Plaintiff v Defendant

CONSTITUTIONAL LAW - Implied freedom of communication concerning government and political matters - Whether sale of legislation a burden on political communication - Prerogative power to publish legislation - Power of the State to enter into contracts and sell legislation.

ADMINISTRATIVE LAW - Freedom of information - No access to documents that contain information that is available for purchase by the public - Freedom of Information 1982 ss 13, 14(1)(b).

1 The plaintiff, Andre McKechnie, seeks declaratory relief in essence about the following two questions:

(a) whether it is unlawful for the defendant, the State of Victoria, to make legislation available for purchase by the public, or to provide a mechanism to make legislation available for purchase by the public; and

(b) whether it is unlawful for the defendant to rely upon s 14(1)(b) of the Freedom of Information Act 1982 when the information concerned is legislation.

2 Mr McKechnie is concerned about the ways in which the State of Victoria publishes and sells Victorian legislation, or otherwise makes it available to the public.

3 As the proceeding developed, Mr McKechnie also sought to argue that the implied right of freedom of political communication contained in the Commonwealth Constitution applied so that the sale of legislation by the State of Victoria was unconstitutional.

4 Mr McKechnie is a prisoner, at the time of the hearing in Hopkins Correctional Centre in Ararat, Victoria. He is subject to the internal operating procedures in the prison. Prisoners at Hopkins are not able to access the internet, but restricted computers are available in the prison library. They enable prisoners to access the monthly issued updates of the complete ANSTAT Victorian Acts and Regulations on CD-ROM, but prisoners are not allowed to access online legal databases such as Austlii. Mr McKechnie says that he does not have access to authorised legislation. During out of cell hours, he can visit the prison library, but he says that there is only one computer that can access the ANSTAT product. The library hours are 9:30am to 11:00am and 1:00pm to 4:15pm, Monday to Sunday. Prisoners may also request hard copies of limited pages or sections of legislation by submitting a Prison Request for Legal Resources form, or they can request to purchase legislation through Hopkins property as a 'special spend'. Mr McKechnie contends that it is extremely difficult or unworkable to do this.

5 Mr McKechnie has previously made applications for copies of legislation under the Freedom of Information Act 1982 ('FOI Act').[1] These applications have been refused because the documents are available for purchase and the State has relied on the provisions of s 14(1)(b) of the FOI Act.[2]

6 The defendant issued a summons seeking the summary dismissal of the proceeding as an abuse of process of the Court. It did so because it contended that the Victorian Civil and Administrative Tribunal had already determined a proceeding brought by Mr McKechnie about the issues that he now wanted to raise.[3] I dismissed the defendant's summons without a hearing on its merits because I considered that the hearing and determination of a summary dismissal application was an inappropriate way to determine the issues that Mr McKechnie sought to raise.

7 Sections 13 and 14(1)(a)-(b) of the FOI Act state:

Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to -

(a) a document of an agency, other than an exempt document; or

(b) an official document of a Minister, other than an exempt document.

(1) A person is not entitled to obtain access under this Part to -

(a) a document which contains information that is open to public access, as part of a public register or otherwise, in accordance with another enactment, where that access is subject to a fee or other charge;

(b) a document which contains information that is available for purchase by the public in accordance with arrangements made by an agency; ...

Mr McKechnie's submissions on the implied right of freedom of political communication

8 Mr McKechnie's case sought to distinguish between information contained in legislation, being the words arranged in the legislation, and the means or medium by which that information was conveyed to readers, whether in a printed volume or otherwise. He argued that the State could not charge for the sale of that information, or information legislation as he called it. A State law which imposes a charge for the sale of this information is invalid, but the State could charge for the means or medium of communicating the information. He argued that the imposition of a charge for the information was an invalid burden on freedom of communication about government or political matters.

9 Mr McKechnie contended that legislation is information and must not be confused with the means by which it can be conveyed. A printed copy of an Act is paper and ink arranged so as to convey information. It is the information which is the legislation, not the paper and ink. The information age separated the information which is the legislation from its method or medium of conveyance. He gave as an example that when a bound volume of legislation is sold, the purchase price is not attributed to the information, rather it is attributed to the 'conveyance' of the legislation, being the bound volume.

