Nationwide News Pty Ltd v Wills

1. See the discussion by Dixon C.J. in Burton v. Honan (1952), 86 C.L.R. 169, at pp. 177-179. 2. ibid., at p. 177. 3. Grannall v. Marrickville Margarine Pty. Ltd. (1955), 93 C.L.R. 55, at p. 77, per Dixon C.J., McTiernan, Webb and Kitto JJ.

The formulations to which I have just referred are not without their difficulties. The first formulation impliedly assumes and the second expressly assumes that a legislative power has a main purpose or object. As very few of the Parliament's legislative powers are truly purposive powers, the reference to purpose or object in this context has a wider meaning. The ascertainment of what is the main purpose or object of a particular power may in some cases be a matter of some difficulty. But in the case of s. 51(xxxv) no such difficulty arises. The main, if not the sole, purpose or object of the power is the prevention and settlement of interstate industrial disputes and the sole means of achieving that object is by means of conciliation and arbitration [9] .

1. Australian Boot Trade Employees' Federation v. Whybrow & Co. (1910), 11 C.L.R. 311, at p. 338, per Isaacs J.; R. v. Kelly; Ex parte Victoria (1950), 81 C.L.R. 64.

The second difficulty which arises from the formulations already quoted is to be found in the use of the word "necessary". If one thing emerges clearly from the decisions of this Court it is that, to bring a law within the reach of the incidental scope of a power, it is enough that the provision is appropriate to effectuate the exercise of the power; one is not confined to what is necessary for the effective exercise of the power [10] .

1. Alexandra Private Geriatric Hospital Pty. Ltd. v. The Commonwealth (1987), 162 C.L.R. 271, at p. 281; Attorney-General (W.A.) v. Australian National Airlines Commission (1976), 138 C.L.R. 492, at p. 515, per Stephen J.

In the present case, the provision which is in contention does not fall fairly and squarely within the core of the subject matter of the power. That is because the operation of the provision is not confined to the prevention and settlement of interstate industrial disputes by conciliation and arbitration; the provision extends to impose penal obligations on persons who stand outside the subject matter of the power as so described. To sustain the validity of s. 299(1)(d)(ii) on the footing that it comes within the scope of the incidental reach of the power, it must appear that there is a relevant and sufficient connexion with the subject matter of the power. In determining whether such a connexion exists, it is material to have regard to the purpose of the provision [11] and to the reasonableness of the connexion between that law and the subject matter of the power [12] . It has been said that the "end or purpose of the provision will give the key" [13] and there is authority to support the proposition that, if the purpose of the provision is within power, it is valid, notwithstanding that the difficulties created for many persons are out of all proportion to the advantage gained.

1. Bank of N.S.W. v. The Commonwealth ("the Bank Nationalization Case ") (1948), 76 C.L.R. 1, at p. 354, per Dixon J.; Victoria v. The Commonwealth ("the Second Uniform Tax Case ") (1957), 99 C.L.R. 575, at p. 614, per Dixon C.J. 2. Burton v. Honan (1952), 86 C.L.R., at p. 179, per Dixon C.J. 3. The Bank Nationalization Case (1948), 76 C.L.R., at p. 354, per Dixon J.

Herald & Weekly Times Ltd. v. The Commonwealth [14] was such a case. In furtherance of a policy of ensuring freedom of competition between television services, which was within power, the statute established a regulatory regime covering many concrete situations where it was most unlikely that the person concerned would be able to exercise any degree of control or even influence. In some situations, there was no foothold for the exercise of influence. Nevertheless, the statute was held to be valid. Kitto J. (with whom Taylor, Menzies, Windeyer and Owen JJ. agreed) said [15] :

How far they should go was a question of degree for the Parliament to decide, and the fact that the Parliament has chosen to go to great lengths - even the fact, if it be so, that for many persons difficulties are created which are out of all proportion to the advantage gained - affords no ground of constitutional attack. That statement seems to suggest that, if the purpose of the impugned law is within power, that is enough, no matter that the connexion between the law and the subject matter is remote and that the difficulties created for many persons affected are out of all proportion to the advantage gained. Taken in isolation, the statement may also appear to suggest that matters of degree are for Parliament and not for the Court. 1. (1967) 115 C.L.R. 418. 2. ibid., at p. 437.

Nevertheless, it has long been accepted that it is for the Court to determine whether there is a reasonable connexion between the law and the subject matter of the power [16] and that this is very often largely a question of degree [17] . In other words, the question of degree is not merely a matter for Parliament; although the Court will give weight to the view of Parliament, it is a matter for the Court in determining whether a reasonable connexion exists.

1. Jumbunna Coal Mine, N.L. v. Victorian Coal Miners' Association (1908), 6 C.L.R. 309, at p. 345, per Barton J. 2. Burton v. Honan (1952), 86 C.L.R., at p. 179, per Dixon C.J.; British Medical Association v. The Commonwealth (1949), 79 C.L.R. 201, at pp. 274-275, per Dixon J.

Despite the observations of Kitto J. quoted above, this Court has held that, in characterizing a law as one with respect to a permitted head of power, a reasonable proportionality must exist between the designated object or purpose and the means selected by the law for achieving that object or purpose [18] . The concept of reasonable proportionality is now an accepted test of validity on the issue of ultra vires [19] . It is a test which governs the validity of statutes as well as that of regulations. So, in Castlemaine Tooheys Ltd. v. South Australia [20] , in deciding whether a law was appropriate and adapted to the protection of the environment, in which event the law would have been valid, it was necessary to consider whether the adverse or extraordinary consequences of the law were disproportionate to the achievement of the relevant protection.

1. The Commonwealth v. Tasmania (the Tasmanian Dam Case) (1983), 158 C.L.R. 1, at p. 260, per Deane J. 2. South Australia v. Tanner (1989), 166 C.L.R. 161, at p. 165. 3. (1990) 169 C.L.R. 436, at pp. 473-474.

In Davis v. The Commonwealth [21] , the test of reasonable proportionality was applied, at least by the majority of the Court [22] , in invalidating s. 22(6)(d)(i) of the Australian Bicentennial Authority Act 1980 Cth to the extent that it related to the expression "200 years". Section 22 was a provision designed to protect the name, property and interests of the Bicentennial Authority. Sub-section (1)(a) made it an offence, without the consent in writing of the Authority, to use the name of the Authority, a prescribed symbol or a prescribed expression in connexion with a business, trade, profession or occupation. Sub-section (6)(d)(i) prescribed various expressions, including "200 years", some of which were in common or everyday usage. Sub-section (6)(d)(ii) prescribed any other word or words when used in conjunction with "1788", "1988" or "88". The majority of the Court held that, even if the sole purpose of the provision was to protect the commemoration of the Bicentenary or the attainment of the objects of the Authority, the regime of protection was grossly disproportionate to the need to protect the commemoration of the Bicentenary. In reaching that result, the majority considered that the intrusion into freedom of expression was so great as to preclude the conclusion that the means adopted were reasonably and appropriately adapted to achieve ends that lay within the reach of constitutional power.

1. (1988) 166 C.L.R. 79. 2. ibid., Mason C.J., Deane and Gaudron JJ., Toohey J. concurring on this question.

After stating that the use of certain prescribed expressions in countless situations "could not conceivably prejudice the commemoration of the Bicentenary or the attainment by the Authority of its objects" [23] , Mason C.J., Deane and Gaudron JJ. stated [24] :

It is therefore no answer to say that the Authority's power to refuse written consent is exercisable only for the purpose of ensuring such protection, assuming that to be a permissible construction of s. 22(1).

Here the framework of regulation created by s. 22(1)(a) with s. 22(6)(d)(i) and (ii) reaches far beyond the legitimate objects sought to be achieved and impinges on freedom of expression by enabling the Authority to regulate the use of common expressions and by making unauthorized use a criminal offence. Although the statutory regime may be related to a constitutionally legitimate end, the provisions in question reach too far. This extraordinary intrusion into freedom of expression is not reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power.

1. (1988) 166 C.L.R., at pp. 99-100. 2. ibid., at p. 100.

Brennan J., who reached a similar conclusion by a rather different route, regarded the impact of the provisions on freedom of expression as critical. His Honour said [25] :

[I]t cannot be incidental to the organization of the commemoration of the Bicentenary to prohibit, under criminal sanctions, the peaceful expression of opinions about the significance of the events of 1788. By prohibiting the use of the symbols and expressions apt to express such opinions, ss. 22 and 23 forfeit any support which s. 51(xxxix) might otherwise afford. 1. ibid., at p. 117.

Davis establishes two propositions. First, that, even if the purpose of a law is to achieve an end within power, it will not fall within the scope of what is incidental to the substantive power unless it is reasonably and appropriately adapted to the pursuit of an end within power, i.e., unless it is capable of being considered to be reasonably proportionate to the pursuit of that end [26] . Secondly, in determining whether that requirement of reasonable proportionality is satisfied, it is material to ascertain whether, and to what extent, the law goes beyond what is reasonably necessary or conceivably desirable for the achievement of the legitimate object sought to be attained and, in so doing, causes adverse consequences unrelated to the achievement of that object. In particular, it is material to ascertain whether those adverse consequences result in any infringement of fundamental values traditionally protected by the common law, such as freedom of expression [27] .

1. South Australia v. Tanner (1989), 166 C.L.R., at p. 165. 2. The fundamental importance of freedom of expression in modern democratic society is recognized in the following statements: The Commonwealth v. John Fairfax & Sons Ltd. (1980), 147 C.L.R. 39, at p. 52, per Mason J.: "It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action." Attorney-General v. Times Newspapers, [1974] A.C. 273, at p. 315, per Lord Simon of Glaisdale: "The first public interest involved is that of freedom of discussion in democratic society. People cannot adequately influence the decisions which affect their lives unless they can be adequately informed on facts and arguments relevant to the decisions. Much of such fact-finding and argumentation necessarily has to be conducted vicariously, the public press being a principal instrument." Smith v. Daily Mail Publishing Co. (1979), 443 U.S. 97, at p. 106, per Rehnquist J.: "Historically, we have viewed freedom of speech and of the press as indispensable to a free society and its government." See also Hector v. Attorney-General (Antigua), [1990] 2 A.C. 312, at p. 318, per Lord Bridge of Harwich.

The purpose of s. 299(1)(d)(ii) is, without any doubt, to protect the Commission, and its members, with a view to preserving its reputation and public confidence in its determinations. Subject to the requirement of reasonable proportionality, the attainment of these objects would enhance the prevention and settlement of interstate industrial disputes by means of conciliation and arbitration and thus fall within the purview of s. 51(xxxv) because the Commission is the paramount agency in that activity in Australia and its determinations have a critical impact on the Australian economy. The means chosen by the Parliament is to protect the Commission and its members from any disparagement and criticism which is calculated to bring the Commission or any of its members into disrepute. The problem is that the means chosen is far more restrictive than the protection conferred by the law of contempt upon the courts and the administration of justice and that the means chosen, if valid, makes it an offence to criticize the Commission or any of its members, even if the criticism is based on facts which are true and consists of comments which are fair.

This is not the occasion to state in a definitive way the extent of the protection conferred by the law of contempt upon the courts and the administration of justice. It is sufficient to say that scandalizing the court is a well-recognized form of criminal contempt [28] , though it was at one time said to be obsolete [29] , and that it consists of any act done or writing published which is calculated to bring a court or a judge of the court into contempt or to lower his or her authority [30] . However, at common law no contempt is made out if all that the defendant does is to exercise his or her ordinary right to criticize, in good faith, the conduct of the court or the judge [31] . Courts and judges are open to criticism [1] . As Black J. observed in Bridges v. California [2] :

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.

It is not only in the respects just mentioned that the protection given to the courts and the administration of justice is distinctly more restricted than that sought to be given to the Commission by s. 299(1)(d)(ii). Generally speaking, because the good sense of the community is a sufficient safeguard against scandalous disparagement of a court or judge, the summary jurisdiction is rarely exercised [7] . True it is that, in cases in which the summary jurisdiction is not exercised, the matter may be left to the ordinary processes of the criminal law. But, in cases of the class now under consideration, the law of contempt and the protection which it confers have centred on the exercise by the courts of the summary jurisdiction which has no parallel in the realm of federal tribunals such as the Commission.

1. Gallagher v. Durack (1983), 152 C.L.R., at p. 243.

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.

This conclusion leads me into the second point of relevance to the issue of proportionality. In deciding an issue of proportionality in the context of the incidental scope of a substantive legislative power, the Court must take account of and scrutinize with great anxiety the adverse impact, if any, of the impugned law on such a fundamental freedom as freedom of expression, particularly when that impact impairs freedom of expression in relation to public affairs and freedom to criticize public institutions. Recognition of the paramount importance of freedom of expression and of criticism of public institutions has strongly influenced the formulation of the principles of the law of contempt. It is inevitable that recognition of that importance must govern the Court's present decision on whether s. 299(1)(d)(ii) has a relevant connexion with the subject matter of the legislative power.

It follows that, in my opinion, such a connexion is absent and that the provision is not supported by s. 51(xxxv) and s. 51(xxxix). In reaching this conclusion, I have not found it necessary to deal with the applicant's arguments based on the existence of an implied guarantee of freedom of communication on matters of public affairs and an express guarantee of freedom of communication contained in s. 92.

I am unable to discern any manifestation of legislative intention which would enable the Court to save the validity of any part of the provision. The reasons which I have given for refusing to read the provision in accordance with the principles of the law of contempt and the law of defamation are relevant to this conclusion.

It is for these reasons that I concluded that the questions in the stated case should be answered as follows:

Nationwide News Pty. Ltd. ("the defendant") is the holding company of the proprietor of The Australian, a newspaper with a circulation throughout Australia. On 6 June 1990, the prosecutor laid an information for an offence alleging that the defendant "on the 14th day of November 1989 at Sydney in the State [of New South Wales] did by writing use words calculated to bring the Australian Industrial Relations Commission into disrepute, contrary to s. 299(1)(d)(ii) of the Industrial Relations Act 1988 ". The information relates to an article written by the late Mr. Maxwell Newton and published in The Australian on 14 November 1989 under the heading "Advance Australia Fascist". Section 299(1) of the Industrial Relations Act 1988 Cth ("the Act") reads as follows:

(a) wilfully insult or disturb a member of the Commission in the exercise of powers, or the performance of functions, as a member;

(c) use insulting language towards a member of the Commission exercising powers, or performing functions, as a member; or

(i) to influence improperly a member of the Commission or a witness before the Commission; or

(ii) to bring a member of the Commission or the Commission into disrepute.

(a) in the case of a natural person - $500 or imprisonment for 6 months, or both; and

The defendant challenged the validity of s. 299(1)(d)(ii) and Wilcox J. stated for the opinion of the Full Court of the Federal Court a case reserving the question, inter alia:

Is s. 299(1)(d)(ii) of the Industrial Relations Act 1988 Cth a valid law of the Commonwealth within the provisions of the Australian Constitution? So much of the proceedings pending in the Federal Court as involves the interpretation of the Constitution was removed into this Court pursuant to s. 40(1) of the Judiciary Act 1903 Cth. After argument on the question removed, a further case was stated by the Chief Justice, and the matter was relisted and further argued. The case stated by the Chief Justice set out facts on which the defendant seeks to rely in order to claim immunity under s. 92 of the Constitution with respect to the publication of the matter complained of in the information. Those facts are set out in pars 1-12 of the case; par. 13 of the case states: At the hearing of the information the respondent [the prosecutor] intends to rely, in support of the charge, on the printing, publication, and (insofar as it may be material) distribution, for sale, of the relevant edition of the newspaper in Sydney, New South Wales, and not upon its transmission to, printing, publication or distribution for sale in, other places. The case reserves two sets of questions for the opinion of the Full Court of this Court, the first set relating to the circumstances mentioned in pars 1-12 of the case, the second relating to the circumstances mentioned in pars 1-13. The first set of questions reads as follows:

(a) Is s. 299(1)(d)(ii) of the Industrial Relations Act invalid?

