How is the judicial branch of government affected by the implied

By Eugene Stewart,2014-06-13 16:03
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How is the judicial branch of government affected by the implied




    Judicial Conference of Australia Colloquium 2007 Sydney

    Sunday 7 October 2007

    Steven Rares*

    It is just over 10 years since former New Zealand Prime Minister David Lange made his most significant contribution to Australian law allowing the High

    Court of Australia to expound that the Constitution contained an implication of freedom of communication on government and political matters. This enables the people to exercise free and informed choice as electors (Lange v Australian 1Broadcasting Corporation). But, does it affect the principles, or operation, of open justice? What can the public, and in particular, the media now see of any documentary material used in court? With more and more written and electronic material being used in court proceedings, what rights do persons who are not parties to the case being heard have to access this material?

    1. Today I want to discuss two concepts which are fundamental to the way we are governed. The first is the principle of open justice. That principle requires that justice should be administered in public, transparently and openly, and that every member of society has the right not only to see what takes place in open court but to make fair and accurate reports of it, to discuss it and to comment on it.

    2. The second principle has been the subject of more recent exposition but is rooted in similarly fundamental values. It is the freedom from legislative or executive control of citizens‟ rights to discuss matters concerning government and politics. In 1997 the High Court of Australia identified this as an implication in the Constitution of the Commonwealth which constrained the making of laws or the use of executive power to inhibit citizens from being able to participate in the parliamentary democracy and mechanism for changing the Constitution by

    referendum for which the Constitution itself provided. If there are to be elections

    * A judge of the Federal Court of Australia. The author gratefully acknowledges the assistance of his associate, Aaron Timms, in the preparation of this paper. The errors are the author‟s alone. 1 (1997) 189 CLR 520


    or referenda, the electors must be able to discuss freely matters of government and

    politics which fall within the spectrum of issues about which they may wish to

    cast their vote.

    3. Courts, too, are institutions of government in a democratic society. Each of the

    three arms of government, the Parliament, the executive and the judiciary, has a

    role in making and changing the laws under which citizens live. The Constitution

    defuses the power of each arm of government by distributing various

    responsibilities and functions among them.

    4. The Parliament is given the power to enact legislation which, subject to its

    constitutional competence, determines public and private legal rights, obligations,

    duties and discretions.

    5. The executive has the traditional function of enforcing the law although it can

    exercise powers delegated to it by the legislature to make regulations within limits.

    Moreover, the executive carries out tasks confided to it by laws made by the

    Parliament. These include the exercise of powers that affect citizens and non-

    citizens in their ordinary lives and activities such as the granting of licenses,

    permissions, concessions, pensions, the collection of revenues and the prosecution

    and confinement of offenders.

    6. The judicial branch has the function of declaring the law and applying it to the

    facts of particular cases. In a constitutional democracy such as ours, it is the role

    of the courts to determine whether, ultimately, the Parliament or the executive

    have acted within the constitutional bounds of their powers. But judicial

    decisions can have political consequences. One only has to remember the

    controversy that emerged from the decision of the High Court in Mabo v State of

    2Queensland (No 2) to appreciate that by declaring the law judicial decisions can

    have profound political impacts. Political and governmental reactions follow

    from decisions of the courts. Talk back radio and the tabloid press comment daily

    on the adequacy, or more usually the perceived inadequacy, of sentences imposed

     2 (1992) 175 CLR 1


    by magistrates and judges. Frequently, they assert the need for „… the

    government to do something about it‟.

    7. Members of the community are entitled to agitate to change the law declared by

    the courts through the legal means afforded them by the Constitution. They may

    do this not only by discussing matters of government and politics and seeking to

    influence elections or politicians, but also by promoting a referendum to vest in or

    remove from the Parliament of the Commonwealth some legislative power under

    the mechanism in s 128 of the Constitution. Part of the debate on such a question

    may involve discussion about the judicial reasoning process which led to various

    judges determining the law which is sought to be changed, modified or addressed

    by a referendum. There is an open question whether discussion about the judicial

    reasoning process itself is protected by the implied constitutional freedom, as the

    diversity of views expressed by McHugh and Kirby JJ in APLA Ltd v Legal

    34Services Commissioner (NSW) shows.

    8. This suggests a capacity for interaction to occur between the rights of the public

    afforded under the principle of open justice and the implied constitutional

    freedom of communication on government and political matter. And it raises an

    important question as to whether each of those legal concepts affects the ability of

    third parties, including the media, to have access at any particular time to the

    material before the Court on which it is acting or asked to act. It is to those

    matters that I wish now to turn.

