switzman v. Elbling and Attorney-General (Quebec), [1957] S.C.R. 285, at pp. 326-327; (1957) 7 D.L.R. (2d) 337, at pp. 369-370, per Abbott J. and the review of the Canadian pre-Charter cases by McIntyre J. in Retail, Wholesale & Department Store Union v. Dolphin Delivery Ltd. (1986), 33 D.L.R. (4th), at pp. 184-185. 5. Reference re Alberta Statutes, [1938] S.C.R. 100, at pp. 132-133; [1938] 2 D.L.R. 81, at p. 107, followed in Saumur v. Attorney-General (Quebec), [1953] 2 S.C.R. 299; [1953] 4 D.L.R. 641, and by Abbott J. in Switzman v. Elbling and Attorney-General (Quebec), [1957] S.C.R., at pp. 326-327; (1957) 7 D.L.R. (2d), at pp. 369-370. 6. 30 & 31 Vict. c. 3. 7. [1936] A.C. 578, at p. 627. 8. [1938] S.C.R., at pp. 145-146; [1938] 2 D.L.R., at p. 119.

[96]

Finding in the Constitution an implication which limits legislative power to the extent stated, I would hold that s. 299(1)(d)(ii) exceeds the legislative power of the Commonwealth. The preservation of public confidence in the Commission and acceptance of the authority of the Commission and its members in the exercise of their respective powers is an interest which the Parliament is empowered to protect, and the Parliament clearly has power to enact a law protecting the repute of the Commission and its members against unwarranted attack. But s. 299(1)(d)(ii) goes much further than is needed to achieve a proper protection of repute. By prohibiting justifiable revelations of any corruption or other vice affecting the workings of the Commission and by prohibiting criticisms made fairly and reasonably, par. (d)(ii) purports impermissibly to prevent public discussion about an important agency of social regulation. It purports to stifle that free discussion which is essential to expose defects in, and to maintain the integrity of, any institution vested with power to affect the lives of the people living in a representative democracy. Had the Act prohibited speech and writing that is calculated to bring the Commission or its members into disrepute only when the speech or writing fails to state the critical facts truly or when the criticism is unreasonable or unfair, the provision would have been clearly valid, even though the freedom of discussion was curtailed to some extent. The balance between curtailment of the freedom and the protection of the Commission and its members against unwarranted attacks would have been appropriately struck. But s. 299(1)(d)(ii) does not attempt to strike a balance. Unless it be possible, by operation of s. 15A of the Acts Interpretation Act 1901 Cth, to sever the invalid application of s. 299(1)(d)(ii) from the area in which such a provision could legitimately operate, s. 299(1)(d)(ii) must be held invalid in its present form. Before turning to the question of severance, however, it is desirable to examine the alternative basis on which the validity of that provision was challenged, namely, that s. 92 of the Constitution guarantees a freedom to communicate ideas and that that freedom is infringed by application of s. 299(1)(d)(ii) to the publication of the article mentioned in the information. If s. 92 contains such a guarantee within the concept of "intercourse among the States", the Constitution could not be construed to imply a broader guarantee of the same kind. The implication could not override any limits imposed by s. 92.

[144]

There is some superficial force in the argument that the words of s. 299(1)(d)(ii) should be further confined by being construed as referring only to a written or oral attack made on the Commission or a member in relation to an exercise or performance of official powers or functions. The offences created by pars (a), (b) and (c) of s. 299(1) are all related to the protection of the actual functioning of the Commission and, once the reference to a member of the Commission is construed as a reference to a person in his or her capacity as such, the words "influence improperly a member of the Commission" in par. (d)(i) can readily be construed as referring to improper influence in relation to the actual or potential exercise of official powers. Upon close examination, however, the argument for confining par. (d)(ii) by analogy with the other provisions of s. 299(1) is unpersuasive. Unlike the prohibitions contained in those other provisions, par. (d)(ii)'s unqualified prohibition of the use of words calculated to bring the Commission or a member of the Commission into disrepute cannot, as a matter of mere language, be read as concerned only with an exercise or performance of the Commission's powers or functions. Indeed, the contrast with the express confinement of the reference to "a member of the Commission" in pars (a) and (c) of s. 299(1) to a member "in the exercise of or the performance of" or "exercising or performing" powers or functions "as a member" heightens the difficulty involved in constricting the scope of the words of par. (d)(ii) by the implication of some similar confinement. Moreover, the difficulty in implying some such confinement of the words of par. (d)(ii) is increased by the uncertainty of what the precise confinement should be. There is, for example, nothing in the words or context of the clause to suggest a legislative intent to exclude from its scope any written or oral attack upon the general character or integrity of the members of the Commission. Thus, to take an extreme hypothetical case, it is scarcely likely that it was the legislative intent that a published false allegation that all members of the Commission were convicted criminals would be beyond the reach of the plain and unqualified words of the clause merely because the allegation was not related to any actual or contemplated exercise or performance of official powers or functions.