(b) Does s. 92 of the Constitution prevent the application of s. 299(1)(d)(ii) of the Industrial Relations Act to the printing, publication and distribution for sale by the applicant of the article by Mr. Maxwell Newton in The Australian newspaper on 14 November 1989?

(c) Does any guarantee implied by the Constitution prevent the application of s. 299(1)(d)(ii) of the Industrial Relations Act to the printing, publication and distribution for sale by the applicant of the article by Mr. Maxwell Newton in The Australian newspaper on 14 November 1989?

The second set of questions raises substantially the same issues but focuses on par. 13 and accordingly omits reference to "distribution" of The Australian.

In its final form, the defendant's challenge to the validity of s. 299(1)(d)(ii) of the Act falls under two heads: (1) implied in the Constitution there is a guarantee of a freedom to voice criticisms of governmental institutions subject to reasonable legal restraints and s. 299(1)(d)(ii) offends that guarantee; (2) s. 299(1)(d)(ii) is a restriction on the content of an interstate communication in excess of the limits of reasonable regulation and, on that account, is struck down by s. 92 of the Constitution or, alternatively, there is implied in the Constitution a limited freedom to communicate between a State and Territories criticisms of instrumentalities of the Commonwealth Government subject to reasonable legal restraints. We must start our consideration of the validity of s. 299(1)(d)(ii) by ascertaining its operation.

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] :

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.

The scope of par. (d)(ii) is significantly broader than the scope of that part of the law of contempt by which the repute of courts is protected. That part of the law of contempt known, archaically, as "scandalizing the court", is designed to prevent public confidence in the courts from being shaken by attacks that are baseless and unwarrantable [12] . The jurisdiction to punish for contempt, as Rich J. said in R. v. Dunbabin; Ex parte Williams [13] -

is not given for the purpose of protecting the Judges personally from imputations to which they may be exposed as individuals. 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. Thus it has been said [14] that it is no contempt of court to criticize court decisions when the criticism is fair and not distorted by malice and the basis of the criticism is accurately stated. To the contrary, a public comment fairly made on judicial conduct that is truly disreputable (in the sense that it would impair the confidence of the public in the competence or integrity of the court) is for the public benefit [15] . It is not necessary, even if it be possible, to chart the limits of contempt scandalizing the court. It is sufficient to say that the revelation of truth - at all events when its revelation is for the public benefit - and the making of a fair criticism based on fact do not amount to a contempt of court though the truth revealed or the criticism made is such as to deprive the court or judge of public confidence. The critical difference between the scope of s. 299(1)(d)(ii) and the scope of contempt of court is that the latter does not purport to suppress justifiable or fair and reasonable criticism which exposes grounds for loss of official repute, but s. 299(1)(d)(ii) purports to suppress all criticism which is likely to bring the Commission into disrepute including criticism that is justifiable, fair and reasonable. 1. Gallagher v. Durack (1983), 152 C.L.R. 238, at p. 243. 2. (1935) 53 C.L.R. 434, at p. 442. 3. R. v. Fletcher; Ex parte Kisch (1935), 52 C.L.R. 248, at pp. 257-258. 4. See R. v. Nicholls (1911), 12 C.L.R. 280, at p. 286.

Nor is s. 299(1)(d)(ii) comparable with the law of sedition. It is sufficient for the purposes of par. (d)(ii) that an attack is calculated to bring the Commission or a member into disrepute, but sedition involves an excitement to disaffection against the Sovereign, the Constitution or the institutions of government [16] . Criticism of a merely political kind directed at the holders of public office for the time being, even if it brings those holders of office into disrepute, does not amount to sedition [17] . There is nothing in the text or context of s. 299(1)(d)(ii) which suggests that its operation should be limited in the same way as the law of contempt is limited, or which suggests that the disrepute to which it refers should be understood as the equivalent of disaffection in the law of sedition. Section 299(1)(d)(ii) purports to apply without qualification to any speech or writing that is calculated to bring the Commission or a member into disrepute in a respect relevant to the performance of official functions.

1. Burns v. Ransley (1949), 79 C.L.R. 101, at pp. 110, 111, 115; R. v. Sharkey (1949), 79 C.L.R. 121, at pp. 135-136, 145, 148. 2. Burns v. Ransley (1949), 79 C.L.R., at p. 115.

By protecting the Commission and its members from erosion of public confidence and from erosion of acceptance of its authority, par. (d)(ii) reveals a sufficiently substantial connexion with conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State to find support in s. 51(xxxv) of the Constitution [18] . Where a head of legislative power in s. 51 of the Constitution supports a law creating an institution in which a Commonwealth power is reposed and the fulfilment of the purpose for which the power is reposed is facilitated by protecting the repute of the institution, a law protecting that repute from attack is a law with respect to the subject of the head of power [19] . But that is not conclusive of the law's validity, for s. 51 is expressed to be "subject to this Constitution".

1. See Fairfax v. Federal Commissioner of Taxation (1965), 114 C.L.R. 1, at p. 7; Melbourne Corporation v. The Commonwealth (1947), 74 C.L.R. 31, at p. 79. 2. There may be some analogy, albeit imperfect, in the protective provisions considered in Australian Coastal Shipping Commission v. O'Reilly (1962), 107 C.L.R. 46, at p. 55, and in Actors and Announcers Equity Association of Australia v. Fontana Films Pty. Ltd. (1982), 150 C.L.R. 169, at p. 183.

In Bourke v. State Bank of New South Wales [20] , this Court held that the powers of the Parliament conferred by s. 51 are -

subject to such express limitations upon Commonwealth legislative power as the Constitution contains, as well as to certain implied restrictions which have been recognized by this Court: see, e.g., Melbourne Corporation; Queensland Electricity Commission v. The Commonwealth [21] ; State Chamber of Commerce and Industry v. The Commonwealth ("the Second Fringe Benefits Tax Case ") [22] .

1. (1985) 159 C.L.R. 192. 2. (1987) 163 C.L.R. 329.

In this context, some qualification must be made to the general principle that a law with respect to a subject matter within Commonwealth power does not cease to be valid because it affects a subject outside power or can be characterized as a law with respect to a subject matter outside power: Actors and Announcers Equity Association of Australia v. Fontana Films Pty. Ltd. [23] ; The Commonwealth v. Tasmania (the Tasmanian Dam Case) [24] . The principle cannot apply when the second subject matter with respect to which the law can be characterized is not only outside power but is the subject of a positive prohibition or restriction.

1. (1982) 150 C.L.R., at pp. 192, 221-222. 2. (1983) 158 C.L.R. 1, at pp. 150-152, 179-180, 200, 215, 270. Is there a positive prohibition or restriction implied in the Constitution which invalidates a law which suppresses all writing or speech calculated to bring the Commission or a member of the Commission into disrepute in respect of the performance of official functions? That question calls for an examination of the approach to be adopted in drawing an implication from the Constitution and the nature of any implication to be drawn in this case.
   1. (1990) 170 C.L.R. 276, at pp. 284-285.
   2. (1985) 159 C.L.R. 192.
   3. (1987) 163 C.L.R. 329.
   4. (1982) 150 C.L.R., at pp. 192, 221-222.
   5. (1983) 158 C.L.R. 1, at pp. 150-152, 179-180, 200, 215, 270.

The majority judgment in the Engineers' Case [25] cited with approval a passage from the judgment of Lord Selborne in Reg. v. Burah [26] :

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.

Once it is understood that the interpretation of the Constitution involves the revealing of implications that are already in its text, it is futile to search for limitations derived aliunde. That was the interpretative fallacy exposed by the Engineers' Case where the implications rejected by the Court were those which were "not the result of interpreting any specific language to be quoted, nor referable to any recognized principle of the common law of the Constitution" [36] . The notion that some powers are reserved to the States and the theory that there is a static balance between the powers of the Commonwealth and the powers of the States find no textual foothold in the Constitution.

Nor is it permissible to read down an express grant of legislative power in order to prevent the possibility of its abuse. The position under our Constitution was thus stated by the majority in the Engineers' Case [37] :

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.

The courts cannot assume a jurisdiction which the Constitution does not confer. A court cannot hold a law invalid merely on the ground that the law is not for the peace, order and good government of the Commonwealth as the court sees it. The only foundation for judicial review of legislation is the subjection of both the Parliament and the courts to the supreme law of the Constitution [41] and the Constitution reposes the function of determining whether a proposed law is for the peace, order and good government of the Commonwealth in the Parliament exclusively. The courts are concerned with the extent of legislative power but not with the wisdom or expedience of its exercise. If the courts asserted a jurisdiction to review the manner of a legislative power, there would be no logical limit to the grounds on which legislation might be brought down [42] .

1. See Federal Commissioner of Taxation v. Munro (1926), 38 C.L.R. 153, at p. 180; Australian Communist Party v. The Commonwealth (1951), 83 C.L.R. 1, at pp. 262-263. 2. As Kirby P. pointed out in Building Construction Employees & Builders' Labourers Federation (N.S.W.) v. Minister for Industrial Relations (1986), 7 N.S.W.L.R. 372, at p. 405. See also Zines, Constitutional Change in the Commonwealth (1991), pp. 46-52.

However, it is entirely consistent with the Engineers' Case [43] to hold that limitations on the powers expressly granted by s. 51 of the Constitution may be implied in and from the text of the Constitution. I would repeat what I said in Queensland Electricity Commission v. The Commonwealth [44] :

The Constitution summoned the Federation into existence and maintains it in being. Any implication affecting the specific powers granted by the Constitution must be drawn from the Constitution itself. It is impermissible to construe the terms of the Constitution by importing an implication from extrinsic sources when there is no federation save that created by the express terms of the Constitution itself. 1. See also the Tasmanian Dam Case (1983), 158 C.L.R., at pp. 129, 254. 2. (1985) 159 C.L.R., at p. 231.

In considering whether a particular limitation on a grant of power is implied in the Constitution, the text of the Constitution must be read in the light of the general law, as the majority judgment in the Engineers' Case declared. To adopt the words of Sir Owen Dixon, "constitutional questions should be considered and resolved in the context of the whole law, of which the common law, including in that expression the doctrines of equity, forms not the least essential part" [45] . Reading the Constitution in the context of the whole law, is there any relevant implication of a prohibition or restriction on the power to enact s. 299(1)(d)(ii)?

1. "The Common Law as an Ultimate Constitutional Foundation" Australian Law Journal, vol. 31 (1957) 240, at p. 245, reprinted in Jesting Pilate (1965) 203, at pp. 212-213.

The Commission is established and its existence is maintained by Div. 1 of the Act. The objects of the Act, set out in s. 3, reveal the political and economic purposes which the Parliament intends the provisions of the Act in general and its central institution (the Commission) in particular to fulfil. Those objects include:

(b) to provide a framework for the prevention and settlement of industrial disputes by conciliation and arbitration in a manner that minimises the disruptive effects of industrial disputes on the community; and

(c) to ensure that, in the prevention and settlement of industrial disputes, proper regard is had to the interests of the parties immediately concerned and to the interests (including the economic interests) of the Australian community as a whole; and

(e) to provide for the observance and enforcement of agreements and awards made for the prevention or settlement of industrial disputes; and

(g) to encourage the democratic control of organisations, and the participation by their members in the affairs of organisations; and

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.

The Constitution brought into existence repositories of legislative, executive and judicial power (ss. 1, 61 and 71 of the Constitution); it also created a federal system of government in which the Houses of the Parliament are chosen by the people: ss. 7 and 24. Stephen J. said in Attorney-General (Cth); Ex rel. McKinlay v. The Commonwealth [50] :

Three great principles, representative democracy (by which I mean that the legislators are chosen by the people), direct popular election, and the national character of the lower House, may each be discerned in the opening words of s. 24 [of the Constitution]. Moreover, a Minister of State cannot hold office for more than three months unless he or she is a member of one of the Houses of the Parliament: s. 64. The Constitution, either expressly or in conjunction with the common law of the Constitution, prescribes a further principle of responsible government [51] . The principles referred to by Stephen J. and the principle of responsible government are constitutional imperatives which are intended - albeit the intention is imperfectly effected - to make both the legislative and executive branches of the government of the Commonwealth ultimately answerable to the Australian people [52] . Under the Westminster model, these principles might be trespassed upon by legislation emanating from an omnicompetent Parliament but the Parliament of the Commonwealth is incompetent to alter the principles prescribed by the Constitution to which it owes its existence. It is a Constitution the text of which the people alone can change: s. 128. 1. (1975) 135 C.L.R. 1, at p. 56. 2. The Engineers' Case (1920), 28 C.L.R., at p. 147; The Commonwealth v. Kreglinger & Fernau Ltd. and Bardsley (1926), 37 C.L.R. 393, at p. 413; The Commonwealth v. Colonial Combing, Spinning & Weaving Co. Ltd. (1922), 31 C.L.R. 421, at p. 446. 3. See Sir Samuel Griffith's Notes on Australian Federation (Brisbane Government Printer 1896), pp. 17-18, cited by Quick & Garran, Annotated Constitution of the Australian Commonwealth (1901), pp. 703-704.

To sustain a representative democracy embodying the principles prescribed by the Constitution, freedom of public discussion of political and economic matters is essential [53] : it would be a parody of democracy to confer on the people a power to choose their Parliament but to deny the freedom of public discussion from which the people derive their political judgments. I respectfully agree with Lord Simon of Glaisdale when he said in Attorney-General v. Times Newspapers [54] :

The first public interest involved is that of freedom of discussion in democratic society. People cannot adequately influence the decisions which affect their lives unless they can be adequately informed on facts and arguments relevant to the decisions. Much of such fact-finding and argumentation necessarily has to be conducted vicariously, the public press being a principal instrument. Freedom of public discussion of government (including the institutions and agencies of government) is not merely a desirable political privilege; it is inherent in the idea of a representative democracy. As McIntyre J. observed in Retail, Wholesale & Department Store Union v. Dolphin Delivery Ltd. [55] : Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection. 1. As the European Court of Human Rights recognized in The Observer and the Guardian v. United Kingdom (1991), 14 E.H.R.R. 153, at p. 178. 2. [1974] A.C. 273, at p. 315; see also per Mason J. in The Commonwealth v. John Fairfax & Sons Ltd. (1980), 147 C.L.R. 39, at p. 52; Hector v. Attorney-General (Antigua), [1990] 2 A.C. 312, at p. 318. 3. (1986) 33 D.L.R. (4th) 174, at p. 183.

However, at common law there is no right to free discussion of government [56] . Freedoms or immunities recognized by the common law are, generally speaking, liable to impairment or abrogation by legislation. Hence, to quote A.V. Dicey [57] , it is "essentially false" to say that "the right to the free expression of opinion, and especially that form of it which is known as the "liberty of the press", are fundamental doctrines of the law of England and that our courts recognize the right of every man to say and write what he pleases, especially on social, political, or religious topics without fear of legal penalties". But the fragility of the common law "right" to the free expression of opinion is in part due to the absence of a constitutional entrenchment of the form of government which the public discussion of political and economic matters is required to sustain. In legal theory, it may be possible [58] - it is not for this Court to say - for the Parliament at Westminster to abolish freedom of speech in the United Kingdom and thereby destroy the representative democracy which has been so entrenched in practice. But where a representative democracy is constitutionally entrenched, it carries with it those legal incidents which are essential to the effective maintenance of that form of government. Once it is recognized that a representative democracy is constitutionally prescribed, the freedom of discussion which is essential to sustain it is as firmly entrenched in the Constitution as the system of government which the Constitution expressly ordains [59] . Thus, when the validity of a Provincial Bill was challenged before the Supreme Court of Canada on the ground that it purported to authorize an excessive suppression of public political and economic discussion, Duff C.J. (with the concurrence of Davis J.) [60] said in reference to the system of government prescribed by The British North America Act 1867 Imp. [61] :

Without entering in detail upon an examination of the enactments of the Act relating to the House of Commons, it can be said that these provisions manifestly contemplate a House of Commons which is to be, as the name itself implies, a representative body; constituted, that is to say, by members elected by such of the population of the united provinces as may be qualified to vote. The preamble of the statute, moreover, shows plainly enough that the constitution of the Dominion is to be similar in principle to that of the United Kingdom. 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.