    The principle of open justice

    9. A classic statement which goes to the heart of one aspect of the principle of open

    5justice, is the aphorism of Lord Hewart CJ in R v Sussex Justices; Ex parte


     3 (2005) 224 CLR 322 4 (2005) 224 CLR 322 at 360 [63], 440 [347] 5 The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 262-263 per Barwick CJ,

    Gibbs, Stephen and Mason JJ 6 [1924] 1 KB 256 at 259


    „It is not merely of some importance but is of fundamental importance,

    that justice should not only be done, but should manifestly and

    undoubtedly be seen to be done.‟

    10. A second fundamental aspect of the principle lies in its recognition that everyone is entitled to access to the Courts. This is achieved in two ways. First, members of the public are entitled to be present in court, not by leave or licence, but as of

    7right. As long ago as 1829, in Daubney v Cooper the Court of King‟s Bench

    held that:

    „… it is one of the essential qualities of a court of justice that its

    proceedings should be public, and that all parties who may be desirous of

    hearing what is going on … have a right to be present for the purpose of

    hearing what is going on.‟

    11. Secondly, there is a right to publish a fair and accurate report of court proceedings

    8which is of fundamental importance. McHugh JA described the importance

    which the common law has attached to a fair and accurate report of court proceedings as being illustrated by the rule that its publication is not a contempt

    9of court even though it is likely to prejudice the fair trial of pending proceedings.

    McHugh JA said:

    „It is also illustrated by the rule that a fair and accurate report of court

    proceedings made in good faith is not an actionable defamation. Without

    the publication of the reports of court proceedings, the public would be

    ignorant of the workings of the courts whose proceedings would inevitably

    become the subject of the rumours, misunderstandings, exaggerations and

    falsehoods which are so often associated with secret decision making. The

    publication of fair and accurate reports of court proceedings is therefore

    vital to the proper working of an open and democratic society and to the

    maintenance of public confidence in the administration of justice. It is a 10right which can only be taken away by words of plain intendment.‟

     7 (1829) 10 B & C 237 at 240 8 John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at

    481C-E per McHugh JA, with whom Glass JA agreed; see too: Esso Resources Australia Ltd v

    Plowman (1995) 183 CLR 10 at 43 per Toohey J 9 Police Tribunal 5 NSWLR at 481D-E; R v Evening News; Ex parte Hobbs [1925] 2 KB 158; Re

    Consolidated Press Ltd; Ex parte Terrill (1937) 37 SR (NSW) 255; 54 WN 106 10 Police Tribunal 5 NSWLR at 481E-F


    12. These values are by no means unique to Australian or English common law. A striking early formulation came when Mirabeau rose before the French National Constituent Assembly in the early 1790s and declared:

    „Donnez-moi le juge que vous voudrez, partial, corrupt, mon ennemi

    même, si vous voulez: peu m‟importe pourvu qu‟il ne puisse rien faire 11qu‟à la face du public.‟

    1213. As Lord Shaw of Dumfermline remarked in Scott v Scott the principle had

    moved Jeremy Bentham to say:

    „Publicity is the very soul of justice. It is the keenest spur to exertion, and

    the surest of all guards against improbity. It keeps the judge himself, while 13trying, under trial.‟

    14. Nonetheless, the principle of open justice is not absolute. It is subject to the fundamental principle that the chief object of every court of justice must be to

    14secure that justice is done. Thus, as Viscount Haldane LC remarked in Scott,

    there are three recognised categories of exceptions to the open administration of justice. The first concerns proceedings involving wards of the Court or children. The second concerns persons who are incapable of conducting their own affairs, quaintly referred to in 1913 as „lunatics‟. In each of those two classes of cases his

    Lordship explained that the Court was really sitting primarily to guard the interests of the ward or mentally incapable person. Thus its jurisdiction in that respect was paternal and administrative, and the disposal of controversial questions was an incident only in the exercise of the jurisdiction. In order to achieve the proper care of the child or mentally incapable person, it may often be necessary to exclude the public so that the Court can attain its primary object of achieving justice. Viscount Haldane LC explained that the broad principle of

     11 “Give me whatever judge you will partial, corrupt, my enemy even, if you must; these things

    will trouble me little, so long as what he does, he is only able to do it in the face of the public.” As quoted in Robert W Millar, “The Formative Principles of Civil Procedure” (1923-24) 18 Illinois

    Law Review 1 at 156. 12 [1913] AC 417 at 477 13 J Bowring, ed, The Works of Jeremy Bentham, Vol 4 (Edinburgh: William Tait, 1843), pp 316-317;

    as cited by Spigelman CJ in John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62

    NSWLR 512 at 525 [61] 14 [1913] AC at 437-438


    open justice then yields to the paramount duty which is the care of the ward or the

    mentally disabled person. The third class of exception involves commercial

    secrets, secret processes, confidential information and the like where the open

    administration of justice in respect of the secret would destroy its subject matter.