[145]

The submission that there should be read into par. (d)(ii), by analogy with the law of contempt of court and defamation, special defences, including defences of "justification", "fair comment" and "honest and reasonable mistake of fact", is more easily disposed of. Plainly, acts of an accused will not constitute an offence under s. 299(1)(d)(ii) unless they are willed and voluntary. There is, however, no scope for importing into par. (d)(ii), as a matter of construction, special defences of the kind suggested on behalf of the respondent. For one thing, there is nothing at all in the words or context of par. (d)(ii) to found an implication of such possible special defences or to provide guidance as to the selection of one or more of them to the exclusion of others. In so far as analogy with the law of contempt of court is concerned, there is no true analogy between a general statutory prohibition of a written or oral use of words which are calculated to bring the Commission or any of its members "into disrepute" and the law relating to the type of "unwarranted" [2] (or "unwarrantable" [3] ) attack upon a judge which "constitute[s] contempt of court" in that it is "calculated to obstruct or interfere with the course of justice or the due administration of the law" [4] . In so far as a perceived analogy with the law of defamation is concerned, any appropriate analogy would be with the law of criminal defamation rather than civil defamation. Such an analogy would deny rather than support the implication of a defence of "truth" (on its own) [5] and would favour the application of aphorisms such as "the greater the truth, the greater the libel" [6] or Bentham's derisive comment that "if what they [i.e. the judges] call a libel is all true, it is the more libellous" [7] . Moreover, reference to the other provisions of Pt XI of the Act makes plain that, where the Parliament has intended to make a defence such as "reasonable excuse" [8] or "lawful authority or excuse" [9] available or to make falseness [10] knowledge of falseness [11] an ingredient of an offence, it has expressly said so.

[148]

The grant of legislative power contained in s. 51(xxxv) of the Constitution is, of itself and without any need to resort to the "incidental" power contained in s. 51(xxxix), adequate to sustain the establishment of the Commission and the conferral upon it of powers and functions of conciliation and arbitration for the prevention and settlement of interstate industrial disputes [12] . If the scope of s. 51(xxxv) fell to be determined out of context, it would be at least arguable that, either alone or as supplemented by s. 51(xxxix), it encompassed the enactment of s. 299(1)(d)(ii). Given that the legislative power conferred by s. 51(xxxv) extends to the establishment of the Commission and the conferral upon it of its core powers and functions, it extends, if construed in isolation, to the making of laws conferring upon the Commission whatever powers and immunities are reasonably capable of being seen as appropriate and adapted to enabling or advancing the effective performance of those functions [13] . Obviously, the status and effectiveness of the Commission will, to no small extent, depend upon the reputation of both itself and its members and it is arguable that a law which prohibits any use of words calculated to bring the Commission or any of its members into disrepute is reasonably capable of being seen as appropriate and adapted to advancing the ability of the Commission effectively to discharge its functions of conciliation and arbitration. It is, however, unnecessary to pursue the question whether the legislative power conferred by s. 51(xxxv), either alone or as supplemented by s. 51(xxxix), would, if construed in isolation, encompass the enactment of s. 299(1)(d)(ii). All of the grants of legislative power contained in s. 51, including those contained in pars (xxxv) and (xxxix), are expressly made "subject to" the Constitution. They must be read and construed in the context of, and as "subject to", the Constitution as a whole including the fundamental implications of the doctrines of government upon which the Constitution as a whole is structured and which form part of its fabric [14] . They must also be read and construed in the context of other more particular implications which either are to be discerned in particular provisions of the Constitution or which flow from the fundamental rights and principles recognized by the common law at the time the Constitution was adopted as the compact of the Federation [15] . In that regard it has long been recognized that the "notion" [16] or "dogma" [17] which gained currency for a period after the decision in the Engineers' Case [18] to the effect that the rejection of the doctrine of "immunity of instrumentalities" meant that no implications can be made in construing the Constitution was mistaken [19] . As Dixon J. pointed out in West's Case [20] , such an approach to construction "would defeat the intention of any instrument, but of all instruments a written constitution seems the last to which it could be applied".