The right of public discussion is, of course, subject to legal restrictions; those based upon considerations of decency and public order, and others conceived for the protection of various private and public interests with which, for example, the laws of defamation and sedition are concerned. In a word, freedom of discussion means, to quote the words of Lord Wright in James v. Commonwealth [62] , "freedom governed by law."

Even within its legal limits, it is liable to abuse and grave abuse, and such abuse is constantly exemplified before our eyes; but it is axiomatic that the practice of this right of free public discussion of public affairs, notwithstanding its incidental mischiefs, is the breath of life for parliamentary institutions. (Emphasis added.)

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.

By parity of reasoning, the representative democracy ordained by our Constitution carries with it a comparable freedom for the Australian people and that freedom circumscribes the legislative powers conferred on the Parliament by the Constitution. No law of the Commonwealth can restrict the freedom of the Australian people to discuss governments and political matters unless the law is enacted to fulfil a legitimate purpose and the restriction is appropriate and adapted to the fulfilment of that purpose [64] .

That being so, are "the limits set by the criminal code and the common law" applicable under our Constitution? To say that freedom to discuss governments and political matters is essential to the existence of a representative democracy is not to define with any precision the limitation on legislative power implied in the Constitution. A freedom of the kind postulated leaves open to debate the extent to which that freedom can be trenched upon in order to protect other interests which are protected in a legal system modelled on Westminster, for example, the interests of justice, personal reputation or the community's sense of decency. The balancing of the protection of other interests against the freedom to discuss governments and political matters is, under our Constitution, a matter for the Parliament to determine and for the Courts to supervise. I would state the governing implication in these terms: the Constitution prohibits any legislative or executive infringement of the freedom to discuss governments and governmental institutions and political matters except to the extent necessary to protect other legitimate interests and, in any event, not to an extent which substantially impairs the capacity of, or opportunity for, the Australian people to form the political judgments required for the exercise of their constitutional functions. Although s. 51(xxxv) empowers the Parliament to enact a law protecting the Commission's capacity to perform its functions, that power does not extend so far as to authorize a law prohibiting justifiable and fair and reasonable criticism of the Commission as an important instrument of government. As Dixon J. said in Australian Communist Party v. The Commonwealth [65] :

In point of constitutional theory the power to legislate for the protection of an existing form of government ought not to be based on a conception, if otherwise adequate, adequate only to assist those holding power to resist or suppress obstruction or opposition or attempts to displace them or the form of government they defend. 1. (1951) 83 C.L.R., at pp. 187-188.

The implied limitation on legislative power to protect an institution of government or some other legitimate interest is a matter of degree [66] and its effect depends on the particular circumstances. In considering the extent to which the freedom of discussion can be curtailed in protection of another interest, the material factors include the practicability of protection by a less severe curtailment of the freedom and the extent to which the protection of the other interest itself enhances the ability of the Australian people to enjoy their democratic rights and privileges. The circumstances which may affect the extent to which the freedom can be curtailed include the exigencies of defence or national security and the contemporary risk to other interests which are in need of protection. A recognition of the distinction between a legitimate curtailing of the freedom of discussion in order to protect the interests of a free and stable society and an impermissible curtailing of the freedom that substantially impairs the capacity of the Australian people to exercise their constitutional functions appears in the judgment of Latham C.J. in Burns v. Ransley [67] :

The prevention and punishment of intentional excitement of disaffection against the Sovereign and the Government is a form of protective law for this purpose which is to be found as a normal element in most, if not all, organized societies. I agree that the Commonwealth Parliament has no power to pass a law to suppress or punish political criticism, but excitement to disaffection against a Government goes beyond political criticism. 1. As Walsh J. said in the Payroll Tax Case (1971), 122 C.L.R., at p. 410, the phrase " "undue interference" provides no satisfactory means for determining what is "undue" ". 2. (1949) 79 C.L.R., at p. 110. See also at p. 111, per Rich J.

The role of the court in judicially reviewing a law that is said to curtail the freedom unduly and thereby to exceed legislative power is essentially supervisory. It declares whether a balance struck by the Parliament is within or without the range of legitimate legislative choice. In a society vigilant of its democratic rights and privileges, it might be expected that the occasions when the Parliament deliberately steps outside the range of legitimate choice would be few. In the present case where, in my opinion, s. 299(1)(d)(ii) does step outside the range of legitimate choice, it is tempting to speculate that the excessive curtailing of the freedom to discuss an institution of government is the consequence of a drafting error rather than the result of deliberate legislative choice.

The limitation on legislative power implied in the Constitution does not bring into question the validity of those laws which Cannon J. described as "the criminal code and the common law" [68] . Those laws strike an appropriate balance between the postulated freedom of discussion and the private or public interest which is protected by the curtailing of the freedom (e.g., the plaintiff's reputation under the law of defamation or the preservation of the institutions of government under the law of sedition). Of course, in Australia "the criminal code and the common law" are, for the most part, subject to the legislative power of the States whereas the implication with which we are here concerned is a limitation on the legislative power of the Commonwealth. True it is that the limitation, being implied in the Constitution, may be capable of affecting the laws of a State, at least if those laws purport to impair the exercise by the people of their democratic rights and privileges in federal matters. However, it is unnecessary now to consider that question or to consider the effect of the implied limitation on ss. 106 and 107 of the Constitution.

1. [1938] S.C.R., at p. 146; [1938] 2 D.L.R., at p. 119.

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.

The article was disseminated either in printed form or by a form of facsimile transmission which permitted the article to appear in newspapers printed in the place where the facsimile was received. The geographical source of the article disseminated in these ways was Sydney and the dissemination was throughout New South Wales and to the other States and Territories of the Commonwealth. These facts, stated in more detail in pars. 1-12 of the case stated by the Chief Justice, were said to attract the operation of s. 92 of the Constitution. Then, so the argument goes, s. 299(1)(d)(ii) of the Act impaired the freedom of interstate intercourse required by s. 92. To avoid the test propounded in Cole v. Whitfield for determining the validity of a law affecting interstate trade and commerce, the defendant relied on some passages from the judgment in that case to distinguish the present case from cases where the freedom of trade and commerce is impaired:

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. [1] And again: [I]t 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 Once this is accepted, as it must be, there is no reason in logic or commonsense for insisting on a strict correspondence between the freedom guaranteed to interstate trade and commerce and that guaranteed to interstate intercourse. [2] Submitting that the communication of any form of information or any expression of ideas across a State border is a species of "intercourse among the States", the defendant contended that s. 92 precluded any restrictions on the content of the communication "save those which are necessary for the reasonable regulation and adjustment of the competing interests of people in the community at large". 1. (1988) 165 C.L.R. 360, at p. 388. 2. ibid., at pp. 393-394.

Section 92 has been said [3] to be "an absolute prohibition on the Commonwealth and States alike to regard State borders as in themselves possible barriers to intercourse between Australians". The proposition that s. 92 is an "absolute prohibition" is itself stated too absolutely, but the notion that intercourse among Australians in different States can be carried on without regard to State borders is substantially correct.

1. R. v. Smithers; Ex parte Benson (1912), 16 C.L.R. 99, at p. 117, per Isaacs J.

Although the conception of "intercourse" is distinct from the conception of "trade" or of "commerce", instances of intercourse may be, and frequently are, instances of trade and commerce. The composite phrase "trade, commerce and intercourse among the States", as Dixon J. said in Bank of N.S.W. v. The Commonwealth [4] , attracts the guarantee of freedom from restriction "to a broad category of interchange, converse and dealings between States in the affairs of life". His Honour expanded on the generality of the phrase [5] :

[T]he expression "trade commerce and intercourse" in s. 92 covers intangibles as well as the movement of goods and persons. The supply of gas and the transmission of electric current may be considered only an obvious extension of the movement of physical goods. But it covers communication. The telegraph, the telephone, the wireless may be the means employed. It includes broadcasting and, no doubt, it will take in television. In principle there is no reason to exclude visual signals. The conception [of commerce] covers, in the United States, the business of press agencies and the transmission of all intelligence, whether for gain or not. Transportation, traffic, movement, transfer, interchange, communication, are words which perhaps together embrace an idea which is dominant in the conception of what the commerce clause requires. But to confine the subject matter to physical things and persons would be quite out of keeping with all modern developments.

The very manner in which [the words "trade commerce and intercourse"] are combined would carry, even to a mind unfamiliar with their background, an intention to include all forms and variety of interstate transaction whether by way of commercial dealing or of personal converse or passage.

1. (1948) 76 C.L.R. 1, at p. 380. 2. ibid., at pp. 381-382.

The characteristic of every phenomenon falling within the section, however, is geographical movement. Each of the terms "trade, commerce and intercourse" in s. 92 is qualified by the phrase "among the States" and that qualification is essential to attract the operation of the section. There must be some border-crossing involved before any phenomenon of trade, commerce or intercourse comes within the reach of the section [6] . The protection of s. 92 is given to the movement of people, the transport of goods, the transmission of communications, the passage of signals of any kind and any other means by which "interchange, converse and dealings between States in the affairs of life" are carried on across State boundaries. The protection is given to the movement of persons and things across the border or, in the case of intangibles, to the means by which their movement is effected. The means of movement will vary with what is moved; it is not essential that the means of movement be physically perceptible. But it is essential that something (or some person) be moved. Ideas cannot be moved. They have no geographical location. The expression of ideas, whether in literary or other form, can be moved and a movement of that kind across State borders is capable of attracting the operation of s. 92.

1. See Hospital Provident Fund Pty. Ltd. v. Victoria (1953), 87 C.L.R. 1, at pp. 14-15; McGraw-Hinds (Aust.) Pty. Ltd. v. Smith (1979), 144 C.L.R. 633, at pp. 645, 659.

Although the section guarantees freedom of movement or the means of movement across State borders, it is the nature of the transaction in which the interstate movement occurs that determines the burdens, restrictions, controls or standards (hereafter "burdens") from which the movement must be absolutely free [7] . The freedom guaranteed to interstate intercourse by s. 92 denies the validity of any law the purpose or effect of which is simply the prohibition or impeding of movement between States in any of the ways in which intercourse is carried on. But, as this Court said in Cole v. Whitfield [8] :

[t]hat 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. The problem is to determine what restriction or regulation is compatible with the freedom guaranteed to interstate intercourse by s. 92. 1. See Cole v. Whitfield (1988), 165 C.L.R., at p. 394. 2. ibid., at p. 393.

Section 92 operates by invalidating what would otherwise be a valid exercise of legislative power where the law imposes an impermissible burden on a protected interstate transaction. Where a law imposes a discriminatory and protectionist burden on interstate trade or commerce, s. 92 invalidates the law in so far as it imposes such a burden. In such a case the impermissible burden may be imposed by a law which exhibits no discrimination on its face but which is discriminatory in effect [9] or it may be imposed not directly on the movement of the integers of trade or commerce across the border but on subsequent dealings with them [10] . The burden is nevertheless seen as a burden on the interstate movement, an impairment of "freedom as at the frontier" [11] , for the crossing of the border is in effect if not in form the criterion of discrimination. Cole v. Whitfield was concerned to identify the character of the burdens imposed by laws which impair the freedom of interstate trade and commerce. In doing so, the judgment left open the character of the burdens imposed by laws which impair the freedom of interstate intercourse [12] .

1. Castlemaine Tooheys Ltd. v. South Australia (1990), 169 C.L.R. 436, at pp. 466-467, 471-472. 2. As in North Eastern Dairy Co. Ltd. v. Dairy Industry Authority of N.S.W. (1975), 134 C.L.R. 559, at pp. 577, 599-600, 605-606, 624-625, where the transaction was said to include the sale of an imported commodity. Cf. Street v. Queensland Bar Association (1989), 168 C.L.R. 461, at p. 540, for an example of an interstate transaction which does not include the fulfilment of the purpose for which the border is crossed. 3. James v. The Commonwealth, [1936] A.C., at p. 630. 4. (1988) 165 C.L.R., at p. 393.

While the freedom of interstate trade and commerce predicates an absence of discrimination between interstate and intrastate trade and commerce, discrimination is not an essential feature of an impermissible burden imposed on interstate intercourse. Of course, the appearance of discrimination against interstate intercourse of a particular kind and in favour of intrastate intercourse of a like kind would be a badge of invalidity. But discrimination in that sense is not an indicium of invalidity of a law burdening interstate intercourse. The general criterion of invalidity of a law which places a burden on interstate intercourse is that the law is enacted for the purpose of burdening interstate intercourse. If the law is enacted for some other purpose then, provided the law is appropriate and adapted to the fulfilment of that other purpose, an incidental burdening of interstate intercourse may not be held to invalidate the law. A law may be found to be enacted for the prohibited purpose by reference to its meaning or by reference to its effect. If a law imposes a burden by reason of the crossing of the border, as in R. v. Smithers; Ex parte Benson [13] and in Gratwick v. Johnson [14] , the law offends s. 92 unless it falls into one of the exceptional categories presently to be mentioned. Similarly, a law which has the effect of preventing or impeding the crossing of the border will be held invalid if the circumstances are such as to show that that is its only or chief purpose. There are exceptions to these propositions.

1. (1912) 16 C.L.R., where Higgins J. observed at p. 118 that the law was "pointed directly at the act of coming into New South Wales". 2. (1945) 70 C.L.R. 1, discussed in Miller v. TCN Channel Nine Pty. Ltd. (1986), 161 C.L.R. 556, at p. 603, and in Cole v. Whitfield (1988), 165 C.L.R., at p. 406.

Cases prior to Cole v. Whitfield admitted the validity of laws for the protection of a State against the introduction into the State of animal [15] and plant [16] diseases, noxious drugs [17] , gambling materials and pornography [18] . The Privy Council said that permissible regulation of trade might take the form "of excluding from passage across the frontier of a State creatures or things calculated to injure its citizens" [19] . Where the true character of a law, ascertained by reference to the "grounds and design of the legislation, and the primary matter dealt with, [and] its object and scope" [20] , is to protect the State or its residents from injury, a law which expressly prohibits or impedes movement of the apprehended source of injury across the border into the State may yet be valid [21] . After Cole v. Whitfield, these cases need not be seen as exceptions to a general invalidation of laws impairing the guaranteed freedom of interstate trade and commerce, but the reasoning in these cases is material to the scope of the guaranteed freedom of interstate intercourse.

1. Ex parte Nelson [No. 1] (1928), 42 C.L.R. 209, at pp. 218-219. 2. Tasmania v. Victoria (1935), 52 C.L.R. 157, at pp. 168-169. 3. The Commonwealth v. Bank of N.S.W. (1949), 79 C.L.R. 497, at p. 641; [1950] A.C. 235, at pp. 311-312. 4. R. v. Connare; Ex parte Wawn (1939), 61 C.L.R. 596, at pp. 620, 628; see also Mansell v. Beck (1956), 95 C.L.R. 550. 5. The Commonwealth v. Bank of N.S.W. (1949), 79 C.L.R., at p. 641; [1950] A.C., at p. 312. See also Fergusson v. Stevenson (1951), 84 C.L.R. 421, at pp. 434-435, and the views of Inglis Clark in Studies in Australian Constitutional Law (1901), p. 146, and of Harrison Moore in The Constitution of the Commonwealth of Australia, 2nd ed. (1910), p. 571, and cf. Quick & Garran, op. cit., pp. 850-853. 6. Ex parte Nelson [No. 1] (1928), 42 C.L.R., at p. 218. 7. Chapman v. Suttie (1963), 110 C.L.R. 321, at p. 341. However, the severity of and need for the prohibitory measure are relevant considerations: Tasmania v. Victoria (1935), 52 C.L.R., at pp. 168-169.