    15. Ultimately, the exceptions may be seen to resolve into the principle that the Court

    will sit in public unless it is necessary, in the interests of justice, not to do so.

    Necessity, not preference, is the metwand by which the Court is guided to move

    15from the rigour of always sitting in public.

    16. Every court has an implied jurisdiction to exercise powers which are necessary to

    ensure that justice is done in the case before it. The superior courts of record, in

    addition, have inherent jurisdiction, a more elusive concept, as Dawson J outlined

    16in Grassby v The Queen, to prevent abuse of their processes and to punish for

    contempt. Moreover, the inherent jurisdiction of a superior court of unlimited

    jurisdiction entails a general responsibility for the administration of justice.

    Under the Constitution, the division of powers, including judicial power, between

    the Commonwealth and the States may affect the ambit of the inherent

    jurisdiction of superior courts of record of their different polities, but that is a

    topic for another day.

    17. The implied or inherent power of a court to do justice in the proceedings before it

    authorises it to make such orders as are necessary in the interests of justice to

    protect the integrity of these proceedings. Thus, the Courts possess the power to

    make orders in the proceedings by prohibiting disclosure of matter or excluding

    the public so that the overriding purpose of the proceedings, namely to do justice

    17between the parties according to law, may be achieved. Examples of this are the

    power to exclude the public or to limit the disclosure of evidence or matter in

    order to protect:

     15 Scott (1913) AC at 437 16 (1989) 168 CLR 1 at 16 17 Food Improvers Pty Limited v BGR Corporation Pty Limtied (No 2) (2006) 155 FCR 216 at 232

    [29], Llewellyn v Nine Network Australia Pty Ltd (2006) 154 FCR 293 at 295-296 [8]-[13]; see

    also Re Her Honour Chief Judge Kennedy; Ex parte West Australian Newspapers Ltd [2006]

    WASCA 172 at [39]-[40] per Steytler P, with whom Roberts-Smith and McLure JJA agreed


    18; a person‟s identity (such as an informer);

    19; a victim of an alleged or attempted blackmail from identification;

    ; trade secrets;

    ; confidential information;

    20; matters attracting public interest immunity.

    18. If such things were revealed in court, it could have the effect of entirely deterring

    a person seeking to exercise his, her or its legal rights. Legislatures also create

    21express power in courts to limit publicity for more abundant caution.

    The implied constitutional freedom

    19. An implication is a curious thing. It is an expression or meaning conveyed by, or

    inherent within, words spoken or used in a document. But it involves a different

    concept, idea or matter. The statement or document necessarily conveys, at the

    same time and by the same medium, something which has not been explicitly

    stated. Politicians have a gift for creating implications of all sorts, particularly in

    the language they use in legislation. An implication is not, however, connoted by

    Sir Winston Churchill‟s prognostication of the likely action of Russia in October

    1939 as being:

     22„… a riddle wrapped in a mystery inside an enigma …‟

    20. Our country‟s founding fathers were wise enough to create a constitution in which

    implications abound. As Dixon J said in Australian Communist Party v The

    23Commonwealth, the Constitution:

     18 Cain v Glass (1985) 3 NSWLR 230; D. v National Society for the Prevention of Cruelty to

    Children [1978] AC 171 19 John Fairfax Publications Pty Limited v Local Court of New South Wales (1991) 26 NSWLR 131 20 e.g. Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39; Commonwealth v Northern

    Land Council (1993) 176 CLR 604 21 see e.g. ss 17(4), 50 of the Federal Court of Australia Act 1976 (Cth) 22 Radio broadcast, London, 1 October 1939 Winston S. Churchill: His Complete Speeches, 1897-

    1963, ed Robert Rhodes James, vol 6, p 616 (1974) 23 (1951) 83 CLR 1 at 193


     is an instrument framed in accordance with many traditional

    conceptions, to some of which it gives effect, as, for example in separating

    the judicial power from other functions of government, others of which are

    simply assumed. Among these I think that it may fairly be said that the

    rule of law forms an assumption.