[150]

There are at least [21] three main general doctrines of government which underlie the Constitution and are implemented by its provisions. One of them is the doctrine or concept of a federal system under which the content of legislative, executive and judicial powers is divided between a central (or Commonwealth) government and regional (or State) governments. Another is the doctrine of a separation of legislative, executive and judicial powers. The fundamental implications of the Constitution to which attention has been directed in past cases have, in the main, been related to one or both of those doctrines. Thus, for example, the cases establish that it is a fundamental implication to be derived from the nature of the federal system established by the written terms of the Constitution that the legislative and executive powers conferred upon the Commonwealth are confined to the extent necessary to preclude their use in a manner which would be inconsistent with either the continued existence of the States as independent entities or their capacity to function as such [22] . Again, the judgments in past cases establish that it is a fundamental implication of the Constitution's doctrine of the separation of powers that, while it allows for the adoption of the Cabinet or Westminster system of government with its merging of legislative power and executive responsibility, no part of the judicial power of the Commonwealth can be exercised either by a body which is not a Ch. III court or in a manner which is inconsistent with our traditional judicial process [23] . The implication of the Constitution which is of central importance in the resolution of the present case flows from the third of those general doctrines of government which underlie the Constitution and form part of its structure. That doctrine can conveniently be described as the doctrine of representative government, that is to say, of government by representatives directly or indirectly elected or appointed by, and ultimately responsible to, the people of the Commonwealth. The rational basis of that doctrine is the thesis that all powers of government ultimately belong to, and are derived from, the governed.

[160]

The statute contemplates a Parliament working under the influence of public opinion and public discussion. There can be no controversy that such institutions derive their efficacy from the free public discussion of affairs, from criticism and answer and counter-criticism, from attack upon policy and administration and defence and counter-attack; from the freest and fullest analysis and examination from every point of view of political proposals. This is signally true in respect of the discharge by Ministers of the Crown of their responsibility to Parliament, by members of Parliament of their duty to the electors, and by the electors themselves of their responsibilities in the election of their representatives. Those comments are equally applicable to the working of the doctrine of representative government embodied in our Constitution. Indeed, as Abbott J. commented in Switzman v. Elbling [34] , the "right of free expression of opinion and of criticism, upon matters of public policy and public administration, and the right to discuss and debate such matters, whether they be social, economic or political, are essential to the working of a parliamentary democracy". In that regard, it is important to bear in mind that freedom of political discussion necessarily involves freedom to maintain and consider claims and opinions about political matters notwithstanding their unpopularity among either the general populace or those in government or that they may ultimately be shown to be mistaken. That being so, the fact that particular assertions, opinions or criticisms about matters relating to government are rejected by government or are found by the courts or proved by subsequent events to be mistaken does not, of itself, suffice to establish that the suppression of their expression is or was consistent with the effective functioning of representative government. 1. [1938] S.C.R. 100, at pp. 132-133; [1938] 2 D.L.R. 81, at p. 107. 2. [1957] S.C.R. 285, at pp. 326-327; (1957) 7 D.L.R. (2d) 337, at p. 369.

[161]

The implication of freedom of communication about the government of the Commonwealth most obviously applies in relation to Commonwealth, as distinct from State or other regional, governmental institutions. Under the Australian federal system, however, it is unrealistic to see the three levels of government - Commonwealth, State and local - as isolated from one another or as operating otherwise than in an overall national context. Indeed, the Constitution's doctrine of representative government is structured upon an assumption of representative government within the States [35] and, to a limited extent, an assumption of the co-operation of the governments and Parliaments of the States in the electoral process itself [36] . As a practical matter, taxes levied by the Executive of the Commonwealth under laws made by the Parliament are applied for public purposes through and at all levels of government. Political parties or associations are likely to exist in relation to more than one level of government and political ideas are unlikely to be confined within the sphere of one level of government only. Clearly enough, the relationship and interaction between the different levels of government are such that an implication of freedom of communication about matters relating to the government of the Commonwealth would be unrealistically confined if it applied only to communications in relation to Commonwealth governmental institutions. Accordingly, there is obviously much to be said for the view that the Constitution's implication of freedom of discussion extends to all political matters, including matters relating to other levels of government within the national system which exists under the Constitution. It is, however, unnecessary to express a firm view in relation to that question for the purposes of the present case since the impugned law (i.e. s. 299(1)(d)(ii) of the Act) only affects communications relating to a Commonwealth governmental institution or its members.