Although State borders are not to be regarded "as in themselves possible barriers to intercourse between Australians", they do mark the territorial end of one area of legislative competence and the territorial beginning of another. Since State legislative competence is maintained by ss. 106 and 107 of the Constitution, s. 92 cannot transform a mere change in legal regime applicable to a person, thing or intangible that is moved across a State boundary into an impermissible burden on that movement. The change in the legal regime on one side of the border may impose a burden that is not imposed on the other, but that is not enough in itself to amount to an impermissible burden. Nor does s. 92 purport to place interstate intercourse in a position where it is immune from the operation of laws of general application which are not aimed at interstate intercourse. The object of s. 92 is to preclude the crossing of the border from attracting a burden which the transaction would not otherwise have to bear; its object is not to remove a burden which the transaction would otherwise have to bear if there were no border crossing. Section 92 does not invalidate laws that do not select a movement across a State border as a criterion of the imposition of the burden but do have the effect of burdening interstate intercourse provided (1) the law is enacted chiefly for a purpose other than preventing or impeding a crossing of a State border, (2) the imposition of the burden is appropriate and adapted to the fulfilment of the other purpose [22] and (3) the prevention or impediment to border crossing is an incidental and necessary consequence of the law's operation [23] .

1. Cf. Castlemaine Tooheys Ltd. v. South Australia (1990), 169 C.L.R., at pp. 471-472, where a corresponding requirement in relation to freedom of interstate trade and commerce is discussed. 2. R. v. Connare; Ex parte Wawn (1939), 61 C.L.R., at p. 616.

Of course, many transactions which constitute interstate trade and commerce equally constitute interstate intercourse, but it does not follow that the protection with which s. 92 clothes a single interstate movement requires the transaction to be classified exclusively as either trade and commerce or as intercourse. The protection which s. 92 gives to a particular interstate movement is indirect: it invalidates a law which would otherwise apply to an interstate movement where the law imposes an impermissible burden on transactions of the kind in which the particular movement occurs. This view of the operation of s. 92 found some support even before Cole v. Whitfield [24] and, since Cole v. Whitfield, replaces the "individual rights" theory of s. 92 which had prevailed at one time [25] . In accordance with this view, the validity of a law affecting interstate trade and commerce is now tested by reference to its discriminatory and protectionist effect [26] . A law which imposes a burden on interstate trade or commerce must satisfy the test propounded in Cole v. Whitfield if it is to escape invalidity; a law which imposes a burden on a category of interstate intercourse (whether or not it is also a category of interstate trade or commerce) must satisfy a test stated in the terms discussed in this judgment. If one law applies to a movement because the movement occurs in a transaction of interstate trade and commerce and another law applies to the same movement because it is an instance of interstate intercourse, it is necessary to determine the validity of each law in order to decide whether any burden legislatively imposed on the movement has been validly imposed.

1. See North Eastern Dairy Co. Ltd. v. Dairy Industry Authority of N.S.W. (1975), 134 C.L.R., at pp. 614-615; Clark King & Co. Pty. Ltd. v. Australian Wheat Board (1978), 140 C.L.R. 120, at p. 188, per Mason and Jacobs JJ.; Australian Coarse Grains Pool Pty. Ltd. v. Barley Marketing Board (1985), 157 C.L.R. 605, at pp. 649-650; Miller v. TCN Channel Nine Pty. Ltd. (1986), 161 C.L.R., at pp. 570-571, 609-610. 2. Barley Marketing Board (N.S.W.) v. Norman (1990), 171 C.L.R. 182, at p. 201. 3. See Castlemaine Tooheys Ltd. v. South Australia (1990), 169 C.L.R., at pp. 471ff.

In this case, s. 299(1)(d)(ii) imposes no discriminatory burden on any interstate communication. Therefore it does not infringe the freedom of interstate trade and commerce. The movement of the article (or the movement of the expression of the article) was not burdened in any way by s. 299(1)(d)(ii) of the Act. If that provision were held to prohibit its publication in any State to which the article had been disseminated other than New South Wales, the prohibition would be wholly unrelated to the fact that the article had been moved from one State to another. The purpose of s. 299(1)(d)(ii) is wholly unrelated to the placing of any burden on any movement across State boundaries. Section 92 thus has no application to s. 299(1)(d)(ii) of the Act and is therefore immaterial to the effect of that provision on the dissemination of the article or the lawfulness of its publication.

A further and alternative argument should be noted. That argument proposed a general freedom of communication between a State and the Territories of Australia based upon that freedom of access to government and the seat of government which has been acknowledged in the United States [27] and, to some extent, in Australia [28] . With respect, the existence of a freedom of access provides no basis for inferring a freedom to communicate between people in a State and people in the Territories of Australia. The former freedom is implied from the reposing of power in the central government of a representative democracy. It is implied by the necessity of providing access by the governed to the government. The freedom relevant to this case is a freedom among the governed to perform the functions and to exercise the privileges possessed by the people in a representative democracy. However, it is unnecessary to consider this argument in detail, for the invalidity of s. 299(1)(d)(ii) arises from another limitation on legislative power implied in the Constitution.

1. Crandall v. State of Nevada (1867), 73 U.S. 35 and Slaughterhouse Cases (1872), 83 U.S. 36, though the latter cases appear to turn on the particular provisions of the United States Constitution governing citizenship. 2. See R. v. Smithers; Ex parte Benson (1912), 16 C.L.R., at pp. 108, 109-110.

It remains to consider whether the operation of s. 299(1)(d)(ii) which is invalidated by the implied limitation can be severed from the area in which that provision could validly operate.

Section 299(1)(d)(ii) applies indiscriminately to cases where an attack on the Commission or its members is warranted and to cases where an attack is unwarranted. Had the provision been drawn so as to apply only to unwarranted attacks - the definition being a matter for the Parliament - it would have had a valid operation. Although the purpose of s. 15A of the Acts Interpretation Act is to reverse the presumption that a statute is to operate as a whole and to permit the general terms of an Act to be given a distributive operation and to sever its application to cases beyond power from its application to cases within power [29] , the court cannot be left to select for itself the area in which the statute should be left to operate. The court's function is to construe the statute in the light of s. 15A, not to assume the role of legislator and to re-enact a law within power [30] . "Where the law itself indicates a standard or test which may be applied for the purpose of limiting, and thereby preserving the validity of, the law, the case is different" [31] . Here the statute indicates no criterion for limiting its operation.

1. Bank of N.S.W. v. The Commonwealth (1948), 76 C.L.R., at pp. 369-371. 2. Australian Railways Union v. Victorian Railways Commissioners (1930), 44 C.L.R. 319, at p. 386; Strickland v. Rocla Concrete Pipes Ltd. (1971), 124 C.L.R. 468, at p. 493. 3. Pidoto v. Victoria (1943), 68 C.L.R. 87, at p. 109, per Latham C.J.; see also Strickland v. Rocla Concrete Pipes Ltd. (1971), 124 C.L.R., at pp. 492-495, 516-518; Pochi v. Macphee (1982), 151 C.L.R. 101, at p. 110; Re Nolan; Ex parte Young (1991), 172 C.L.R. 460, at pp. 485-487.

To define the area of valid operation of s. 299(1)(d)(ii), it would be necessary to define conditions limiting the operation of the provision to unwarranted attacks. The definition of those conditions is a function of legislation; it is not a function which the Court may properly perform. To apply s. 15A to read down s. 299(1)(d)(ii) so that it operated within power would require the Court to remould the provision according to its own notion of the desirable criteria by which to describe unwarranted attacks falling within the prohibition. That is a function for the Parliament to perform. Unless and until s. 299(1)(d)(ii) is redrafted, it must be construed as purporting to apply indiscriminately to all speech or writing which is calculated to bring the Commission or its members into disrepute. For the reasons stated, a provision having that operation is beyond power. Section 299(1)(d)(ii) is invalid.

The answer to the question in the case stated by Wilcox J. and removed into this Court is: No.

The answers to the questions in the case stated by the Chief Justice in this Court are as follows:

The applicant, Nationwide News Pty. Ltd ("Nationwide"), is the proprietor and publisher of The Australian newspaper (" The Australian " or "the newspaper"). The edition of the newspaper published on 14 November 1989 included an article headed "Advance Australia Fascist" ("the newspaper article") which had been contributed by a freelance journalist, the late Mr. Maxwell Newton, and which contained a virulent attack on the integrity and independence of what was referred to as the "Arbitration Commission" and its members. Among other things, the newspaper article asserted that the work of Australian workers "is regulated by a mass of official controls, imposed by a vast bureaucracy in the ministry of labour and enforced by a corrupt and compliant "judiciary" in the official Soviet-style Arbitration Commission". It went on to describe the members of the "Arbitration Commission" as "the corrupt labour "judges" ". At the time the article was published, the Industrial Relations Act 1988 Cth ("the Act") had established the Australian Industrial Relations Commission with conciliation and arbitration functions generally corresponding to those which had previously been discharged by the Commonwealth Conciliation and Arbitration Commission under the Conciliation and Arbitration Act 1904 Cth [1] . The case has been argued in this Court on the basis that the references in the newspaper article to the "Arbitration Commission" and its members should be understood as references to the Australian Industrial Relations Commission ("the Commission") and its members.

1. Repealed by the Industrial Relations (Consequential Provisions) Act 1988 Cth, s. 3.

On 6 June 1990, the respondent, who is an officer of the Australian Federal Police, laid an information before the Federal Court of Australia alleging that the applicant, by publishing the newspaper article, was guilty of an offence against s. 299(1)(d)(ii) of the Act in that it "did by writing use words calculated to bring the Australian Industrial Relations Commission into disrepute". In due course, it emerged in the Federal Court that Nationwide's defences included a claim that s. 299(1)(d)(ii) of the Act was invalid for the reason that its enactment was beyond the legislative powers of the Commonwealth Parliament. On the application of Nationwide, an order was made by this Court, pursuant to the provisions of s. 40(1) of the Judiciary Act 1903 Cth, that that part of the proceedings pending in the Federal Court which involved the interpretation of the Constitution be removed into this Court.

After the removal of the constitutional issue into the Court, the present case was stated by the Chief Justice for the consideration of a Full Court. The questions which it raises relate solely to the validity of s. 299(1)(d)(ii). The respondent maintains that s. 299(1)(d)(ii) was validly enacted pursuant to the legislative power with respect to "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State" which s. 51(xxxv) confers upon the Parliament. If necessary, the respondent also calls in aid the "incidental" power conferred by s. 51(xxxix). For Nationwide, it is submitted that the enactment of s. 299(1)(d)(ii) was beyond the grants of legislative power contained in s. 51(xxxv) and (xxxix) when those grants are read within the context of the Constitution as a whole, including a guarantee, said to be "implicit" in the Constitution, to the effect "that citizens shall be free, subject always to laws imposing reasonable regulation, to voice their criticisms of governmental institutions, in particular law-making bodies such as the Parliament and the Industrial Relations Commission". Alternatively, it is submitted that the provisions of s. 299(1)(d)(ii) are either invalid or rendered inapplicable to the relevant conduct of Nationwide by reason of the guarantee of the freedom of interstate intercourse contained in s. 92 of the Constitution.

The stated case spells out in some detail the processes and procedures by which the 14 November 1989 edition of The Australian was produced, distributed and sold to the public. Those processes and procedures included the assembling, editing, typesetting and printing, by Nationwide, of the basic edition of the newspaper in Sydney and the distribution of it, by agents of Nationwide, to newsagents in a distribution area based on Sydney and encompassing most of New South Wales and the whole of the Australian Capital Territory. That basic edition was also transmitted, by means of a special facsimile machine linked to a Telecom line, to the premises of a "printer/distributor" in each of five other cities (Melbourne, Adelaide, Perth, Brisbane and Townsville) for the printing and distribution of the newspaper in a distribution area based on the relevant city. Each of those printer/distributors was a company. One of them was independent of Nationwide. Two were subsidiaries of Nationwide. In the other two distribution areas, the distributor/printer company was Nationwide itself, through a particular operating division. The layout of the copies of the newspaper printed and published in different distribution areas "was identical although there were some minor variations in the content of some pages (e.g. television programme guides)".

The newspaper article had been written by Mr. Newton in the United States, sent by him by facsimile to Nationwide in Sydney and included in the basic edition produced in Sydney and transmitted by facsimile to the other distribution areas. It was included in identical form in all copies of the 14 November 1989 edition of The Australian. In total, 127,602 copies of that edition were sold by retail to the public by newsagents. In Victoria, the newsagents sold the newspaper as agents for Nationwide. In other parts of the Commonwealth, the newsagents sold the newspaper on their own behalf, having purchased it wholesale either directly from Nationwide or from an agent acting on Nationwide's behalf.

The boundaries of four of the six distribution areas extended beyond the borders of a single State. That based on Melbourne included, in addition to the State of Victoria, the State of Tasmania and the city of Albury in New South Wales. That based on Adelaide included, in addition to the State of South Australia, the Northern Territory and the city of Broken Hill in New South Wales. That based on Brisbane included, in addition to southern Queensland, the Northern Rivers region of New South Wales. As has already been mentioned, the distribution area based on Sydney included the Australian Capital Territory as well as most of New South Wales. A consequence of the overlapping of boundaries was that there was considerable movement of newspapers across State and Territory borders in the course of distribution to newsagents. In so far as interstate movement of the 14 November 1989 issue is concerned, more than 4,800 copies were transported from Victoria to Tasmania; more than 1,400 were transported from Victoria to New South Wales; more than 1,400 were transported from Queensland to northern New South Wales; and more than 100 were transported from South Australia to New South Wales.

In the result, the newspaper article was published by Nationwide, by one means or another, in all the Australian States and internal Territories. The respondent has, however, disavowed reliance upon any publication outside New South Wales. The stated case records that, on the hearing of the information, "the respondent intends to rely, in support of the charge, on the printing, publication, and (in so far as it may be material) distribution for sale, of the relevant edition of the newspaper in Sydney, New South Wales, and not upon its transmission to, printing, publication or distribution for sale in, other places".

Section 299(1) is contained in Pt XI of the Act which bears the heading "Offences". The sub-section reads:

(a) wilfully insult or disturb a member of the Commission in the exercise of powers, or the performance of functions, as a member;

(c) use insulting language towards a member of the Commission exercising powers, or performing functions as a member; or

(i) to influence improperly a member of the Commission or a witness before the Commission; or

(ii) to bring a member of the Commission or the Commission into disrepute.

(a) in the case of a natural person - $500 or imprisonment for 6 months, or both; and

It was submitted on behalf of the respondent, in defending the validity of s. 299(1)(d)(ii), that the prohibition, under criminal sanction, of the use, by writing or speech, of "words calculated to bring a member of the Commission or the Commission into disrepute" should be construed as modified by a number of unexpressed qualifications. The reference to a "member of the Commission" should, it was said, be read as referring to a member of the Commission acting in his or her capacity as such with the consequence that par. (d)(ii) of s. 299(1) does not extend to an attack upon a member of the Commission which is not made upon him or her in his or her official capacity and in relation to the exercise or performance of official powers or functions. More importantly, it was submitted that, in addition to the ordinary requirement that an alleged criminal act be willed and voluntary, there should be read into par. (d)(ii) a number of special defences derived, by analogy, from the law of contempt of court and the law of defamation, including defences of "justification", "fair comment" and "honest and reasonable mistake of fact".