10 Mr McKechnie's second argument was that it was unlawful for the State to rely on s 14(1)(b) of the FOI Act by refusing access to copies of legislation because it only applies to documents which contained information that is available for purchase by the public. Such information, when it is legislation, could not be the subject of a charge to members of the public who wished to obtain it, because that would be an invalid burden on the freedom of communication by its terms and operation and its effect.

11 The defendant argued that it was too late for Mr McKechnie to advance this constitutional argument, as he had only raised it shortly before the hearing without serving notices under s 78B of the Judiciary Act 1903 (Cth). To permit him to rely on it would be inconsistent with the overarching obligations of the Civil Procedure Act 2010. In any event, s 14(1)(b) did not restrict a person from accessing legislation freely, let alone communicating about government or political matters. The implied right of freedom of political communication had not been infringed, as the State had not placed any burden on political communication.

12 After hearing these submissions, I ruled on 3 June 2022 that Mr McKechnie had not established that his freedom of political communication had been infringed or a burden placed on it. I gave some reasons then, but I will again now explain my conclusion.

13 Section 78B of the Judiciary Act 1903 (Cth) requires the Court to ensure that when a cause involves a matter arising under the Constitution, or involving its interpretation, the Court must be satisfied that a notice of the cause, or the proceeding, specifying that matter, has been given to the Attorneys-General and a reasonable time has elapsed since the giving of the notice.

14 Section 78B does not prevent the Court hearing the cause pending the issue of a notice, no matter how trivial or unarguable the constitutional point may be. The matter must truly involve a matter arising under the Constitution or involving its interpretation. In Re Culleton,[4] Gageler J, quoting from Glennan v Commissioner of Taxation,[5] said:

[I]n terms of s 78B, a cause does not 'involve' a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does.

Gageler J added, '[i]n short, the constitutional point must be real and substantial'.[6]

15 In my opinion, Mr McKechnie's constitutional argument based on the implied right of freedom of political communication does not involve a matter arising under the Commonwealth Constitution or involving its interpretation. I do not consider that Mr McKechnie has established an arguable infringement or breach of that right.

16 The implied right of freedom of political communication is only infringed and only invalidates the exercise of legislative, or perhaps executive power, when three matters are resolved in favour of a person making such a claim.[7] The first is whether the law in its terms, operation or effect burdens freedom of communication about government or political matters. In my opinion, the State of Victoria's actions in making legislation available for purchase does not, in its operation or effect, burden freedom of communication about government or political matters. The fact that the State makes legislation available free of charge through the internet does not mean that when it charges a fee for the sale of printed copies and the information in it, it imposes a burden on political communication. Rather, the different circumstances in which a fee is charged in one instance, but not another, reflect the State's decision to make legislation available to the public by different means.

17 In my opinion, s 14(1)(b) of the FOI Act does not do that. It is part of a scheme which gives a right of access to documents that did not previously exist. Section 14(1)(b) narrows the category of documents to which the right of access otherwise granted by the FOI Act applies. The fact that Parliament could have created a more extensive right of access, including to documents which contain information available for purchase by the public, does not burden the right of political communication. It means that the right of access that Parliament has created does not apply to some documents and information.

18 In view of my conclusion that Mr McKechnie has not established the first matter required to prove a breach of the constitutional right, it is unnecessary to consider the second and third matters required. The second, assuming that the first question is answered affirmatively, is whether the purpose of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. The third is, assuming the law has a legitimate purpose, whether it is reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government.[8]

19 I do not consider that Mr McKechnie's arguments that his right of freedom of political communication has been infringed or burdened raises an argument under the Commonwealth Constitution or involves its interpretation. I refused Mr McKechnie leave to further amend his originating motion to raise these arguments, because I did not consider that they were arguable and, as a result, there was no need to adjourn the case and require that s 78B notices be served.

20 Mr McKechnie seeks declarations that, first, it is unlawful for the State of Victoria to make legislation available for purchase by the public or to provide a mechanism to make it so available, and secondly, that it is unlawful for the State to rely on s 14(1)(b) of the FOI Act when the information concerned is legislation.

21 Mr McKechnie's case challenges the State's actions in making the information available for purchase, being the words or text of the legislation rather than the means of its conveyance or communication. Mr McKechnie pointed to the State's reliance on s 14(1)(b) and its reference to information being available for purchase. He argued that 'legislation' was 'information' within the meaning of the FOI Act. He submitted that a printed copy of an Act contained legislation, but was not of itself legislation. The information was the legislation and not the means by which it was conveyed.