    21. That assumption profoundly affects the way in which the Australian nation is

    governed. Even though New Zealand has not yet taken up the opportunity

    24afforded by s 6 of the Commonwealth of Australia Constitution Act 1900 (Imp),

    to be admitted as part of the Commonwealth of Australia, its former Prime

    Minister, the Rt Hon David Lange was instrumental in exposing an implication in

    the Constitution of the Commonwealth. The High Court noted that discussion of

    matters concerning New Zealand may often throw light on government or

    25political matters in Australia. This was because of matters such as geography,

    history and the constitutional and trading arrangements between our nations. It is

    unlikely that their Honours had in mind what Mr Lange said in his valedictory

    speech in 1996 to the Parliament of New Zealand:

    „I want to thank those people whose lives were wrecked by us. They had

    been taught for years they had the right to an endless treadmill of

    prosperity and assurance, and we did them. People over 60 hate me.‟

    22. The subject matter of the defamation on which he sued is not revealed by the

    26report of Lange v Australian Broadcasting Corporation. Mr Lange had

    commenced the proceedings in 1989, while Prime Minister. He alleged that the

    ABC had broadcast a „Four Corners‟ program which conveyed a number of

    defamatory imputations including that he was guilty of abuse of public office and

    he was unfit to hold public office. The defendant broadcaster sought to plead a

    defence of qualified privilege arising pursuant to a freedom guaranteed by the


    23. The High Court held that freedom of communication on matters of government

    and politics was an indispensable incident of the system of representative

     24 or, „covering clause 6‟ 25 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 576 26 (1997) 189 CLR 520


    government which the Constitution creates by directing that the members of the

    House of Representatives and the Senate shall be „directly chosen by the people

    27of the Commonwealth and the States, respectively. So, when a law of a State or

    federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution,

    the Court said that two questions had to be answered before the validity of the law could be determined. Those questions were:

    1. Does the law effectively burden freedom of communication about

    government or political matters either in its terms, operation or


    2. If the law effectively burdens that freedom, is it reasonably

    appropriate and adapted to serve a legitimate end in a manner

    which is compatible with the maintenance of the constitutionally

    prescribed system of representative and responsible government

    and the procedure prescribed by s 128 for submitting a proposed

    amendment of the Constitution to the informed decision of the


    2924. If the first question were answered „Yes‟ and the second „No‟, the law is invalid.

    3025. In Lange, Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and

    Kirby JJ characterised the implication as being negative in nature: it invalidates laws and, consequently, creates an area of immunity from legal control, particularly from legislative control, but the implied freedom confers no rights on individuals.

    26. The second question involves the formation of a value judgment, rather than a determination that the law is either essential or unavoidable. There is little

     27 Lange 189 CLR at 599 28 Lange 189 CLR at 567 as varied in Coleman v Power (2004) 220 CLR 1 at 50-51 [83]-[96] per

    McHugh J, 77-78 [196] per Gummow and Hayne JJ, 82 [211] per Kirby J 29 Lange 189 CLR at 567-568 30 Lange 189 CLR at 560


    difference between the concept of „reasonably appropriate and adapted‟ and the

    31notion of „proportionality.

    Are courts, judges or judgments within the implied constitutional freedom?

    3227. An underlying rationale in Lange is that the electors must have the ability to

    acquire relevant information in order to cast a fully informed vote in an election

    for members of the Parliament. Accordingly, the ability to cast such a fully

    33informed vote depends upon the freedom of communication which Lange

    identified as an indispensable incident of the representative government mandated

    3435by the Constitution. Gummow, Kirby and Crennan JJ pointed out in Roach

    that a law will be invalid which proscribes communication under the guise of

    characterising it as „abusive‟ or „insulting‟ or „offensive‟ if the words used are not

    so hurtful that they may be regarded as intended, or to be reasonably likely, to

    provoke unlawful physical retaliation. Gummow, Kirby and Crennan JJ

    3637explained the decision in Coleman v Power, saying:

    „Were that not so, and were a broader meaning given to the area of

    proscribed communication then the end served by the statute would

    necessarily be the maintenance of civility of discourse; given the

    established use of insult and invective in political discourse, that end 38could not satisfy the second question or test in Lange.‟

    28. Another effect of the constitutional implication is that the common law must

    39conform with it. As the Court said in Lange:

    „The development of the common law in Australia cannot run counter to 40constitutional imperatives. The common law and the requirements of the

    Constitution cannot be at odds.‟

     31 Roach v Electoral Commissioner [2007] HCA 43 at [85] per Gummow, Kirby and Crennan JJ 32 189 CLR 520 33 189 CLR 520 34 Roach [2007[ HCA 43 at [86] per Gummow, Kirby and Crennan JJ 35 [2007] HCA 43 at [87] 36 (2004) 220 CLR 1 at 77 [193], 87 [226] 37 [2007] HCA 43 at [87] 38 220 CLR 1 at 78-79 [197]-[199, 98-99 [255]-[256] 39 Lange 189 CLR at 566 40 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 140

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