As a matter of language, the phrase "a member of the Commission" in s. 299(1)(d)(i) and (ii) can be read as a reference to a person in his or her capacity as such a member. In the context of a criminal provision in an Act concerned with the establishment and functioning of the Commission as an instrument of government it should be so construed, with the result that the offence created by s. 299(1)(d)(i) is concerned with words calculated to influence improperly a member of the Commission in his or her capacity as such a member while that created by s. 299(1)(d)(ii) is concerned with words calculated to bring a member of the Commission into disrepute as such a member. Thus, to use words calculated to influence improperly or bring into disrepute a person in, for example, his or her capacity as an umpire of a social tennis club or as an amateur thespian would not constitute an offence under s. 299(1)(d) merely because the person concerned happened to be a member of the Commission. An offence under s. 299(1)(d) will not be committed if the use of words is not, in the circumstances in which they are used, calculated to influence the person or bring him or her into disrepute in his or her official capacity.

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.

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.

1. Gallagher v. Durack (1983), 152 C.L.R. 238, at p. 245. 2. R. v. Fletcher; Ex parte Kisch (1935), 52 C.L.R. 248, at p. 257. 3. See R. v. Nicholls (1911), 12 C.L.R. 280, at pp. 285-286, per Griffith C.J., Barton and O'Connor JJ.; In the Matter of a Special Reference from the Bahama Islands, [1893] A.C. 138, at p. 149 (per the Privy Council). 4. See, e.g., Blackstone, Commentaries, 17th ed. (1830), vol. 3, par. 125; Defamation Act 1974 N.S.W., ss. 50, 51, 15(1). 5. Commonly attributed to Lord Mansfield. 6. Bentham, Truth versus Ashhurst (1823), The Works of Jeremy Bentham (1843), vol. 5, p. 234. 7. See ss. 303(1), 305(b). 8. See ss. 315(2), (3), (4), 317(2), (3). 9. See s. 304. 10. See s. 307.

It follows that s. 299(1)(d)(ii) purports to forbid, under the sanction of fine and/or imprisonment, every written or oral use of words, however justified and true, calculated to bring into disrepute either the Commission or any member of the Commission in his or her capacity as such a member.

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".

1. See, e.g., Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association (1908), 6 C.L.R. 309, at pp. 333, 342-343; R. v. Commonwealth Court of Conciliation and Arbitration and Boot Trade Employees Federation; Ex parte Whybrow & Co. (1910), 11 C.L.R. 1, esp. at p. 49; O'Toole v. Charles David Pty. Ltd. (1991), 171 C.L.R. 232, at p. 290. 2. See, e.g., South Australia v. Tanner (1989), 166 C.L.R. 161, at pp. 165, 178. 3. See Leeth v. The Commonwealth (1992), 174 C.L.R. 455, at pp. 484-485. 4. See, e.g., The Commonwealth v. Kreglinger & Fernau Ltd. and Bardsley (1926), 37 C.L.R. 393, at pp. 411-412. 5. West v. Commissioner of Taxation (N.S.W.) (" West's Case ") (1937), 56 C.L.R. 657, at p. 681, per Dixon J. 6. ibid., at p. 687, per Evatt J. 7. Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920), 28 C.L.R. 129. 8. See West's Case (1937), 56 C.L.R., at pp. 681-682, 687-688; and, generally, Australian National Airways Pty. Ltd. v. The Commonwealth (1945), 71 C.L.R. 29, at p. 85. 9. (1937) 56 C.L.R., at p. 681.

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.

1. See fn. (25) below. 2. See, generally, Queensland Electricity Commission v. The Commonwealth (1985), 159 C.L.R. 192, at pp. 205, 217, 226, 231, 247, 260-262. 3. See, generally, Harris v. Caladine (1991), 172 C.L.R. 84.

The Constitution's adoption of that doctrine of representative government was qualified in the areas of executive and judicial powers. In so far as the executive power of the Commonwealth is concerned, s. 61 of the Constitution vests it in "the Queen" and provides that it "is exercisable by the Governor-General as the Queen's representative". Section 2 provides that the Governor-General shall be appointed by "the Queen". Covering Clause [24] provides that references to "the Queen" extend to "Her Majesty's heirs and successors in the sovereignty of the United Kingdom". The combined effect of the nature of the British constitutional monarchy and of the development of the concept of the Crown as an Australian sovereign who acts, in relation to Commonwealth matters (including the appointment of a Governor-General), on the advice of Commonwealth Ministers who are dependent upon the support of the Commonwealth Parliament is, however, that the limitations of the adoption of representative government in relation to the repository of executive power are now mainly of formal significance. In so far as judicial power is concerned, the powers of the elected Parliament and of the Executive are restricted both as regards the dismissal of members of the Commonwealth judiciary and as regards the exercise of judicial power by Ch. III courts. Those restrictions are, however, necessary to protect the independence of the Judicature in its discharge of the functions assigned to it under the doctrine of separation of judicial from legislative and executive powers. Ultimately, they protect, rather than derogate from, the Constitution's adoption of representative government. In any event and putting to one side the status of Covering Cl. 2, any qualification or restriction of the Constitution's adoption of representative government is itself subject to the power of the people under s. 128 of the Constitution to amend its terms.

1. Commonwealth of Australia Constitution Act 1900 Imp., s. 2.

In implementing the doctrine of representative government, the Constitution reserves to the people of the Commonwealth the ultimate power of governmental control. It provides for the exercise of that ultimate power by two electoral processes. The first is the election of the members of the Parliament in which is vested the legislative power of the Commonwealth and which, under the Cabinet system of government which the Constitution assumes [25] , sustains and directly or indirectly controls the exercise of the executive power which the Constitution formally vests in the Crown. The second is that to which reference has already been made, namely, the amendment of the Constitution itself. Under the Constitution, those ultimate powers which the Constitution reserves to the people of the Commonwealth are exercisable by direct vote(ss. 7, 24, 128). While one can point to qualifications and exceptions, such as those concerned with the protection of the position of the less populous States [26] , the general effect of the Constitution is, at least since the adoption of full adult suffrage by all the States, that all citizens of the Commonwealth who are not under some special disability are entitled to share equally in the exercise of those ultimate powers of governmental control [27] .

1. See Constitution, s. 64; and, generally, Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920), 28 C.L.R., at p. 147, per Knox C.J., Isaacs, Rich and Starke JJ. The doctrine of responsible government embodied in the Cabinet or Westminster system can arguably be seen as a fourth main general doctrine underlying the Constitution as a whole. Alternatively, it can be seen as a system of government devised to permit observance of the doctrine of representative government in a constitutional monarchy in which executive powers are formally vested in a non-elected Sovereign. 2. See, in particular, ss. 7 (equal representation of the several Original States [in the Senate] shall be maintained) and 128 (a majority of the States as well as a majority of all the electors). 3. See, generally, Attorney-General (Cth) (Ex rel. McKinlay) v. The Commonwealth (1975), 135 C.L.R. 1, at p. 36.

The people of the Commonwealth would be unable responsibly to discharge and exercise the powers of governmental control which the Constitution reserves to them if each person was an island, unable to communicate with any other person. The actual discharge of the very function of voting in an election or referendum involves communication. An ability to vote intelligently can exist only if the identity of the candidates for election or the content of a proposed law submitted for the decision of the people at a referendum can be communicated to the voter. The ability to cast a fully informed vote in an election of members of the Parliament depends upon the ability to acquire information about the background, qualifications and policies of the candidates for election and about the countless number of other circumstances and considerations, both factual and theoretical, which are relevant to a consideration of what is in the interests of the nation as a whole or of particular localities, communities or individuals within it. Moreover, the doctrine of representative government which the Constitution incorporates is not concerned merely with electoral processes. As has been said, the central thesis of the doctrine is that the powers of government belong to, and are derived from, the governed, that is to say, the people of the Commonwealth. The repositories of governmental power under the Constitution hold them as representatives of the people under a relationship, between representatives and represented, which is a continuing one. The doctrine presupposes an ability of represented and representatives to communicate information, needs, views, explanations and advice. It also presupposes an ability of the people of the Commonwealth as a whole to communicate, among themselves, information and opinions about matters relevant to the exercise and discharge of governmental powers and functions on their behalf.

It follows from what has been said above that there is to be discerned in the doctrine of representative government which the Constitution incorporates an implication of freedom of communication of information and opinions about matters relating to the government of the Commonwealth. In so far as the people of the Commonwealth are concerned, that implication of freedom of communication operates at two levels. The first is the level of communication and discussion between the represented and their representatives, that is to say, the level of communication and discussion between the people of the Commonwealth on the one hand and the Parliament and its members and other Commonwealth instrumentalities and institutions on the other. Even before the first sitting of this Court, it had been recognized that there was inherent in the Constitution, as a necessary implication of its terms, a right of the people of the Commonwealth to communicate with "the Federal authorities" [28] . In R. v. Smithers; Ex parte Benson [29] , Griffith C.J. accepted that "the elementary notion" of the Commonwealth established by the Federation necessarily gave rise to rights of communication between the people and the institutions to which they had entrusted the exercise of governmental power. The Chief Justice quoted, and adopted as applicable to the Commonwealth under the Constitution, an extract from the seminal judgment of the United States Supreme Court (delivered by Miller J.) in Crandall v. Nevada [30] in which, having referred to the right of federal officers to free access to, and transit through, the States for federal purposes, the Supreme Court had said:

But if the government has these rights on her own account, the citizen also has correlative rights. He has the right to come to the seat of government to assert any claim he may have upon that government, or to transact any business he may have with it. To seek its protection, to share its offices, to engage in administering its functions. In Smithers , Barton J. also referred to that passage from the judgment in Crandall v. Nevada and expressed the view [31] that the reasoning of the United States Supreme Court "is as cogent in relation to the Constitution of this Commonwealth, as it was when applied to the Constitution of the United States ". In Pioneer Express Pty. Ltd. v. Hotchkiss [32] , Dixon C.J., while pointing out that that case did not "provide an occasion for examining the place which the very general principles expounded in Crandall v. Nevada possess with us", commented: No one would wish to deny that the constitutional place of the [Australian] Capital Territory in the federal system of government and the provision in the Constitution relating to it necessarily imply the most complete immunity from State interference with all that is involved in its existence as the centre of national government, and certainly that means an absence of State legislative power to forbid restrain or impede access to it. 1. See Quick and Garran, Annotated Constitution of the Australian Commonwealth (1901), p. 958. 2. (1912) 16 C.L.R. 99, at p. 108. 3. (1867) 73 U.S. 35, at p. 44. 4. (1912) 16 C.L.R., at p. 109. 5. (1958) 101 C.L.R. 536, at p. 550.

The second level at which the implication of freedom of communication and discussion operates is the level of communication between the people of the Commonwealth. Inherent in the Constitution's doctrine of representative government is an implication of the freedom of the people of the Commonwealth to communicate information, opinions and ideas about all aspects of the government of the Commonwealth, including the qualifications, conduct and performance of those entrusted (or who seek to be entrusted) with the exercise of any part of the legislative, executive or judicial powers of government which are ultimately derived from the people themselves. The basis of such an implication was identified by Duff C.J. and Davis J. in Re Alberta Legislation Statutes [33] when speaking of the British North America Act before the adoption of the Canadian Charter of Rights:

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.

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.

1. See, e.g., Constitution, ss. 10, 30 and 31. 2. See, e.g., ss. 12, 15 and 29.

Nor is it necessary for the purposes of the present case to consider whether the implication extends to confine or inhibit State, as well as Commonwealth, legislative powers. The implication is not, of course, that the people of the Commonwealth will have free access to all the means of communication any more than is s. 92's express guarantee of freedom of interstate trade, commerce and intercourse a guarantee of free transportation. It is an implication of freedom from legislative prohibition and burdensome interference. Its primary operation is to confine, as a matter of construction, the scope of the legislative powers conferred by s. 51 of the Constitution which, as has been said, are expressly made subject to the Constitution as a whole. The provisions of the State Constitutions were, however, preserved under the Federation "subject to" the Constitution of the Commonwealth [37] and it is strongly arguable that the Constitution's implication of freedom of communication about matters relating to the government of the Commonwealth operates also to confine the scope of State legislative powers. In that regard, it is relevant to note that the above-quoted comments of Griffith C.J. and Barton J. in Smithers [38] and Dixon C.J. in Pioneer Express Pty. Ltd. v. Hotchkiss [39] were all made in the context of a challenge to the validity of State legislation.

1. Constitution, s. 106. 2. (1912) 16 C.L.R., at pp. 108, 109. 3. (1958) 101 C.L.R., at p. 550.

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.

1. See, e.g., Miller v. TCN Channel Nine Pty. Ltd. (1986), 161 C.L.R. 556, at pp. 567, 591, 597-598, 629-630; Red Lion Broadcasting Co. v. F.C.C. (1969), 395 U.S. 367, at pp. 375-377.

The requirements of Ch. III of the Constitution dictate that the Commission not be entrusted with the exercise of any part of the judicial power of the Commonwealth. Nonetheless, there are several obvious similarities between the functions and qualifications of members of the Commission and the functions and qualifications of members of a court. The members of the Commission are under an obligation to act judicially in the discharge of their functions, that is to say, to observe the requirements of fairness and impartiality which the common law demands of any tribunal entrusted with the resolution of disputes between parties before it. As with a court, it is important that the Commission be constituted by members who are fit and qualified to perform the functions entrusted to them. Again, as with a court, it is important that the members of the Commission have the appearance, as well as the substance, of being fit and qualified and of acting fairly and impartially. If the members of the Commission were publicly perceived to be biased, unqualified, unfit or corrupt or customarily to act unfairly or improperly, the effectiveness of the national system of conciliation and arbitration established by the Act would be undermined and conceivably destroyed. Clearly enough, some legislative control of the kind of unfounded and illegitimate written or oral attack upon the Commission or its members which would be calculated to bring the Commission or its members into unwarranted disrepute can, in accordance with the traditional standards of our society, be justified as being in the public interest for the reason that it is necessary to enable the effective discharge of the important functions of conciliation and arbitration for the prevention and settlement of interstate industrial disputes. Such disputes can be disruptive of an ordered society and destructive of the legitimate claims of individuals to live peacefully and with dignity in such a society.

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] :

[I]mperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government. 1. See, e.g., The Commonwealth v. John Fairfax & Sons Ltd. (1980), 147 C.L.R. 39, at p. 52; Attorney-General v. Guardian Newspapers [No. 2], [1990] 1 A.C. 109, at p. 283; Hector v. Attorney-General (Antigua), [1990] 2 A.C. 312, at p. 318. 2. See, e.g., Australian Communist Party v The Commonwealth (1951), 83 C.L.R. 1, at p. 187, per Dixon J. 3. (1936) 299 U.S. 353, at p. 365.

Neither the words of pars (xxxv) and (xxxix) of s. 51 of the Constitution nor the nature of the legislative powers which they confer manifests an intention to override or derogate from the Constitution's implication of freedom of communication about matters relating to the government of the Commonwealth. That being so, the relevant scope of those legislative powers is confined by that implication. It follows from what has been said above that s. 299(1)(d)(ii)'s purported prohibition of every written or oral use of words calculated to bring the Commission or any of its members into disrepute trespasses beyond the scope of the legislative powers of the Commonwealth Parliament.

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.

1. See fns. (2), (3) and (4) (supra). 2. See, generally, Strickland v. Rocla Concrete Pipes Ltd. (1971), 124 C.L.R. 468. 3. See, e.g., Pidoto v. Victoria (1943), 68 C.L.R. 87, at pp. 110-111, per Latham C.J. 4. See Bank of N.S.W. v. The Commonwealth (1948), 76 C.L.R. 1, at p. 372, per Dixon J.

It follows that s. 299(1)(d)(ii) is wholly invalid.