[165]

The Constitution's implication of freedom of communication with and about the government of the Commonwealth is not an implication of an absolute and uncontrolled licence to say or write anything at all about matters relating to the government of the Commonwealth. It is an implication of freedom under the law of an ordered society. It would be unwise and impracticable to seek to identify in advance the precise categories of prohibition or control which are consistent with the implication. Clearly, much will depend upon the character of the law whose validity is in question. In particular, a law whose character is that of a law with respect to the prohibition or control of some or all communications relating to government or governmental instrumentalities will be much more difficult to justify as consistent with the implication than will a law whose character is that of a law with respect to some other subject and whose effect on such communications is unrelated to their nature as communications of the relevant kind. Thus, a law prohibiting conduct that has traditionally been seen as criminal (e.g. conspiring to commit, or inciting or procuring the commission of, a serious crime) will readily be seen not to infringe an implication of freedom of political discussion notwithstanding that its effect may be to prohibit a class of communications regardless of whether they do or do not relate to political matters. In contrast, the impugned law in the present case is a law which prohibits the oral or written use of words merely by reason of, and by reference to, the detrimental effect which they will have on the reputation of a particular Commonwealth governmental institution or its members. Plainly, it falls within the category of laws whose character is that of laws with respect to the prohibition or control of communications relating to the government of the Commonwealth. A law falling within that category can be justified as consistent with the prima facie scope of the implication only if, viewed in the context of the standards of our society, it is justified as being in the public interest for the reason that the prohibitions and restrictions on communication about relevant matters which it imposes are conducive to the overall availability of the effective means of such communication in a democratic society [40] or do not go beyond what is reasonably necessary 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. We have used the phrase "prima facie scope" for the reason that, as has been said, the implication of freedom of communication about relevant matters is drawn from the provisions of the Constitution as a whole and is confined by any provisions of the Constitution, including the provisions of s. 51, which manifest an intention to derogate from, or to confer legislative power to derogate from, the scope of the implication. Thus, the nature of a particular legislative power or the express words in which it is conferred may manifest an intention that the implication be modified.

[168]

As has been seen, however, s. 299(1)(d)(ii) goes far beyond protecting the Commission and its members from unfounded and illegitimate attack. It purports to forbid, under the sanction of fine and/or imprisonment, the use of words calculated to bring the Commission or a member of the Commission into disrepute regardless of whether what is written or said is well founded and relevant. A prohibition of the communication of well-founded and relevant criticism of a governmental instrumentality or tribunal, such as the Commission or a Commonwealth court, cannot be justified as being, on balance, in the public interest merely because it is calculated to bring the instrumentality or tribunal or its members into disrepute. To the contrary, if criticism of a governmental instrumentality or tribunal or its members is well founded and relevant, its publication is an incident of the ordinary working of representative government and the fact that it will, if published, bring the relevant instrumentality or tribunal into deserved disrepute is, from the point of view of the overall public interest, a factor supporting publication rather than suppression. In that regard, the fact that the appearance as well as the substance of propriety, impartiality and competence is important for the effective functioning of a Commonwealth tribunal such as the Commission does not mean that it is in the public interest that the substance of impropriety, bias or incompetence should be concealed under a false veneer of good repute. Indeed, the traditions and standards of our society dictate a conclusion that, putting to one side times of war and civil unrest, the public interest is never, on balance, served by the suppression of well-founded and relevant criticism of the legislative, executive or judicial organs of government or of the official conduct or fitness for office of those who constitute or staff them [41] . Suppression of such criticism of government and government officials removes an important safeguard of the legitimate claims of individuals to live peacefully and with dignity in an ordered and democratic society. Indeed, if that suppression be institutionalized, it constitutes a threat to the very existence of such a society in that it reduces the possibility of peaceful change and removes an essential restraint upon excess or misuse of governmental power [42] . As Hughes C.J. pointed out in De Jonge v. Oregon [43] :

[171]