22 Mr McKechnie argued that the State provides legislation to the public via the internet free of charge. It thereby conveys information free of charge. The State also provides legislation to the public via other methods, for example in printed volumes. In those circumstances, rather than just seeking payment for the conveyance of the information online, the State also seeks payment for the information itself. He argued that this was clear from the State's reliance on s 14(1)(b) of the FOI Act, which applies to a document that contains information that is available for purchase by the public. He submitted that the 'information' in the present case was 'legislation'.

23 The State, by providing a mechanism for legislation to be available for purchase, makes unlawful use of s 14(1)(b) of the FOI Act in response to FOI requests for access to legislation by contending that legislation is information available for purchase by the public.

24 The State does not possess a prerogative to sell information legislation. The information, being the legislation, could not be sold. It belongs to the community and the people.

25 Mr McKechnie claimed to have standing to seek the declarations because he had a special interest, being a prisoner in custody without access to the internet, which was the primary way that other members of the public could obtain legislation directly from the defendant without charge. He could only obtain legislation directly from the defendant if he paid for it. He argued that this requirement for payment seriously affected his right to freely and easily access legislation. He is being held in custody by the State and being refused access to legislation under the FOI Act because of the State's reliance on s 14(1)(b). If granted, the declarations he seeks would establish that his rights, and the rights of those who share his standing, were substantially the same as the rights possessed by the wider community.

26 Mr McKechnie suggested that steps could be taken to enable prisoners to better access legislation on the internet.

27 The defendant submitted that Mr McKechnie did not have standing to seek the declarations, as he was not challenging a decision to prevent him from accessing legislation. Instead, he was challenging the State's entry into contracts of sale for legislation when he was not a party to such contracts. He was also challenging the State's reliance on s 14(1)(b) in circumstances where he had not challenged VCAT's findings made in the proceedings that he commenced, that the State was entitled to rely on that provision. Mr McKechnie did not have any special interest above that of an ordinary member of the public. In any event, Mr McKechnie had not identified any decision susceptible to judicial review. There was no unlawfulness and the declarations that he sought were hypothetical and would have no real effect.

28 The defendant submitted that it was lawful for the State to sell, and to provide a mechanism to sell, legislation. It also submitted that the State was entitled to rely on s 14(1)(b) of the FOI Act to deny access to a document and that VCAT's decision on that issue was correct.

29 The defendant submitted that s 20(1) of the Subordinate Legislation Act 1994 required the Government Printer to ensure that copies of statutory rules could be purchased on demand by the public from a prescribed bookshop. While there was no equivalent legislation conferring such a power on the executive to sell legislation, that right continued in the exercise of the Crown's prerogative, complemented by its non-statutory power to enter into contracts. The defendant referred to s 8A of the Copyright Act 1968 (Cth) and the judgment of Long Innes CJ in Eq in Attorney-General for New South Wales v Butterworth & Co (Australia) Ltd[9] that the State had the prerogative to publish legislation.

30 The defendant also argued that Mr McKechnie's claims for declarations were in respect of 'abstract or hypothetical questions'[10] rather than determinations of his rights. Accordingly, the Court should not entertain his arguments on these issues.

31 For the purposes of this case, I find that Mr McKechnie has a special interest in the matters that he wishes to argue that is over and above that of other members of the public. These matters concern the validity of restrictions on his capacity to obtain legislation, including the charges imposed by the State.[11] His other means of possible access to legislation are more limited than members of the community who are not in prison.

32 However, Mr McKechnie has not established his claim to the making of either declaration. The defendant has prerogative power to publish legislation and is entitled to charge for its purchase. The decision in Attorney-General for New South Wales v Butterworth & Co (Australia) Ltd[12] establishes that the Crown by virtue of its prerogative has the exclusive right of printing and publishing statutes. The State can enter into contracts to sell copies of legislation for a fee to purchasers.

33 I do not accept Mr McKechnie's argument that the State cannot sell the information contained in legislation. The State may make legislation available in different ways, one being to sell printed copies. When it does so, it lawfully sells the information contained in those copies. While citizens must have access to the laws of the State, no principle of the law prevents the State selling printed copies of the law. The State has power to enter into contracts to sell legislation passed by the Victorian Parliament in whatever form it chooses and to sell the information contained in the legislation. State Governments have wide power to enter into contracts.[13] It is not unlawful for the State to make legislation available for purchase by the public or to provide a mechanism to make it available for purchase by the public.

34 It is also lawful for the State to rely on s 14(1)(b) of the FOI Act when the information concerned is legislation. Section 14(1)(b) applies to all information that is available for purchase by the public in accordance with arrangements made by an agency. The term information can apply to the matters contained in legislation. That is what VCAT decided, in my opinion correctly, when Mr McKechnie raised the question in 2020. The Senior Member stated:[14]

Application of section 14(1)(b) of the FOI Act

At [12(b)], I have found that the Legislative Material sought by Mr McKechnie is available for purchase on the Website or by attendance at the TIMG Bookshop.

I further find that this means that the Legislative Material is available for purchase 'by the public'. In this regard, I accept the submissions of the OCPC that the reference to the public means the public generally, and the section does not require that every person can in fact effect a purchase of the Legislative Material.

In other words, the fact that Mr McKechnie's ability to purchase the Legislative Material may be constrained to some extent by his detention, and the rules that apply within the Prison, does not mean that the Legislative Material ceases to be available to the general public. To hold otherwise would lead to an absurd result that it would only be necessary for a person seeking information under the FOI Act to prove that one other person (not necessarily the person making the FOI request) lacked the ability to access a document in order to give rise to an obligation on the part of an agency to provide access.

35 There is another reason why Mr McKechnie's claims for declarations cannot be granted. The declarations that he seeks raise hypothetical issues and his claim is not based on any particular facts, for instance the charge that the State imposes for the sale of particular legislation that he seeks. As stated by Mason CJ and Justices Dawson, Toohey and Gaudron in Ainsworth v Criminal Justice Commission:[15]

It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise." However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest" and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen" or if "the Court's declaration will produce no foreseeable consequences for the parties".

36 Mr McKechnie has not established the facts that would be required to consider the first declaration that he seeks. There is no evidence as to how the fee charged for legislation is calculated, or whether it is possible to divide the fee between the information and the means of its conveyance, to use Mr McKechnie's analysis. Nor is it appropriate to make a declaration about the lawfulness of the State relying on s 14(1)(b) to refuse access to information when that access is requested, as much may depend on the facts of the particular case. He seeks declarations without the existence of any legal controversy. His argument is abstract and seeks to advance a theory of the difference between information and the means of its conveyance that does not relate to any current dispute.[16]

[1] Affidavit of Debra Coombs dated 12 October 2022, [2].

[2] Andre McKechnie v Officer of the Chief Parliamentary Counsel (Review and Regulation) [2020] VCAT 506.

[3] Ibid. The defendant also referred to Andre McKechnie v Office of the Chief Parliamentary Counsel (No 2) (Review and Regulation) [2020] VCAT 1430.

[4] [2017] HCA 3; (2017) 340 ALR 550.

[5] (2003) 198 ALR 250, 253.

[6] Re Culleton [2017] HCA 3; (2017) 340 ALR 550, [29].

[7] The authorities are conveniently discussed by Niall JA in Cotterill v Romanes [2021] VSC 498.

[9] [1938] NSWStRp 9; (1938) 38 SR (NSW) 195.

[10] Citing Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ).

[11] Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, 530-1 (Gibbs J), 547 (Mason J).

[12] [1938] NSWStRp 9; (1938) 38 SR (NSW) 195.

[13] L'Hullier v State of Victoria [1996] VicRp 79; [1996] 2 VR 465, 483 (Callaway JA) citing New South Wales v Bardolph (1934) 52 CLR 455, 462, 495-6, 501-3, 505-8 and 517-21.

[14] McKechnie v Office of the Chief Parliamentary Counsel (Review and Regulation) [2020] VCAT 506, [26]-[28].

[15] [1992] HCA 10; (1992) 175 CLR 564, 581-2 (citations omitted).

[16] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564; McKechnie v Victorian Civil and Administrative Tribunal (2020) 62 VR 54, 88 [82], 91 [91], and 92 [94].