Implicit in what has been written above is a conclusion that the express guarantee, by s. 92 of the Constitution, of freedom of intercourse among the States does not preclude the discernment, in the doctrine of representative government which the Constitution incorporates, of an implication of freedom of communication about matters relating to the government of the Commonwealth. The area of operation and the scope of such an implication are significantly different from those of s. 92's guarantee. For one thing, the implication is not confined by any distinction between interstate and intrastate communications. For another, it is restricted to communication about matters relating to the government of the Commonwealth. It is true that there are statements in some judgments in Miller v. TCN Channel Nine Pty. Ltd. [48] to the effect that the express provision of s. 92 precludes the implication of a general guarantee of freedom of communication. However, those statements, which were not essential to the decision of the case [49] , do not purport to address the particular question whether s. 92's guarantee of freedom of interstate intercourse precludes or inhibits the discernment, in the general doctrine of representative government which the Constitution incorporates, of an implication of freedom of communication to the extent necessary for the full and effective implementation and operation of that doctrine. As we have indicated, the answer which we would give to that particular question is in the negative.

1. (1986) 161 C.L.R., at p. 569, per Gibbs C.J.; at p. 579, per Mason J.; pp. 636-637, per Dawson J. (with whose comments Wilson J. agreed at p. 592). 2. See ibid., at p. 592, per Wilson J.; p. 615, per Brennan J.; pp. 625-626, per Deane J.

Notwithstanding the fact that the scope and area of operation of the implication of freedom of communication about matters relating to the government of the Commonwealth are different from those of s. 92's guarantee of the freedom of interstate intercourse, a purported legislative provision may both be inconsistent with that implication and infringe s. 92's guarantee. The conclusion that s. 299(1)(d)(ii) of the Act infringes the implication of freedom of communication and is consequently beyond the legislative powers conferred by s. 51(xxxv) and (xxxix) is, however, decisive of the present case. Accordingly, it is unnecessary to determine the question whether s. 299(1)(d)(ii) would, in any event, have been invalid by reason of conflict with s. 92. In particular, it is unnecessary to consider whether any interstate intercourse involved in the production and Australia-wide distribution of the newspaper containing Mr. Newton's article can, for the purposes of s. 92, be isolated from the activities involved in the production and distribution of the particular article in Sydney (upon which the respondent solely relies) or whether, if the prohibition of s. 299(1)(d)(ii) contravenes s. 92 in so far as it purportedly applies to activities of interstate intercourse, its residual validity could have been preserved by reading it as inapplicable to those activities. Nonetheless, in view of the thorough and careful arguments of counsel, it is appropriate to make some general observations about the scope and operation of s. 92's guarantee of the freedom of interstate intercourse.

The judgment of the Court in Cole v. Whitfield [50] is important not only for its identification of the true object and operation of s. 92 in its application to trade and commerce and its final rejection of an approach which had purported to convert a provision which had been adopted as a guarantee of national unity into a source of unfair and potentially divisive preference of interstate over intrastate trade and commerce. It is equally important for its express rejection [51] of mistaken views that the reference to intercourse in s. 92 had been added "as some kind of afterthought" or appendage to "trade" and "commerce" and that the content of the guarantee of freedom of interstate intercourse "must be governed by the pre-existing content of a guarantee of freedom of interstate trade and commerce". As the Court pointed out [52] :

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.

It was submitted in the course of argument in the present case that, once it was recognized that the guarantee of interstate intercourse was not confined by the construction given to the guarantee of freedom of interstate trade and commerce, it is necessary to construe it as inapplicable to any intercourse in the course of trade or commerce. Otherwise, it was said, the Court's insistence, in Cole v. Whitfield, that s. 92 was not intended to operate and did not operate as a source of unfair and potentially divisive preference of interstate trade over intrastate trade would be unavailing. There is obvious force in that submission. Nonetheless, it goes too far. The true resolution of tension between s. 92's guarantee of freedom of interstate trade and commerce and the guarantee of freedom of interstate intercourse must ultimately be found, not in removing all intercourse which happens to take place in the course of trade or commerce from the reach of the guarantee of freedom of interstate intercourse but in the relevant characterization of the particular law. Thus, in the present case, the relevant characterization of s. 299(1)(d)(ii) is that of a law with respect to the use or publication of words, regardless of whether that use or publication be in trade or commerce. For the purposes of s. 92, s. 299(1)(d)(ii)'s prohibition is relevantly directed not to trade or commerce but to communication or intercourse. That being so, the fact that the words in the present case were used or published by Nationwide in the course of trade or commerce, that is to say, in the course of producing, distributing and selling a newspaper, would not affect the application or operation of s. 92's guarantee of freedom of interstate intercourse.

Is section 299(1)(d)(ii) of the Industrial Relations Act 1988 invalid? It should be answered: "yes." It is unnecessary to answer any of the other questions. Dawson J.

I agree with the Chief Justice that s. 299(1)(d)(ii) of the Industrial Relations Act 1988 Cth is, as a matter of construction, limited in its application to words calculated - in the sense of likely - to affect adversely the reputation of a member of the Industrial Relations Commission in his or her capacity as such a member or to affect adversely the reputation of the Commission itself. I also agree that there is no basis upon which special defences of the kind available under the law of contempt or defamation can be imported into s. 299(1)(d)(ii). And I agree that, in relation to the Commission and its members, s. 299(1)(d)(ii) goes beyond the protection conferred by the law upon the courts by making it an offence to criticize the Commission or any of its members, even if the criticism is based upon facts which are true and consists of comments which are fair.

But I wish to say something about the approach to be adopted in determining whether s. 299(1)(d)(ii) falls within the legislative power of the Commonwealth Parliament. The relevant power of the Parliament is the power to make laws with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State [56] . That power extends, of course, beyond the stated subject matter to matters which are incidental to that subject matter. That is so because any grant of power carries with it by implication that which is required to make the grant of power effective. There is, of course, the express power given to the Parliament by s. 51(xxxix) to make laws with respect to matters incidental to the execution of any power vested by the Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth. That express power is, however, in addition to the incidental power implied in the grant of each of the other heads of power enumerated in s. 51. Not only that, but s. 51(xxxix) extends beyond legislative power to executive and judicial power and, in speaking of matters incidental to the execution of those powers, s. 51(xxxix) seems to place an emphasis upon the manner of exercise of those powers rather than upon the subject matter with respect to which those powers are exercised. But the distinction has never been thought to be important and it is sufficient for present purposes if I confine myself to the implied incidental power upon the basis that, in this case, it produces the same result.

The power conferred upon the Commonwealth Parliament by s. 51 of the Constitution is a power to make laws with respect to, or upon, enumerated matters [57] and such other matters as are incidental to them. The words "with respect to" are wide but they nevertheless require a sufficient connexion between a law and a subject matter before that law can be said to be a law with respect to that subject matter [58] . It has been said that the connexion must be substantial [59] but I doubt whether the addition of the adjective is helpful. Nor do I think it helpful to suggest that the connexion must be reasonable. If all that is meant is that the connexion must be reasonably perceptible, then the expression adds little. But it may convey the impression that the law itself must be reasonable and it is no part of this Court's function, once a law can be seen to be upon a subject matter confided to the Parliament, to determine whether in its view the law is reasonable or not [60] . That is a matter for Parliament and not the Court. The power of the Parliament with respect to a subject matter specified in s. 51 is plenary and the power extends to such other matters as are incidental in the sense that the exercise of the main power would be unduly restricted without their inclusion [61] .

1. See Attorney-General (N.S.W.) v. Brewery Employees' Union of N.S.W. (1908), 6 C.L.R. 469, at p. 610, per Higgins J. 2. Alexandra Private Geriatric Hospital Pty. Ltd. v. The Commonwealth (1987), 162 C.L.R. 271, at p. 283. 3. See Herald & Weekly Times Ltd. v. The Commonwealth (1967), 115 C.L.R. 418, at p. 436, per Kitto J. 4. See, e.g., Australian Communist Party v. The Commonwealth (1951), 83 C.L.R. 1, at p. 153, per Latham C.J. 5. Alexandra Private Geriatric Hospital Pty. Ltd. v. The Commonwealth (1987), 162 C.L.R., at p. 281.

However, it is for the Court to determine the validity of a law passed pursuant to s. 51, that is to say, it is for the Court to determine whether a sufficient connexion exists between a law and the subject matter of an enumerated power for the law to be a law with respect to, or upon, that subject matter. This is a practical exercise, although obviously, as questions of degree are involved, it is an exercise in which complete precision is not always possible. As Latham C.J. observed in Bank of N.S.W. v. The Commonwealth [62] :

In determining the validity of a law it is in the first place obviously necessary to construe the law and to determine its operation and effect (that is, to decide what the Act actually does), and in the second place to determine the relation of that which the Act does to a subject matter in respect of which it is contended that the relevant Parliament has power to make laws. A power to make laws with respect to a subject matter is a power to make laws which in reality and substance are laws upon the subject matter. It is not enough that a law should refer to the subject matter or apply to the subject matter: for example, income tax laws apply to clergymen and to hotelkeepers as members of the public; but no-one would describe an income tax law as being, for that reason, a law with respect to clergymen or hotelkeepers. Building regulations apply to buildings erected for or by banks; but such regulations could not properly be described as laws with respect to banks or to banking. 1. (1948) 76 C.L.R. 1, at p. 186. See also State Chamber of Commerce and Industry v. The Commonwealth (the Second Fringe Benefits Tax Case) (1987), 163 C.L.R. 329, at p. 354.

In the present case, if s. 299(1)(d)(ii) is to be supported as a valid exercise of legislative power, it must be upon the basis that it is a law with respect to a matter which is incidental to the main head of power, namely, the power to make laws with respect to conciliation and arbitration for the prevention and settlement of industrial disputes. That is to say, it must be upon the basis that s. 299(1)(d)(ii) is a law with respect to a matter which is "necessary for the reasonable fulfilment of the legislative power" [63] over conciliation and arbitration for the prevention and settlement of industrial disputes. What is incidental to the subject matter of the main power may go beyond what is necessary for its effective exercise. As Dixon J. said in British Medical Association v. The Commonwealth [64] :

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.

And it is for this reason that, in an exercise of the kind which must be undertaken in this case, limited assistance is to be derived from the concept of reasonable proportionality. No doubt a law which is inappropriate or ill-adapted for the purpose of achieving a legitimate end may fail for want of a power. But it fails not because the Court considers the law to be inappropriate or ill adapted but because the very fact that the law is inappropriate or ill adapted prevents there being a sufficient connexion between the law and a relevant head of power. The question is essentially one of connexion, not appropriateness or proportionality, and where a sufficient connexion is established it is not for the Court to judge whether the law is inappropriate or disproportionate.

The difference is more than merely verbal and may, I think, be demonstrated by reference to Davis v. The Commonwealth [68] . In that case a prohibition upon the use of a particular expression said to have a connexion with the bicentenary celebrations was held to be invalid. The commemoration of the bicentenary was within the executive power of the Commonwealth but no sufficient connexion could be demonstrated between the prohibition upon the use of that expression and either the executive power of the Commonwealth or any legislative power conferred by the Constitution upon Parliament. Mason C.J., Deane and Gaudron JJ. said [1] :

Although the statutory regime may be related to a constitutionally legitimate end, the provisions in question reach too far. This extraordinary intrusion into freedom of expression is not reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power. But, with respect, the question was not whether the restriction of freedom of expression was reasonable or appropriate. The question was whether the prohibition was within power, that is, whether there was a sufficient connexion between it and the subject matter of a head of power. 1. (1988) 166 C.L.R. 79. 2. ibid., at p. 100.

It is true that in South Australia v. Tanner [2] the majority adopted the test of reasonable proportionality in determining the validity of a regulation. But that test was accepted by the parties [3] and, in any event, the power pursuant to which the Governor purported to make the regulation was a purposive power, namely, a power to make regulations for regulating, controlling or prohibiting the use of any land within a watershed or within a watershed zone so as "to reduce or prevent the deterioration or pollution of any water within a watershed or watershed zone". In the Tasmanian Dam Case [4] Deane J. also used the test of reasonable proportionality as a test of validity in relation to legislation passed pursuant to the external affairs power, but he viewed the external affairs power as a power comparable to a purposive power such as the defence power [5] . That is a view with which I expressed my respectful disagreement in Richardson v. Forestry Commission [6] .

1. (1989) 166 C.L.R. 161. 2. (1989) 166 C.L.R., at pp. 165, 167. 3. The Commonwealth v. Tasmania (the Tasmanian Dam Case) (1983), 158 C.L.R. 1. 4. ibid., at p. 260. 5. (1988) 164 C.L.R. 261, at pp. 325-326.

Reasonable proportionality may provide a test of validity where a purposive power is concerned. Then the question is what the legislation operates for, not what it operates upon. That is to say, purpose rather than connexion with any particular subject matter must then be the test. When a power is not purposive (and most of the powers in s. 51 are not) the ultimate question is not whether the law is reasonably adapted to the achievement of a purpose, but whether it has a sufficient operation upon - a sufficient connexion with - something forming part of the subject matter of the power [7] . For that reason, the concept of reasonable proportionality is of limited assistance where purposive powers are not involved and the danger in employing it is that it invites the Court to act upon its view of the desirability of the impugned legislation rather than upon the connexion of the legislation with the subject matter of the legislative power.

1. See Murphyores Incorporated Pty. Ltd. v. The Commonwealth (1976), 136 C.L.R. 1, at pp. 11-12.

That is why in Herald & Weekly Times Ltd. v. The Commonwealth Kitto J., having found that the provisions in question were, although at the outer extremity, a means of effecting a desired end which was within power, namely, that of ensuring freedom of competition between television services, said [8] :

How far they should go was a question of degree for the Parliament to decide, and the fact that the Parliament has chosen to go to great lengths - even the fact, if it be so, that for many persons difficulties are created which are out of all proportion to the advantage gained - affords no ground of constitutional attack. That is to say, provided the necessary connexion is established, proportionality is a question for Parliament, not the Court. 1. (1966) 115 C.L.R., at p. 437.

It is beyond question that the creation of a tribunal, such as the Industrial Relations Commission, to carry out the functions of conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State is within the power of the Commonwealth Parliament [9] . And the powers and immunities which the Parliament may confer upon such a body for the attainment of these ends is unfettered, provided that, as Griffith C.J. said in Jumbunna [10] , "they are really incidental to the attainment of these ends, and not manifestly unconnected with them". He added: "There must be some nexus between the means and the end." It was upon this basis that it was conceded in argument that it was incidental to the establishment of the Commission that it be protected from conduct that would impair the performance of its functions. It is important, I think, to bear in mind that those functions are limited to conciliation and arbitration for the prevention and settlement of industrial disputes.

1. See Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association (1908), 6 C.L.R. 309, at p. 333, per Griffith C.J.; O'Toole v. Charles David Pty. Ltd. [No. 2] (1991), 171 C.L.R. 232, at pp. 289-290, per Deane, Gaudron and McHugh JJ. 2. (1908) 6 C.L.R., at p. 333.

The common law has taken a restricted view of the type of conduct which would have a tendency to disparage the authority of the courts and to weaken confidence in them. As Rich J. stated in R. v. Dunbabin; Ex parte Williams [11] :

The jurisdiction [to punish for contempt] is not given for the purpose of protecting the judges personally from imputations to which they may be exposed as individuals. 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. In R. v. Nicholls, Griffith C.J., speaking for the Court, thought that even an imputation of want of impartiality to a judge would not necessarily constitute a contempt of court. His Honour said [12] : On the contrary, I think that, if any judge of this Court or of any other Court were to make a public utterance of such character as to be likely to impair the confidence of the public, or of suitors or any class of suitors in the impartiality of the Court in any matter likely to be brought before it, any public comment on such an utterance, if it were a fair comment, would, so far from being a contempt of Court, be for the public benefit, and would be entitled to similar protection to that which comment upon matters of public interest is entitled under the law of libel. 1. (1935) 53 C.L.R. 434, at p. 442. See also R. v. Nicholls (1911), 12 C.L.R. 280; R. v. Fletcher; Ex parte Kisch (1935), 52 C.L.R. 248. 2. (1911) 12 C.L.R., at p. 286.