The question arises whether par. (d)(ii) can be read down or confined in a way which will bring it within the scope of Commonwealth legislative power. Such a reading down or confinement of the clause would require the Court to determine, in the abstract, what qualification or qualifications or combination of qualifications would suffice to bring par. (d)(ii)'s prohibition within legislative competence and then to undertake the task of determining which qualification or qualifications should be introduced. Thus, for example, par. (d)(ii) would arguably be within legislative competence if its prohibition was confined to the malicious use of words which were false to the knowledge of the user or if a proviso were introduced to the effect that, analogously with the offence of contempt of court [44] , an offence against the clause would not be committed unless what was written or said was unwarranted and calculated seriously to obstruct or interfere with the performance by the Commission of its function of conciliation and arbitration under the Act. Clearly, such a reframing of par. (d)(ii) to produce a new and different provision falls outside the scope of any process of severing or reading down as a matter of construction of the type authorized by s. 15A of the Acts Interpretation Act 1901 Cth [45] . There is nothing in the words or context of par. (d)(ii) or in the nature of the subject matter with which it deals to indicate which of such arguable qualifications should be introduced in an effort to confine par. (d)(ii) within legislative power [46] or that it was the intention of the Parliament that this or any other court should reframe the clause to create a different offence. Indeed, if the Parliament had attempted to authorize the Court to select what the Court thought would be appropriate qualifications to achieve validity or to undertake the "task" of substituting a new and different offence for that which the Parliament had purported to create, the attempt would have been invalid for the reason that it would have constituted "an inadmissible delegation to the Court of [a] legislative task" [47] . In that regard, the case is quite different from those in which it is possible to preserve the validity of a law whose literal operation would infringe s. 92's direct guarantee of the freedom of trade and commerce among the States by reading it as being simply inapplicable to transactions in the course of interstate trade or commerce.

[178]

The notions of absolutely free trade and commerce and absolutely free intercourse are quite distinct and neither the history of the clause nor the ordinary meaning of its words require 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. Once the guarantee of freedom of interstate intercourse is recognized as an independent one, its importance is apparent. As the Court said [53] : A constitutional guarantee of freedom of interstate intercourse, if it is to have substantial content, extends to a guarantee of personal freedom "to pass to and fro among the States without burden, hindrance or restriction" [54] That is not to suggest that every form of intercourse must be left without any restriction or regulation in order to satisfy the guarantee of freedom. For example, although personal movement across a border cannot, generally speaking, be impeded, it is legitimate to restrict a pedestrian's use of a highway for the purpose of his crossing or to authorize the arrest of a fugitive offender from one State at the moment of his departure into another State. It is not necessary now to consider the content of the guarantee of freedom of various forms of interstate intercourse. Much will depend on the form and circumstance of the intercourse involved. But it is clear that some forms of intercourse are so immune from legislative or executive interference that, if a like immunity were accorded to trade and commerce, anarchy would result. Clearly enough, the guarantee of freedom of interstate intercourse is not confined to the physical movement or carriage of goods or things among the States. It encompasses all of the modern forms of interstate communication [55] . 1. (1988) 165 C.L.R. 360. 2. ibid., at pp. 387-388. 3. ibid., at p. 388. 4. (1988) 165 C.L.R., at p. 393. 5. Gratwick v. Johnson (1945), 70 C.L.R. 1, at p. 17. 6. See, e.g., Bank of N.S.W. v. The Commonwealth (1948), 76 C.L.R., at pp. 381-382, per Dixon J.; Williams v. Metropolitan and Export Abattoirs Board (S.A.) (1953), 89 C.L.R. 66, at p. 74, per Kitto J.; Hospital Provident Fund Pty. Ltd. v. Victoria (1953), 87 C.L.R. 1, at pp. 14-15; Mansell v. Beck (1956), 95 C.L.R. 550, at p. 601; Miller v. TCN Channel Nine Pty. Ltd. (1986), 161 C.L.R., at p. 615.

[188]

It goes further than "necessary"; "things which are incidental to it, and which may reasonably and properly be done and against which no express prohibition is found, may and ought, prima facie, to follow from the authority for effectuating the main purpose by proper and general means". But the exercise remains one in which it is necessary to discern a sufficient connexion between the law and the head of power. In carrying out that exercise it is permissible to have regard to the purpose or object of the law said to be incidental to the main power [65] . As Dixon J. said in Bank of N.S.W. v. The Commonwealth [66] : 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. Thus, notwithstanding the immediate operation of the law, if its end lies within the scope of the power, then there will ordinarily be a sufficient connexion to support the law. But it is a question of there being a sufficient connexion between the law and the subject matter of the power, not whether the means adopted to achieve the end are appropriate or desirable. This is, I think, what Dixon C.J. had in mind in Burton v. Honan when he said [67] : 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. 1. See Burton v. Honan (1952), 86 C.L.R. 169, at p. 177. 2. (1949) 79 C.L.R. 201, at p. 274. 3. See Victoria v. The Commonwealth (1957), 99 C.L.R. 575, at p. 614, per Dixon C.J. 4. (1948) 76 C.L.R., at p. 354. 5. (1952) 86 C.L.R., at p. 179.