It is instructive to compare the limited extent to which the law has found it necessary to go in protecting the administration of justice from interference and the broad scope of s. 299(1)(d)(ii), which purports to insulate the Commission from even justifiable criticism. And in making the comparison it is to be borne in mind that the Commission exercises functions that are partly quasi-legislative as well as partly quasi-judicial. Its functions include not only the conciliation and arbitration of individual disputes but also the formulation of broad policy. Thus in the prevention and settlement of industrial disputes it is required to have regard to the interests (including the economic interests) of the Australian community as a whole [13] . It is in that context that it is necessary to ask whether it is possible to discern a connexion between conciliation and arbitration for the prevention and settlement of industrial disputes and the prohibition of any adverse criticism, however well founded, of the body chosen as the vehicle to perform those functions.

No doubt the encouragement of public confidence in the Commission and the maintenance of its authority are of importance in enabling it to carry out its role effectively. Although I doubt it, even soundly-based criticism may, in limited circumstances, affect the Commission in the proper performance of its functions. But to my mind it is not possible to conclude that any criticism of an adverse nature in any circumstances may do so. For that reason s. 299(1)(d)(ii) lacks a sufficient connexion with conciliation and arbitration for the prevention and settlement of industrial disputes. In other words, it goes beyond what is incidental to the main head of power. As I have indicated, this conclusion may be expressed by saying that the provision is in disproportion to the achievement of a legitimate end, but to put the matter that way is useful only if it is recognized that the disproportion is such that there is no sufficient connexion between the provision and the legislative power relied upon to support it.

Section 299(1)(d)(ii) cannot, in accordance with any discernible legislative intent, be given a distributive operation which would enable that which is invalid to be severed from it. The Court will not in that situation act as a legislator and devise a standard or test of its own [14] . Accordingly, the provision is wholly invalid.

1. See Strickland v. Rocla Concrete Pipes Ltd. (1971), 124 C.L.R. 468, at p. 493, per Barwick C.J.

I would answer the questions in the stated case as follows:

This is a case stated by the Chief Justice pursuant to s. 18 of the Judiciary Act 1903 Cth concerning the validity of s. 299(1)(d)(ii) of the Industrial Relations Act 1988 Cth ("the Act"). The terms of that sub-paragraph, the facts and the questions asked in the case stated are set out in other judgments. They need not be repeated.

I agree with Mason C.J. and with McHugh J., for the reasons that each gives, that s. 299(1)(d)(ii) of the Act purports to forbid the use of words, in writing or speech, calculated to bring the Industrial Relations Commission ("the Commission") or a member of it, in his or her capacity as a member, into disrepute, no matter that what is said is true, that it is fair comment or that it is fair criticism of the Commission or its proceedings. I do not use the terms "fair comment" and "fair criticism" in any technical sense, but merely to indicate the width of the prohibition involved.

The first issue to be decided is whether, constitutional prohibition apart, s. 299(1)(d)(ii) is a law with respect to "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State" as authorized by s. 51(xxxv) of the Constitution. And, of course, that authorization extends to "everything incidental to the main purpose of [that] power" [15] .

1. Le Mesurier v. Connor (1929), 42 C.L.R. 481, at p. 497.

It is not necessary, in my view, to consider whether s. 299(1)(d)(ii) is a law under s. 51(xxxix) which, so far as presently relevant, authorizes laws with respect to "[m]atters incidental to the execution of [a] power vested by [the] Constitution in the Parliament". There is, of course, a difference between matters incidental to the subject matter of a power (which are included in the grant of power) and matters incidental to the execution of a power [16] , but that is not a difference that has any practical consequence in this case. In a context where the power conferred by s. 51(xxxv) has been exercised to establish the Commission to conciliate and arbitrate interstate industrial disputes, if s. 299(1)(d)(ii) is not incidental to conciliation and arbitration it cannot be regarded as incidental to the execution of Parliament's power to legislate on that topic.

1. The distinction that is traditionally made between matters incidental to the subject matter of a power and the express incidental power conferred by s. 51(xxxix) is "between a matter incidental to a subject to which the power is addressed and a matter which is incidental to the execution of a power, that is, something which attends or arises in its exercise": Gazzo v. Comptroller of Stamps (Vict.) (1981), 149 C.L.R. 227, at p. 236, per Gibbs C.J. See also Le Mesurier v. Connor (1929), 42 C.L.R. 481, at p. 497, per Knox C.J., Rich and Dixon JJ.

The relationship that is involved when one matter is incidental to another is not one that is always susceptible of precise exposition. However, it is one that, very often, is revealed by a consideration of purpose. Thus it was said by Dixon J. in the Bank Nationalization Case [17] that:

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. 1. Bank of N.S.W. v. The Commonwealth (1948), 76 C.L.R. 1, at p. 354. See also Victoria v. The Commonwealth ("the Second Uniform Tax Case ") (1957), 99 C.L.R. 575, at p. 614, per Dixon C.J.

The purpose of a legislative provision is not always discernible from its terms. Where purpose is in issue, either because a law is valid only if it effectuates some purpose [18] or because its purpose will indicate whether it has a relevant connexion with a particular subject matter, it is often convenient to ask a question or questions which, if answered in the affirmative, will indicate that it has the particular purpose in issue. For example, it may be asked whether the provision has been "found necessary" [19] , whether it involves something that may reasonably and properly be done to effectuate the specified purpose, whether "the means adopted are appropriate" [20] or whether it is "reasonably considered to be appropriate and adapted" to achieving [21] that purpose. The last question has a dual function in that, if the provision is not reasonably capable of being viewed as appropriate and adapted, it can be taken that it does not have the particular purpose in issue, but some other and different purpose [22] . And, of course, a law is not appropriate and adapted to a purpose if there is not "reasonable proportionality between the purpose and the means which the law embodies for achieving or procuring it". [23] These considerations may be taken into account whenever purpose is in issue, whether as a matter directly determining validity (where that depends on purpose) [24] or as a matter determining whether the law is one with respect to a particular subject matter.

1. See, e.g., the defence power (s. 51(vi)): Stenhouse v. Coleman (1944), 69 C.L.R. 457, at p. 471, per Dixon J., and the external affairs power (s. 51(xxix)): R. v. Burgess; Ex parte Henry (1936), 55 C.L.R. 608, at pp. 674-675, per Dixon J. 2. Grannall v. Marrickville Margarine Pty. Ltd. (1955), 93 C.L.R. 55, at p. 77, per Dixon C.J., McTiernan, Webb and Kitto JJ. 3. Reg. v. Sweeney; Ex parte Northwest Exports Pty. Ltd. (1981), 147 C.L.R. 259, at p. 275, per Mason J. 4. The Commonwealth v. Tasmania (the Tasmanian Dam Case) (1983), 158 C.L.R. 1, at p. 278, per Deane J. See also Richardson v. Forestry Commission (1988), 164 C.L.R. 261, at p. 238, per Mason C.J. and Brennan J.; p. 303, per Wilson J.; pp. 311-312, per Deane J.; p. 324, per Dawson J.; p. 346, per Gaudron J. 5. South Australia v. Tanner (1989), 166 C.L.R. 161, at pp. 165, 178. 6. The Tasmanian Dam Case (1983), 158 C.L.R., at p. 260, per Deane J. 7. See, in relation to discriminatory laws for the purpose of ss. 92 and 117 of the Constitution respectively, Castlemaine Tooheys Ltd. v. South Australia (1990), 169 C.L.R., 436 and Street v. Queensland Bar Association (1989), 168 C.L.R. 461.

The purpose of s. 299(1)(d)(ii) of the Act is one that is apparent without resort to questions of the kind to which I have referred. Its purpose is revealed by its terms and its context: it is to protect the standing and authority of the tribunal established to conciliate and arbitrate interstate industrial disputes and its proceedings. That purpose is one that connects the provision with the main purpose of the power conferred by s. 51(xxxv) of the Constitution, namely, conciliation and arbitration for the prevention and settlement of interstate industrial disputes, in a way that enables it to be said that it is incidental to that power.

The second question that arises is whether s. 299(1)(d)(ii) infringes a constitutional prohibition with respect to the communication of information and ideas, being either a prohibition implicit in the Constitution or that contained in s. 92. A related but somewhat broader issue is involved in Australian Capital Television Pty. Ltd. v. The Commonwealth [No. 2], a case in which reasons for judgment are to be delivered immediately following the reasons in this case. In that case I state my reasons for concluding that the powers conferred by s. 51 of the Constitution, because they are conferred "subject to [the] Constitution", do not authorize laws which are inconsistent with a Commonwealth which is a free society governed in accordance with the principles of representative parliamentary democracy and, thus, do not authorize laws which impair or curtail freedom of political discourse, albeit that that freedom is not absolute. Because that freedom is not absolute and for the reasons which I state in Australian Capital Television Pty. Ltd. v. The Commonwealth [No. 2], freedom to discuss matters pertaining to government institutions and agencies may be curtailed by a law under s. 51, but only if its purpose is not to impair freedom, but to secure some end within power in a manner which, having regard to the general law as it has developed in relation to the written and spoken word, is reasonably and appropriately adapted to that end.

The protection of the standing and authority of the Commission and its proceedings is an end authorized by s. 51(xxxv) and, accordingly, the question which falls for determination in this case is whether, having regard to the general law pertaining to the spoken and written word, s. 299(1)(d)(ii) of the Act is reasonably and appropriately adapted to that end. As it happens, that question is, for all practical purpose, the same question asked by McHugh J. to determine whether s. 299(1)(d)(ii) is a law with respect to a matter incidental to the subject matter of s. 51(xxxv). And, the question posed by Mason C.J. with respect to proportionality (also in relation to s. 51(xxxv)) is to the same effect.

Although I would ask the question for a different purpose, I agree with Mason C.J. and with McHugh J., for the reasons that each gives, that the question whether s. 299(1)(d)(ii) is appropriate and adapted to the protection of the Commission or its proceedings must be answered against the Commonwealth. And I agree with their Honours, again for the reasons that each gives, that s. 299(1)(d)(ii) cannot be severed or read down so as to have a valid operation in that area in which the Parliament has power to proscribe conduct calculated to bring the Commission or its members into disrepute.

The questions in the case stated by the Chief Justice should be answered as follows:

It follows that the question in the stated case removed into this Court from the Federal Court pursuant to s. 40 of the Judiciary Act should be answered "No". McHugh J.

In the Federal Court of Australia, Nationwide News Pty. Ltd. ("Nationwide News"), the publisher of The Australian newspaper, is defending a charge that it published words calculated to bring the Industrial Relations Commission into disrepute. Part of the proceedings have been removed into this Court to determine the constitutional validity of s. 299(1)(d)(ii) of the Industrial Relations Act 1988 Cth, which is the source of the charge against Nationwide News. After the cause was removed, the Chief Justice stated a case for the determination of the Court pursuant to the provisions of s. 18 of the Judiciary Act 1903 Cth. The questions for determination are:

1. In all the circumstances, but not including the prosecutor's intention to rely upon the printing, publication and distribution for sale of the relevant article in Sydney:

(a) Is s. 299(1)(d)(ii) of the Industrial Relations Act invalid?

(b) Does s. 92 of the Constitution prevent the application of s. 299(1)(d)(ii) of the Industrial Relations Act to the printing, publication and distribution for sale of the relevant article?

(c) Does any guarantee implied by the Constitution prevent the application of s. 299(1)(d)(ii) of the Industrial Relations Act to the printing, publication and distribution for sale of the relevant article?

(a) Is s. 299(1)(d)(ii) of the Industrial Relations Act valid in its application to the printing, publishing and distribution for sale of the relevant article at Sydney?

(b) Does s. 92 of the Constitution prevent the application of s. 299(1)(d)(ii) of the Industrial Relations Act to the printing and publication of the relevant article at Sydney?

(c) Does any guarantee implied by the Constitution prevent the application of s. 299(1)(d)(ii) of the Industrial Relations Act to the printing and publication of the relevant article at Sydney?

The material parts of the article which is the subject of the charge are as follows:

May I briefly outline some of the aspects of fascism in Australia?

The right to work has been taken away from ordinary Australian workers. Their work is regulated by a mass of official controls, imposed by a vast bureaucracy in the ministry of labour and enforced by a corrupt and compliant " judiciary " in the official Soviet-style Arbitration Commission.

Local trade union soviets, with the benefit of monopoly powers conferred on them by the State and enforced by the corrupt labour " judges " in many industries regulate the employment of each individual, who may not work unless he first obtains the union card from the local union soviet. Through the resulting complex and corrupt system of wages and work regulation, ordinary Australian workers have in recent years been subject to a persistent and now accelerating process of declining real wages.

The Reserve Bank Bulletin for October 1989 reveals that between 1984-85 and the June quarter of 1989 award wages for adults in Australia rose 23 per cent. Over the same period, average earnings rose 33 per cent, as the workers attempted to flesh out their award wages by overtime and other privately negotiated "deals" beyond the control of the labour ministry soviet and the corrupt labour " judges ".

So, in Australia, as in Eastern Europe or in the Soviet Union itself, the ministry of labour controls on workers' right to work, enforced by pliant " judges ", have produced declining real wages. (Emphasis added.)

The edition of The Australian bearing the relevant article was distributed to all States of Australia, the Australian Capital Territory and the Northern Territory. A total of 160,725 newspapers were distributed, 127,602 of them being sold on 14 November 1989. On that date several thousand copies were physically transported across State and Territory borders.

In support of the charge against Nationwide News, the prosecutor intends to rely on the printing, publication and distribution for sale of the relevant edition of The Australian in Sydney and not upon its transmission to, printing, publication, or distribution for sale in other places.

(ii) to bring a member of the Commission or the Commission into disrepute.

The effect of s. 299(1)(d)(ii) is to make it an offence to publish material which is "calculated to lessen or discredit the authority or prestige of the [Commission or any of its members] in the minds of reasonable people" [25] . A publication will lessen or discredit their authority if it makes imputations about the conduct, character or work of the Commission or its members and those imputations, "if true, would forfeit the respect of the community" [26] .

1. Bell v. Stewart (1920), 28 C.L.R. 419, at p. 425. 2. ibid., at p. 426.

The informant contended that s. 299(1)(d)(ii) had to be read against the background of the principles of criminal responsibility and the general common law defences which apply to Commonwealth prosecutions by reason of ss. 79 and 80 of the Judiciary Act. Consequently, the informant contended that "defences" such as duress, honest and reasonable mistake and necessity could be raised as defences to a prosecution brought under s. 299(1)(d)(ii). So much may be accepted. But the informant, supported by the Attorney-General for the Commonwealth, contended that the paragraph also impliedly recognized such defences as justification and fair comment. This contention cannot be accepted. The offence is proved if the publication brings the Commission or one of its members into disrepute. A publication may bring the Commission or one of its members into disrepute even though the publication consists of imputations or statements which are true or which constitute fair comment. Indeed, the greater the truth, the greater may be the disrepute. Since s. 299(1)(d)(ii) contains no reference to any "defence" of fair comment or justification, the only conclusion that can be drawn is that neither of those "defences" is an answer to a charge laid under that paragraph.

It follows that I am unable to accept the statement made by Gray J. in Howard v. Gallagher [27] in respect of the predecessor of s. 299(1)(d)(ii) that it could "hardly be suggested that the making of allegations of impropriety against the Commission or one of its members could constitute an offence if those allegations were true". For the same reasons, I am unable to agree with his Honour that it was a reasonable assumption that Parliament, in enacting the predecessor of s. 299(1)(d)(ii), "did not intend that the Commission and its members should have greater protection from criticism than would a court and its judges" [28] . While many statements about the Commission or its members which fall within s. 299(1)(d)(ii) would constitute contempt of court if made about a court or judge, it does not follow that what is calculated to bring the Commission or one of its members into disrepute is limited to what would be a contempt of court at common law or what would constitute the offence of scandalizing the court. Neither the words of s. 299(1)(d)(ii) nor its context gives any ground for concluding that the very general words of the paragraph should be read down by reference to the common law concepts of contempt of court or scandalizing a court.

1. (1988) 18 F.C.R. 233, at p. 253. 2. ibid., at p. 252.

Counsel for the informant was on firmer ground in contending that s. 299(1)(d)(ii) only applied to publications which brought a member of the Commission into disrepute in his or her capacity as a member of the Commission. Although the words of the paragraph are not expressly limited to publications concerning the conduct of a member of the Commission in that person's capacity as a member of the Commission, the paragraph must be read in that sense. In the context of a statute dealing with industrial disputes, a provision, such as s. 299(1)(d)(ii), is more naturally read as concerned with publications about the members of the Commission as members of the Commission than with the general conduct of persons who are members of the Commission.

However, I am unable to accept the further contention of the informant that the words should also be confined to publications concerned with the exercise or performance of official powers and functions. In some cases, a publication which reflects on some aspect of a member's general conduct will also bring him or her into disrepute as a member of the Commission. In marked contrast to the other paragraphs in s. 299, par. (1)(d)(ii) contains no reference to "the exercise or the performance" of, or "exercising or performing", powers or functions as a member of the Commission. That being so, the omission of similar qualifying phrases in s. 299(1)(d)(ii) should be seen as a deliberate decision on the part of the Parliament to protect the members of the Commission against any attack which is calculated to bring any of them into disrepute in his or her capacity as a member of the Commission.

The effect of s. 299(1)(d)(ii), therefore, is to make it an offence to publish matter which brings into disrepute the Commission or any of its members in his or her capacity as a member of the Commission, irrespective of whether the publication is true or false or whether the offending material constitutes a fair comment on facts truly stated.

Is s. 299(1)(d)(ii) authorized by s. 51(xxxv) of the Constitution?

The Industrial Relations Commission was created pursuant to the power conferred on the Parliament by s. 51(xxxv) of the Constitution [29] . That paragraph provides:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: -

(xxxv) Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.

Section 51(xxxv) is a plenary power [30] . Whenever any question arises as to whether a power conferred by s. 51 of the Constitution should be given a wide or narrow meaning, the settled doctrine of this Court is that it should be given the wider meaning unless something in the rest of the Constitution indicates, expressly or by implication, that the narrow meaning best carries out the overall purposes of the Constitution [31] . 1. Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association (1908), 6 C.L.R. 309, at pp. 333, 342-343; O'Toole v. Charles David Pty. Ltd. [No. 2] (1991), 171 C.L.R. 232, at pp. 289-290. 2. Reg. v. Burah (1878), 3 App. Cas. 889, at pp. 904-905; Hodge v. The Queen (1883), 9 App. Cas. 117, at p. 132; R. v. Barger (1908), 6 C.L.R. 41, at pp. 66, 84-85; Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920), 28 C.L.R. 129, at pp. 153-154, 162; Nelungaloo Pty. Ltd. v. The Commonwealth (1947), 75 C.L.R. 495, at pp. 503-504. 3. Jumbunna (1908), 6 C.L.R., at pp. 367-368; Australian Boot Trade Employees' Federation v. Whybrow & Co. (1910), 11 C.L.R. 311, at p. 338; Engineers' Case (1920), 28 C.L.R. 129; Bank of N.S.W. v. The Commonwealth (1948), 76 C.L.R. 1, at pp. 332-334; Worthing v. Rowell & Muston Pty. Ltd. (1970), 123 C.L.R. 89, at p. 96; Koowarta v. Bjelke-Petersen (1982), 153 C.L.R. 168, at pp. 227-228; Reg. v. Coldham; Ex parte Australian Social Welfare Union (1983), 153 C.L.R. 297, at p. 314; The Commonwealth v. Tasmania (the Tasmanian Dam Case) (1983), 158 C.L.R. 1, at pp. 127-128, 220-221, 302.

A law purporting to be passed under one of the paragraphs of s. 51 is valid if it is a law "with respect to" one of the subjects enumerated in those paragraphs. Whether or not it is such a law is to be determined "by reference to the nature of the rights, duties, powers and privileges which it changes, regulates or abolishes" [1] . Furthermore, whatever is incidental or ancillary to the subject matter of a power conferred by s. 51 is a law with respect to that power if it is "necessary for the reasonable fulfilment of the legislative power" [2] because every grant of power conferred by s. 51 extends to the making of laws in relation to matters necessary to achieve the main purpose or purposes of that power [3] .

1. Fairfax v. Federal Commissioner of Taxation (1965), 114 C.L.R. 1, at p. 7; Actors and Announcers Equity Association of Australia v. Fontana Films Pty. Ltd. (1982), 150 C.L.R. 169, at pp. 201-202. 2. Burton v. Honan (1952), 86 C.L.R. 169, at p. 177. 3. Huddart Parker Ltd. v. The Commonwealth (1931), 44 C.L.R. 492, at pp. 515-516; Burton (1952), 86 C.L.R., at p. 177; Wragg v. New South Wales (1953), 88 C.L.R. 353, at p. 386; Grannall v. Marrickville Margarine Pty. Ltd. (1955), 93 C.L.R. 55, at p. 77; Reg. v. Wright; Ex parte Waterside Workers' Federation of Australia (1955), 93 C.L.R. 528, at p. 544.

In accordance with these principles, this Court has declared that the power conferred by s. 51(xxxv) to legislate with respect to conciliation and arbitration necessarily extends to the creation of tribunals to conciliate and arbitrate disputes falling within the terms of that paragraph because the creation of such tribunals is reasonably necessary to carry out the grant of power [4] . Furthermore, the application of those principles establishes that the incidental power conferred by s. 51(xxxv) extends to the making of laws for the protection of such tribunals because the power to create necessarily implies the power to preserve [5] .

1. Jumbunna (1908), 6 C.L.R., at pp. 333, 342-343; O'Toole (1991), 171 C.L.R., at p. 289. 2. See Australian Coastal Shipping Commission v. O'Reilly (1962), 107 C.L.R. 46, at p. 59.

Whether a matter is incidental to effectuating the purpose of a grant of a power is frequently a matter of degree [6] . But once a reasonable connexion between an ancillary or incidental subject matter and the subject of a s. 51 power becomes evident, the validity of a law regulating, prohibiting or promoting that ancillary or incidental subject matter is not open to challenge [7] . Throughout this Court's history, it has acted on the basis "that once the subject matter is fairly within the province of the Federal legislature the justice and wisdom of the provisions which it makes in the exercise of its powers over the subject matter are matters entirely for the Legislature and not for the Judiciary" [6] . However, a law, purporting to be passed under the incidental power for the protection of a body created by Parliament, is not fairly within the province of an express grant of power if the law "provides for a regime of protection which is grossly disproportionate to the need to protect" that body [8] . A law will be grossly disproportionate to achieving the objects of a power conferred by the Constitution if, for example, the law constitutes an "extraordinary intrusion" into freedom of speech that "is not reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power" [9] .

1. Burton v. Honan (1952), 86 C.L.R., at p. 179. 2. ibid., at p. 179; Gazzo v. Comptroller of Stamps (Vict.) (1981), 149 C.L.R. 227, at pp. 244, 269. 3. Burton v. Honan (1952), 86 C.L.R., at p. 179. 4. Davis v. The Commonwealth (1988), 166 C.L.R. 79, at p. 100. See the Tasmanian Dam Case (1983), 158 C.L.R., at pp. 172, 232, 259-261, 278; Richardson v. Forestry Commission (1988), 164 C.L.R. 261, at pp. 289, 295-296, 300, 311-312, 336, 345-346; Re Nolan; Ex parte Young (1991), 172 C.L.R. 460, at pp. 476-477, 484. 5. Davis v. The Commonwealth (1988), 166 C.L.R., at p. 100.

Accordingly, the decisive question in this case is whether par. 299(1)(d)(ii), construed as I have construed it, goes beyond what is reasonably and appropriately adapted to the protection of the Commission, its members and their functions.

That the Commission is in need of protection from scurrilous abuse and unwarranted attacks on its integrity, fairness and competence is not open to doubt. The Industrial Relations Commission is, and has been for many years, a central figure in the business of government in this country. It is a quasi-legislative, as well as a quasi-judicial, body which settles industrial disputes by promulgating rules which bind the disputants. Its rulings in National Wage Cases directly or indirectly affect the greater part of the Australian workforce; the effect of its decisions in those and other cases affect the whole of the Australian economy. It is not in the public interest, therefore, to permit public confidence in the Commission and its members to be undermined by unwarranted attacks on its integrity, fairness or competence. The efficacy of the actions and decisions of the Commission is largely dependent on the degree of acceptance which its decisions receive from the parties and the general community. Moreover, as counsel for the informant pointed out, the Commission is often involved in resolving or attempting to resolve heated disputes, and, as a practical matter, cannot rely entirely upon sanctions to enforce its determinations.

However, s. 299(1)(d)(ii) goes well beyond protecting the Commission and its members against unwarranted attacks. That paragraph protects the Commission from justifiable as well as unjustifiable criticism. It gives the Commission a protection from criticism greater than that enjoyed by the established courts of law. Since the decision of the Privy Council in Ambard v. Attorney-General (Trinidad and Tobago) [10] , it has not been open to doubt that at common law no wrong is committed by persons who in good faith criticize courts or judges or the administration of justice "provided that [they] abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice" [11] . Indeed, the Australian authorities go further. In R. v. Nicholls [12] , Griffith C.J. said that he was "not prepared to accede to the proposition that an imputation of want of impartiality to a judge is necessarily a contempt of Court". His Honour thought that, if the conduct of a judge exposed him or her to such a charge, criticism of that conduct "would be entitled to similar protection to that which comment upon matters of public interest is entitled under the law of libel". His Honour's remarks have been followed in other Australian cases [13] . Further, while there are decisions [14] to the effect that truth or falsity is irrelevant to a charge of scandalizing the court, this Court has said that the summary remedy of fine or imprisonment is applied only "where the attacks are unwarrantable" [15] .

1. [1936] A.C. 322. 2. ibid., at p. 335. 3. (1911) 12 C.L.R. 280, at p. 286. 4. R. v. Fletcher; Ex parte Kisch (1935), 52 C.L.R. 248, at pp. 257-258; Attorney-General (N.S.W.) v. Mundey, [1972] 2 N.S.W.L.R. 887, at p. 910. 5. E.g, Attorney-General (N.Z.) v. Blomfield (1913), 33 N.Z.L.R. 545; Viner v. Australian Building Construction Employees' & Builders Labourers' Federation (1982), 2 I.R. 177, at p. 183. 6. Gallagher v. Durack (1983), 152 C.L.R. 238, at p. 243, citing Evatt J. in Fletcher (1935), 52 C.L.R., at p. 257.

In my opinion, s. 299(1)(d)(ii) cannot be supported as a law which is reasonably incidental to the system of conciliation and arbitration set up pursuant to the power granted by s. 51(xxxv) of the Constitution. Section 299(1)(d)(ii) goes beyond that which can reasonably be regarded as necessary to enable the Commission to perform its duties. First, the paragraph constitutes a far reaching interference with the common law right of members of the public to make fair comments on matters of public interest. But for the provisions of s. 299(1)(d)(ii), members of the public would have the right at common law to comment on and fairly criticize the Commission, its members and their work, whether or not the criticism brought the Commission or its members into disrepute. As Lord Denning M.R. stated in Reg. v. Commissioner of Police of the Metropolis; Ex parte Blackburn [No. 2] [16] :

It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. [17] 1. [1968] 2 Q.B. 150, at p. 155. 2. See ibid., at pp. 155-156; Schering Chemicals Ltd. v. Falkman Ltd., [1982] Q.B. 1, at p. 22.

In Attorney-General v. Times Newspapers Ltd. [18] , Lord Simon of Glaisdale perceived freedom of speech as a necessary pre-requisite of informed decision-making in a democratic society. He said:

The first public interest involved is that of freedom of discussion in democratic society. People cannot adequately influence the decisions which affect their lives unless they can be adequately informed on facts and arguments relevant to the decisions. Much of such fact-finding and argumentation necessarily has to be conducted vicariously, the public press being a principal instrument. [19] 1. [1974] A.C. 273, at p. 315. 2. See also Reference re Alberta Statutes, [1938] S.C.R. 100, at p. 133; Switzman v. Elbling and Attorney-General (Quebec), [1957] S.C.R. 285, at p. 306; New York Times Co. v. Sullivan (1964), 376 U.S. 254, at pp. 269-270, 297; Retail, Wholesale & Department Store Union, Local 580 v. Dolphin Delivery Ltd. (1986), 33 D.L.R. (4th) 174, at pp. 183-184.

Secondly, apart from s. 299(1)(d)(ii), members of the public could lawfully publish truthful statements about the Commission or its members even though those statements brought the Commission or its members into disrepute. Whatever the scope of the common law offence of scandalizing the court may be, it is not applicable to the Commission or its members.

Thirdly, the paragraph gives the Commission a protection against criticism beyond that deemed necessary for the established courts of justice to perform their functions and retain the confidence of the community.

Fourthly, nothing was put to this Court that suggested that public confidence in the Commission would be likely to be undermined unless the Commission was given the extraordinary protection which s. 299(1)(d)(ii) purports to give to the Commission. Nor was it suggested that the Commission or its members required greater protection from unwarranted attacks than that enjoyed by the judges of the established courts. Indeed, counsel for the informant and counsel for the Attorney-General of the Commonwealth argued for the validity of the paragraph on the basis that fair comment and justification were defences to any charge brought pursuant to it. Significantly, they put no argument to the Court to justify the validity of the paragraph if it was construed to exclude those "defences", although counsel for the Attorney-General of the Commonwealth asserted at one stage of his submissions that the paragraph was valid even if it excluded those defences.

Because the question of whether a subject matter is incidental to a constitutional power is frequently a matter of degree, this Court will hesitate to substitute its judgment for that of Parliament on the issue of whether an incidental matter has a reasonable connexion with an acknowledged head of Commonwealth power. However, the ultimate responsibility under the Constitution for determining that question lies with this Court. As Sir Edmund Barton pointed out in Jumbunna [20] :

Clearly the questions whether the end is legitimate and within the scope of the Constitution, whether the means are appropriate and plainly adapted to the end, and consistent with the letter and spirit of the Constitution, are questions for the Court. Moreover, where the issue is whether a law for the protection of a quasi-judicial body is reasonably and appropriately adapted to achieving a purpose connected with a head of Commonwealth power, the judgment and experience of this Court as the ultimate appellate and constitutional court of the nation make it uniquely qualified to determine whether the law is so adapted. 1. (1909) 6 C.L.R., at p. 345.

When s. 299(1)(d)(ii) is evaluated in the light of the history of the protection given to the established courts, the failure of the informant and the Attorney-General of the Commonwealth to suggest any reason why the Commission or its members should have greater protection than that given to those courts, and the far reaching interference with freedom of speech by s. 299(1)(d)(ii), the proper conclusion is that that paragraph goes beyond what is reasonably and appropriately adapted to the ends which s. 51(xxxv) of the Constitution seeks to achieve. In The Commonwealth v. John Fairfax & Sons Ltd. [21] , Mason J. said:

It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action. 1. (1980) 147 C.L.R. 39, at p. 52.

It is not possible to hold the paragraph valid by any process of severance or through the application of s. 15A of the Acts Interpretation Act 1901 Cth. To do so would require this Court to engage in the legislative process which is the domain of Parliament.

The questions in the stated case should be answered: