case_text: applicant sought to bolster its argument that the phrase 'promotes or incites' requires regard to be had to the effect of the publication by referring the Court to more general principles relating to the construction of statutes which seek to impair or abrogate a fundamental right such as freedom of expression. Reference was made to what Gleeson CJ said in Al-Kateb v Godwin [2004] HCA 37 ; (2004) 219 CLR 562 at 577: 'Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.'


case_outcome: approved

case_text: is not to the point, argued the Attorney, that the subject matter of the publications broadly, acts of terrorism by Islamic fundamentalists might in some way pertain to law reform questions in Australia. In APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44 ; (2005) 224 CLR 322, the High Court rejected the plaintiffs' attempts to obtain the protection of the constitutional freedom for their professional advertisements by relating them to tort law reform. In particular, Gleeson CJ and Heydon J observed at [28]: 'The regulations are not aimed at preventing discussion of, say, "tort law reform", or some other such issue of public policy. They restrict the marketing of professional services.' And at [70], McHugh J said: 'No doubt communications about the desirability of regulations prohibiting or curtailing the ability of lawyers to advertise their services ensure that voters are informed about government policies that affect their access to such information. They are communications for the purpose of the Lange doctrine. So also are communications that inform the public about government policies affecting the capacity and opportunity of individuals to enforce their legal rights. I did not understand the State and federal governments to dispute that cl 139(1) cannot validly apply to communications of these types. But so far as the communications relied on in this case are concerned, only that part of the advertisement referring to "Premier Bob Carr and Senator Helen Coonan" concerns political or governmental matters within the meaning of Lange . The rest of that advertisement concerns matters that fall outside the protection of Lange . That part of the advertisement which concerns political matter is not so intertwined with non-protected matter that it cannot be severed from it.' In relation to APLA (see [182] above), the applicant made the following points: (a) The first limb of the Lange test looks to the 'terms, operation or effect of the law' . See also the passage from McHugh J in Coleman v Power at [91] (quoted at [179] above). (b) The practical effects of the law in the present case include preventing Australian voters from reading the contents of the books. To that extent the law restricts Australian voters from knowing what are the ideas contained in the books and what those ideas convey about the nature of the terrorist threat. (c) The Attorney's conclusion in the first two sentences of [185] above latches on to what the law is directed to and ignores its practical effect.


case_outcome: cited

case_text: applicant submitted that this Court needs to consider whether the Review Board's conclusions may have been different had it inquired into the whole question of educational merit. According to the Attorney, that submission overstates the Court's role in reviewing administrative decisions generally, and decisions of the Review Board in particular. In doing so, the applicant seeks to impose on the Review Board, and the Board, a duty to inquire which does not appear either expressly or by implication on the terms of the Act. As Wilcox J noted in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169 170, the circumstances in which an administrative decision will be invalid for failure to inquire are 'strictly limited'. His Honour considered that it was only in cases where it was 'obvious that material is readily available which is centrally relevant to the decision to be made' where proceeding to a decision without attempting to obtain that information may properly be described as unreasonable in the Wednesbury sense ( Associated Provincial Picture House v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223 at 169 170). I cannot agree with these complaints. First, there was no obligation on the Review Board to make some wider or roving enquiry as to the educational or literary merit of each book, other than perhaps to have regard to 'material [that] is readily available ... [and] centrally relevant to the decision to be made' where proceeding to a decision without attempting to obtain that information may properly be described as unreasonable in the Wednesbury sense: Prasad at 169 170 per Wilcox J. That is not this case. There was no attack on the Review Board's finding that neither publication exhibited any discernible literary or educational merit on the basis that such a finding was not reasonably open. Clearly it was.


case_text: at the matters generally, in the applicant's submission, the following are protected: (1) the freedom of the Australian people to discuss government and political matters: Nationwide News v Wills [1992] HCA 46 ; (1992) 177 CLR 1 at 50; (2) the dissemination of information, opinions and ideas about all aspects of the Government of the Commonwealth: Nationwide News v Wills at 74; Cunliffe v The Commonwealth [1994] HCA 44 ; (1994) 182 CLR 272 at 364; and (3) the freedom to communicate views on a wide range of matters that may call for, or are relevant to, political action or decision: Australian Capital Television Pty Limited v The Commonwealth [1992] HCA 45 ; (1992) 177 CLR 106 at 138.


case_title: Australian Capital Television Pty Limited v The Commonwealth [1992] HCA 45 ; (1992) 177 CLR 106


case_outcome: applied

case_text: Gummow and Hayne JJ commented on the applicability of United States cases on First Amendment freedom of speech, although it has been observed that such cases have no direct application to the implied freedom under the Australian Constitution : see, for example, Heerey J in Brown v Classification Review Board (1998) 82 FCR 225 at 242 243. As Gummow and Hayne JJ point out, however, the United States cases are not entirely irrelevant (at [188]): 'The Australian constitutional and legal context is different from that of the United States. The United States decisions about so-called "fighting words" find no direct application here. The United States references to "narrowly limited" definitions of speech which can be proscribed find echoes in the application of well-established principles of statutory construction to the Vagrants Act. Once it is recognised that fundamental rights are not to be cut down save by clear words, it follows that the curtailment of free speech by legislation directed to proscribing particular kinds of utterances in public will often be read as "narrowly limited".' Third, Gummow and Hayne JJ posited that the 'narrowly limited' approach leads to an interpretation which focuses on the effect of the words spoken rather than simply on the words themselves (at [191]): 'Making criminal the use of certain kinds of words to another can be explained only by reference to the effect on, or the reaction of, the person to whom the words are directed.' Fourth, Gummow and Hayne JJ noted that the legislation is to be interpreted in the context of an implied constitutional freedom of communication. The preferred construction should, therefore, be one which is reasonably and appropriately adapted to serve the legitimate public need for order and security ([195] [197]). The last of the three descriptions formed the basis of the Review Board's decision to classify the publications 'RC' in this case. The decision of the Review Board that was the subject of Brown relied upon the same paragraph. Although primarily concerned with the meaning of 'instruct', the Attorney submitted that the approach of the Court in Brown to the construction of that word is instructive for the interpretation in this case of the words 'promote' and 'incite'. In Brown , French J described the phrase 'promote, incite or instruct' as (at 239D): '... a collocation of overlapping meanings. According to the Shorter Oxford English Dictionary , to promote is to further the growth, development, progress or establishment of (anything); to further advance, encourage. To incite, is to urge or spur on; to stir up, instigate, stimulate. To instruct, is relevantly to furnish with knowledge or information; to teach or educate.' In his Honour's opinion, the relevant inquiry for the Board was as follows (at 239F-G): 'Consistently with the principle of freedom of expression recognised by the Code itself, it must appear from the publication in question that it goes beyond the mere provision of information about crime and teaches or educates in matters of crime. Reflecting the theme of promotion or incitement the provision of information on matters of crime will constitute instruction if it appears from the content and context of the article, objectively assessed, as purposive, the relevant purpose being to encourage and equip people with the information to commit crimes. So construed, this provision of the Code in my opinion seeks by reasonable and appropriate means to protect the rule of law which is of the essence of democratic society with representative and responsible government.' Heerey J agreed with French J, stating that (at 242C): '... one is not concerned with the actual effect of the publication. Still less is the actual intent of the author or publisher relevant. The [test] is an objective one.' The Attorney submitted that the Court's endorsement of an objective and purposive approach enables the Board and the Review Board to focus upon the content of the publication. The content of the publication is, after all, the focus of the classification process. A construction of para (c) of Item 1 of the publications table in the Code that requires separate consideration of the effect, likely or actual, of a publication shifts the focus from the content of the publication to a speculative consideration of whether, notwithstanding that its purpose, objectively determined, is to promote or incite crime or violence, the publication has that actual or likely effect. According to the Attorney's submission, the Court's approach in Brown is also consistent with the absence of an express requirement in para (c) that the Board or Review Board examine the effect of a publication. The terms of para (c) can be contrasted with para (a), which requires the publications to deal with the matters described in the paragraph 'in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be classified'. Similarly, para (b) requires the publication to describe or depict a person who is, or appears to be, a child under 18 'in a way that is likely to cause offence to a reasonable adult'. As Sundberg J stated in Brown (at 257B): 'The absence of such a requirement, when it has been included in pars (a) and (b), is a clear indication that it is not to apply to publications falling within par (c).' The Attorney submitted that, in imposing an 'effect' requirement in paras (a) and (b), the legislature has recognised that while the content specified in those paragraphs may be offensive to some segments of the community, it may not be to others. In that situation, assessing the content in accordance with the standards and sensibilities of reasonable adults will strike an appropriate balance between the general principle that adults should be able to read, hear and see what they want, and the competing community concerns about such matters as drug misuse or addiction, crime, cruelty or violence. By contrast, the Attorney continued, the concern addressed in para (c) is not a matter of general community sensibilities, but relates rather to community safety. The absence of an express requirement to consider the effect of a publication that 'promotes, incites or instructs in matters of crime or violence' can to some degree be explained by the possibility that a publication that has such a purpose, objectively determined, will provoke the commission of the very matter of crime or violence promoted or incited, or in respect of which the reader is instructed. The potential for a publication satisfying the description in para (c) to have such an 'effect' indeed serious consequences is built in to the description of the activities outlawed by the paragraph. The Attorney submitted that in classifying Join the Caravan and Defence of Muslim Lands 'RC', the Review Board considered them as a whole. In accordance with the construction of the paragraph settled upon by the Full Court in Brown, the Review Board found that the objective purpose of both publications was to promote and incite in matters of crime or violence. In particular, the Review Board took the view that the purpose of the publications was to incite actions of the type proscribed in s 101.1 of the Criminal Code . Although the main text of the publications was written before the enactment by the Commonwealth of the terrorism provisions, the Review Board considered that their republication, together with additional material explaining the relevance of the text in modern times, gave the books 'a contemporary relevance and context'. Finally, the Attorney submitted that even if his construction of para (c) of Item 1 of the publications table in the Code were not accepted, and consideration of the effect of a publication was in fact required before a publication could be properly described as promoting or inciting crime or violence, the Review Board clearly undertook such consideration in this case. It noted, for example, that the publisher of Join the Caravan described the book as 'one of the principal inspirations for thousands of Muslims from all over the world to go and fight in Afghanistan'. It considered the book to be 'specific and explicit in its support for and encouragement of fighting against non-believers', and was 'an impassioned plea to Muslims to fight for Allah and engage in acts of violence, specifically in Afghanistan but also elsewhere'. The book Defence of Muslim Lands contained passages which described martyrdom operations and an analysis supporting such operations as legal. The Review Board considered that both publications had the potential to appeal 'to some disenfranchised segments of the community', and were 'designed to encourage people to take up arms and commit specific crimes against non-believers, in the cause of Islam'. In its reply submissions, the applicant referred to the dictionary definitions of the words 'promote' and 'incite'; in the case of the word 'promote' to the meaning: 'to further the growth, development, progress ... encourage.'; and in the case of the word 'incite' to the meaning: 'to urge or spur on; to stir up, instigate, stimulate'. It was submitted that the definitions of the words themselves contain a requirement to look to the effect or likely effect of the action, in this case publications of the books. I reject this submission. There is nothing in the definition of either word which requires one to look to the effect or likely effect of the relevant action. More fundamentally, the terms of para (c) of Item 1 of the Code dealing with those publications which are to be classified 'RC' cannot be construed by reference to para (c) alone, but are to be construed by reference to the context ( CIC Insurance Limited v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ) of the similar mandatory 'RC' classifications, namely, those in paras (a) and (b) as well. The terms of all three paragraphs are set out in [54] above. It is to be noted that both para (a), which includes the words '... in such a way that they offend against the standards of morality, decency', etc, and para (b), which includes the words '... in a way that it is likely to cause offence to a reasonable adult', look at the effect or likely effect of the publication on the reader, in contrast to the terms of para (c), which is no doubt what prompted Sundberg J in Brown (at 256G 257B) to observe: 'The appellants contended that the companion words "promote" and "incite", which it was said involve an intent to bring about the commission of a crime and have the commission of a crime as a likely consequence, mean that those elements are present in the word "instruct". I do not agree. The approach to interpretation identified by the maxim noscitur a sociis (the meaning of a word is affected by its companions) is only to be used when the meaning of word is ambiguous or unclear. See Commissioner of Taxation v Whitehouse [1961] HCA 10 ; (1961) 104 CLR 25 at 31 per Dixon CJ, Fullagar and Kitto JJ and R v Morton (1986) 42 SASR 571 at 575. I do not think "instruct" has either of those qualities. Further, the other publications in the RC classification are defined in terms that look to the effect or likely effect of the publication on the reader. Thus par (a) deals with publications which, for example, describe matters of drug misuse "in such a way that they offend ...". Paragraph (b) deals with publications which describe or depict a minor in a way that is "likely to cause offence" to a reasonable adult. Paragraph (c), by contrast, does not require that the publication have any effect or likely effect on the reader. The absence of such a requirement, when it has been included in pars (a) and (b), is a clear indication that it is not to apply to publications falling within par (c).' Further, and in any event, contrary to the assertion of the applicant referred to in [90] above, the Attorney submitted that the Review Board clearly took the view that the actions described in the books would, if carried out, be intended to advance a religious, if not political or ideological, cause (subs 100.1(1)(b)). It also found that the actions advocated by the books were intended to intimidate the public or a section of the public (subs 100.1(1)(c)), and would, if carried out, cause 'serious harm to a person, serious damage to property, death' or the endangerment of a person's life (subs 100.1(2)). It expressly found that 'the objective purpose' of both books 'was to promote and incite actions of precisely this type'. In circumstances where the activities promoted in the book were intended to cause the harm to which the Review Board referred, there could be no question of them falling within subs 100.1(3). According to the Attorney, construing the absence of a reference to that subsection in the Review Board's reasons as an error of law would be to fall into the error cautioned against by French J in Brown (at 240) , of judicialising the administrative decision-making processes of the Review Board 'by imposing rigorous standards of detailed explanation'. Even if it be correct to say that the Review Board was required to consider whether each book incited or promoted the performance of each element of the crime of engaging in a 'terrorist act' as defined in s 100.1 of the Criminal Code (see the relevant extract in [86] above), a matter not free from argument, in my opinion it did so. In its reasons in relation to each book it referred to the fact that it had regard to s 101.1 of the Criminal Code which provides that 'a person commits an offence if the person engages in a terrorist act'; it set out the elements of the definition of 'terrorist act' in s 100.1 in particular those in paras 101.1(1)(b) and (c) and 101.1(2)(a), (b), (c) and (d). It did not refer to subs 101.1(3) action which is excluded from being a 'terrorist act' no doubt because, in its words, it '... was satisfied that the objective purposes of Join the Caravan/Defence of the Muslim Lands was to promote and incite actions of precisely this type', that is, of the type going to make up the elements of the offence. The fact that the Review Board's conclusion was expressed holistically rather than by reference to each element provides no greater foundation for an allegation of error of law than does the absence of a reference to subs 100.1(3) in the Review Board's reasons. There is, as the Attorney submitted, a danger of the kind warned against by French J in Brown (at 240G), namely, of judicialising the administrative decision-making processes of the Review Board 'by imposing rigorous standards of detailed explanation'. This alleged error also cannot be sustained. This is dealt with at [112] [118], [135] [139] and [145] [147] below. The Attorney's submission is that the question of whether a publication has educational merit is a question of fact for the determination of the Board or Review Board. All that subs 11(b) requires is that the Review Board consider the question. In this case, the Review Board determined that the publications had no discernible educational merit. That conclusion was open to it in respect of both publications. The applicant's characterisation of the adjective 'discernible' as going no further than saying that by reading each book the members of the Review Board did not discern any educational or literary merit, takes the Review Board far enough for the purposes of satisfying subs 11(b). This Court, the Attorney submitted, should only interfere with that conclusion if it was not reasonably open on the material before it: see Brown at 258G per Sundberg J. (2) FAILURE TO TAKE INTO ACCOUNT THE PERSONS OR CLASS OF PERSONS TO OR AMONGST WHOM EACH BOOK IS PUBLISHED OR INTENDED OR LIKELY TO BE PUBLISHED The applicant submitted that the two books in the present case are very different from the Rabelais article under consideration in Brown (albeit that in that case French J found it to be arguable that in some respects the article would fall 'within a broad understanding of political discussion' (at 238E)). In the applicant's submission, Join the Caravan and Defence of the Muslim Lands go to the heart of one of the most profound issues facing the Australian electorate, namely, the nature of the terrorist threat and the degree to which that threat calls for measures which impact upon previously accepted rights and liberties. THE SECOND LIMB OF THE LANGE TEST: IF THE LAW EFFECTIVELY BURDENS FREEDOM OF COMMUNICATION ABOUT GOVERNMENT OR POLITICAL MATTERS, IS THE LAW REASONABLY APPROPRIATE AND ADAPTED TO SERVE A LEGITIMATE END IN A MANNER COMPATIBLE WITH THE SYSTEM OF GOVERNMENT PRESCRIBED BY THE CONSTITUTION ? At the outset, the Attorney submitted that a Full Court of this Court in Brown considered and upheld the validity of the provision challenged in those proceedings: French J at 238E 239A; Heerey J at 246B G and Sundberg J at 258B D. As a result, he submitted I am bound to reject any suggestion that the provision, as construed by that Court, is beyond constitutional power. In the present case, even if one has regard to the related State laws, which give practical significance to the process of classification that takes place under the Commonwealth legislation, the Attorney submitted that no burden is placed on the freedom of communications about government or political matters. The classification scheme affects publications that promote, incite or instruct in matters of violence or crime. Communications of this nature do not fall within the constitutional freedom. As Heerey J said in Brown at 246E: 'All this may be in one sense politics, but the Constitutional freedom of political communications assumes indeed exists to support, foster and protect representative democracy and the rule of law. The advocacy of law breaking falls outside this protection and is antithetical to it ... There is no Constitutional protection for speech which is 'mere advocacy' or abstract teaching of the necessity or propriety of criminal or violent conduct. The reason is simple. Such conduct is not part of the system of representative and responsible government or of the political and democratic process.' In the Attorney's submission, it is ironic that the freedom of political communications is invoked to support the publication of writings of a person whose motto was said to be 'Jihad and the rifle alone. No negotiations, No conferences and No dialogue'. As the motto suggests, the publications do not engage in political communications but advocate the abandonment of political change through speech and non-violent processes. Rather, resort to violence to effect change is advocated. According to the Attorney, in no way can material of this kind be characterised as advancing or facilitating Australia's system of representative government. The Attorney submitted that the challenged provision of the Code is reasonably appropriate and adapted to serve the legitimate end of protecting the community from potentially serious acts of crime and violence. By confining the 'RC' category to publications dealing with subject matters within a limited compass, the Code serves that legitimate end in a manner which is compatible with the system of government prescribed by the Constitution . Each member of the Full Court in Brown made findings to this effect: French J at 238G 239A; Heerey J at 246G and Sundberg J at 258D. In its reply submissions, the applicant repeated that its invalidity submissions in [163] to [184] above only arise if the Court rejects its submissions on the meaning of the words 'promote or incite' and concludes that the Review Board was not required to consider the effect of the publications. Only in those circumstances does the applicant submit that this part of the Code constitutes a burden on the freedom of communication about government or political matters that is not reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the constitutional system of representative government. The applicant did not accept that Brown upheld the constitutional validity of the provision challenged in these proceedings. According to the applicant, Brown considered the validity of the criterion for classification 'to instruct in matters of crime or violence'. The Full Court was not concerned with the constitutional validity of the criterion 'to promote or incite in matters of crime or violence'. This Court is not, therefore, bound by the decision in Brown to reject the submission that the provision is beyond constitutional power. THE FIRST LIMB The applicant accepted that before a law will be held invalid it must effectively burden the freedom of communication about Federal Government and political matters by tending to impair the effective operation of the constitutional system of representative government. According to the applicant, the passage from Heerey J in Brown set out at [180] above has to be read in relation to the facts of Brown. There was not, and could not have been, any suggestion that the Rabelais article was relevant to the political process, for the reasons given by Heerey J at 246C. The applicant submitted that a publication which advocates crime or violence may or may not be a communication about government or political matters. While advocacy of violence may not be part of a system of responsible representative government, an understanding of such advocacy (including for example the motives of those advocating violence and the likelihood of such violence occurring) may well be part of the political process. It gave an example from a different historical context. In September 1951, there was a referendum held in Australia by which the government of the day sought to ban the Communist Party. A voter seeking to understand the central aims and beliefs of communists and of the Communist Party would have been assisted in that understanding by reading The Communist Manifesto, a book which unequivocally advocated violence: 'The Communists disdain to conceal their views and aims. They openly declare that their ends can be attained only by the forcible overthrow of all existing social conditions. Let the ruling classes tremble at a communist revolution. The proletarians have nothing to lose but their chains. They have a world to win. Proletarians of all countries, unite!' I am unable to comprehend how the Code, specifically its classification scheme which restricts publications that promote, incite (or instruct) in matters of violence or crime, accepting for present purposes that that latter matter is to be determined by reference to the purpose or intent of the publication rather than its effect or likely effect, '... impacts or tends to impair the effective operation of the constitutional system of representative and responsible government by impermissibly burdening communications on political or governmental matters': Coleman v Power at [91] per McHugh J. Even if one accepts that there could not be any suggestion that the Rabelais article in Brown was relevant to the political process, what was said by Heerey J at 246E (quoted at [180] above) was equally apposite to the present case. Indeed, despite the best efforts of Senior Counsel for the applicant to make the two publications in the present case relevant to that political process, it is important not to lose sight of what that political process is the effective operation of the constitutional system of representative and responsible government. Communications that promote, incite (or instruct) in matters of violence or crime do not fall within its architecture or framework; they therefore cannot burden or impair it.


case_text: fundamentally, the terms of para (c) of Item 1 of the Code dealing with those publications which are to be classified 'RC' cannot be construed by reference to para (c) alone, but are to be construed by reference to the context ( CIC Insurance Limited v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ) of the similar mandatory 'RC' classifications, namely, those in paras (a) and (b) as well. The terms of all three paragraphs are set out in [54] above. It is to be noted that both para (a), which includes the words '... in such a way that they offend against the standards of morality, decency', etc, and para (b), which includes the words '... in a way that it is likely to cause offence to a reasonable adult', look at the effect or likely effect of the publication on the reader, in contrast to the terms of para (c), which is no doubt what prompted Sundberg J in Brown (at 256G 257B) to observe: 'The appellants contended that the companion words "promote" and "incite", which it was said involve an intent to bring about the commission of a crime and have the commission of a crime as a likely consequence, mean that those elements are present in the word "instruct". I do not agree. The approach to interpretation identified by the maxim noscitur a sociis (the meaning of a word is affected by its companions) is only to be used when the meaning of word is ambiguous or unclear. See Commissioner of Taxation v Whitehouse [1961] HCA 10 ; (1961) 104 CLR 25 at 31 per Dixon CJ, Fullagar and Kitto JJ and R v Morton (1986) 42 SASR 571 at 575. I do not think "instruct" has either of those qualities. Further, the other publications in the RC classification are defined in terms that look to the effect or likely effect of the publication on the reader. Thus par (a) deals with publications which, for example, describe matters of drug misuse "in such a way that they offend ...". Paragraph (b) deals with publications which describe or depict a minor in a way that is "likely to cause offence" to a reasonable adult. Paragraph (c), by contrast, does not require that the publication have any effect or likely effect on the reader. The absence of such a requirement, when it has been included in pars (a) and (b), is a clear indication that it is not to apply to publications falling within par (c).' The applicant referred to Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520 at 567, 568, where the High Court set out a two-stage test for determining whether a law infringes the constitutional implication. The test, as slightly modified in Coleman v Power , is as follows: (1) Does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? (2) If so, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the system of government prescribed by the Constitution ?


case_text: the present case, the applicant submitted, the underlying reason for narrowly defining the meaning of 'promote or incite' is to ensure that the law does not extend beyond its public purpose: Coleman v Power [2004] HCA 39 ; (2004) 220 CLR 1 at [182] per Gummow and Hayne JJ. Thus, if the author of the books had the purpose of promoting or inciting crime or violence yet the books did not or were not likely to have that effect, no overriding public purpose would be served by banning the sale of the books. This is particularly so where the ideas contained in the books are said to be at the frontline of the 'battle of ideas' to which the Federal Government refers in its 2004 White Paper entitled 'Transnational Terrorism: the Threat to Australia' . To ban the books deprives Australians of the opportunity of reading the material and making up their minds as to the extent of the threat from terrorism and the ideas at conflict in the so-called 'battle'. This approach to the interpretation of the Code, the applicant submitted, is on all fours with the approaches adopted, particularly in the joint judgment of Gummow and Hayne JJ, but also in the judgment of Kirby J, in Coleman v Power . Coleman v Power concerned s 7(1)(d) of the Vagrants, Gaming and Other Offences Act 1931 (Qld). The appellant argued that the section breached the implied freedom of political communication (to use a shorthand expression). In order to determine whether the section breached the implied freedom, it was necessary to first construe the section. In construing the legislation, Gummow and Hayne JJ, in their joint judgment, made a number of points which, according to the applicant, impact upon the exercise of statutory interpretation required in the present case. First, at [185] they said: 'First and foremost is the fact that s 7(1)(d) creates a criminal offence. The offence which it creates restricts freedom of speech. That freedom is not, and never has been, absolute. But in confining the limits of the freedom, a legislature must mark the boundary it sets with clarity. Fundamental common law rights are not to be eroded or curtailed save by clear words.' The applicant referred to Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520 at 567, 568, where the High Court set out a two-stage test for determining whether a law infringes the constitutional implication. The test, as slightly modified in Coleman v Power , is as follows: (1) Does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? (2) If so, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the system of government prescribed by the Constitution ? According to the Attorney, it appears that the Lange test as refined in Coleman v Power involves two limbs, but the second has three elements: 1. Determining whether the law effectively burdens communication about government or political matters. 2. Identifying the object of the law and determining whether it is incompatible with the system of government prescribed by the Constitution . 3. Determining whether the manner in which the law achieves that object is incompatible with the system of government prescribed by the Constitution , in that the law is not reasonably appropriate and adapted to its end. THE FIRST LIMB The Attorney submitted that the concept of 'communication about government or political matters' is not free-standing. To the contrary, the concept is confined by those provisions of the Commonwealth Constitution which require that federal elections and referenda be free and that federal electors have access to information relevant to their choice and which prescribe the federal system of responsible government principally, ss 7 , 24 , 64 and 128 : see Lange at 560 561; see also at 567, 571, 575. According to the Attorney, as Lange made clear, the constitutional requirement of freedom of communication 'can validly extend only so far as is necessary to give effect to these sections' (at 567): see also Coleman v Power , McHugh J at [89], Kirby J at [228], Callinan J at [291] [292] and [294] and Heydon J at [320], [331] and [335]. The Attorney submitted that it is of the essence of the Lange test that before a law will be held invalid, it must ' effectively burden' (at 567) (emphasis added) the freedom of communication about federal government and political matters by actually tending to impair the effective operation of the constitutional system of representative and responsible government ( Coleman v Power per McHugh J at [91]). As McHugh J went on to say in Coleman v Power , '[i]n all but exceptional cases, a law will not burden such communications unless, by its operation or practical effect, it directly and not remotely restricts or limits the content of those communications or the time, place, manner or conditions of their occurrence' (at [91]). The Attorney submitted that the present Code does not so burden the freedom of communication about government or political matters. Contrary to the applicant's submission, in the Attorney's submission the question for the Court is not whether some means other than those chosen by the Parliament may have been preferable or less onerous, but rather whether Parliament's choice was a reasonable one in light of the burden which it places on the implied freedom of communication about government and political matters: Lange at 561 562, 567. See also Levy v State of Victoria [1997] HCA 31 ; (1997) 189 CLR 579 at 598 per Brennan CJ, 608 per Dawson J, 614 615 per Toohey and Gummow JJ, 618 620 per Gaudron J, 627 628 per McHugh J, 647 648 per Kirby J; Coleman v Power at [31] per Gleeson CJ, [l00] per McHugh J, [292] per Callinan J, [328] per Heydon J; cf. at [235] per Kirby J; Mulholland v Australian Electoral Commission [2004] HCA 41 ; (2004) 220 CLR 181 at [32] [33] per Gleeson CJ, [248] [249] and [256] [267] per Kirby J, [360] per Heydon J. For the corresponding position under the Canadian Charter of Rights and Freedoms, see R v Sharpe [2001] 1 SCR 45 at [96] per McLachlin CJ, Iacobucci, Major, Binnie, Arbour and LeBel JJ: 'It suffices if the means adopted fall within a range of reasonable solutions to the problem confronted'. The Attorney submitted that the circumstances which bear upon the reasonableness of the Parliament's choice of means will vary from case to case. But they will usually include the nature and importance of the legislative object and the purpose, operation and effect of the particular law, including the degree to which the law burdens the discussion of government or political matters. Where the law is directed at or involves a substantial curtailment of discussion of federal government or political matters, 'reconciliation with the constitutional implication will be more difficult': Cunliffe v The Commonwealth at 339 per Deane J. As to the distinction between laws that have the purpose of restricting discussion of government or political matters and those that merely affect it incidentally, see generally Levy v State of Victoria at 611 and 614 per Toohey and Gummow JJ, at 618 619 per Gaudron J, at 645 per Kirby J. See also Coleman v Power at [326] per Heydon J; cf. at [30] [31] and [33] per Gleeson CJ; Mulholland v Australian Electoral Commission at [40] per Gleeson CJ. Here, the law challenged is not directed to communications about government or political matters. Depending on those matters, the extent of availability of alternative means to achieve the legislative object may also be relevant. In relation to APLA (see [182] above), the applicant made the following points: (a) The first limb of the Lange test looks to the 'terms, operation or effect of the law' . See also the passage from McHugh J in Coleman v Power at [91] (quoted at [179] above). (b) The practical effects of the law in the present case include preventing Australian voters from reading the contents of the books. To that extent the law restricts Australian voters from knowing what are the ideas contained in the books and what those ideas convey about the nature of the terrorist threat. (c) The Attorney's conclusion in the first two sentences of [185] above latches on to what the law is directed to and ignores its practical effect. I am unable to comprehend how the Code, specifically its classification scheme which restricts publications that promote, incite (or instruct) in matters of violence or crime, accepting for present purposes that that latter matter is to be determined by reference to the purpose or intent of the publication rather than its effect or likely effect, '... impacts or tends to impair the effective operation of the constitutional system of representative and responsible government by impermissibly burdening communications on political or governmental matters': Coleman v Power at [91] per McHugh J. Even if one accepts that there could not be any suggestion that the Rabelais article in Brown was relevant to the political process, what was said by Heerey J at 246E (quoted at [180] above) was equally apposite to the present case. Indeed, despite the best efforts of Senior Counsel for the applicant to make the two publications in the present case relevant to that political process, it is important not to lose sight of what that political process is the effective operation of the constitutional system of representative and responsible government. Communications that promote, incite (or instruct) in matters of violence or crime do not fall within its architecture or framework; they therefore cannot burden or impair it. On any view, it is not necessary that I consider the second limb of the Lange test or, on the Attorney's view of Coleman v Power (see [187] above), the second and third elements of that limb. Had it been necessary, I would have found the object of the relevant provisions of the Code to be compatible with the system of government prescribed by the Constitution and that the manner in which those provisions achieve that object are compatible with the system of government prescribed by the Constitution ; in other words, the relevant provisions of the Code were reasonably appropriate and adapted to that end.


case_text: at the matters generally, in the applicant's submission, the following are protected: (1) the freedom of the Australian people to discuss government and political matters: Nationwide News v Wills [1992] HCA 46 ; (1992) 177 CLR 1 at 50; (2) the dissemination of information, opinions and ideas about all aspects of the Government of the Commonwealth: Nationwide News v Wills at 74; Cunliffe v The Commonwealth [1994] HCA 44 ; (1994) 182 CLR 272 at 364; and (3) the freedom to communicate views on a wide range of matters that may call for, or are relevant to, political action or decision: Australian Capital Television Pty Limited v The Commonwealth [1992] HCA 45 ; (1992) 177 CLR 106 at 138. And at [379] [380], per Hayne J: '[379] Accepting that there are these connections between political controversy or debate and some questions about personal injury litigation or some particular pieces of litigation does not mean that the impugned regulations effectively burden the freedom of communication about government or political matters whether in their terms, operation or effect. What the impugned regulations preclude is the publication, by a lawyer, of an advertisement including: (a) any reference to or depiction of personal injury; (b) any circumstance in which personal injury may occur or any activity, event or circumstance that suggests or could suggest the possibility of personal injury or any connection to or association with personal injury or a cause of personal injury; or (c) a personal injury legal service. That is, the impugned regulations take as the legal (and practical) focus of their operation the publication of communications about events that have happened or might happen, and have caused or might cause personal injury, and the rights and remedies of individuals. Save in extraordinary circumstances, the rights and remedies in respect of which a personal injury legal service might be engaged will be rights and remedies existing under the law as it stood at the time an injury was sustained. A communication about any of these subjects is not a communication about government or political matters. [380] As Brennan J pointed out in Cunliffe v The Commonwealth , it is necessary to distinguish between laws controlling an activity and laws restricting political discussion about whether that activity should be controlled. The impugned regulations are of the former type, not the latter. They control an activity lawyers' advertising. They are directed at communications about events (actual or hypothetical) and about rights and remedies. They are not directed at communications about whether the happening of events should be regulated differently or whether available rights and remedies should be changed. These are reasons enough to conclude that the impugned regulations do not inhibit the freedom of communication about government or political matters.' In this case, the Attorney submitted, the challenged law is directed to controlling (or preventing) the activity of promoting, inciting or instructing in matters of violence or crime. The law is not directed at communications about the nature or extent of anti-terrorism laws, which is a subject untouched by the law in issue. No part of that political communication involves promoting violence or crime; at least not one that falls within the protection implied to give effect to the provisions in the Constitution that serve to protect and promote the democratic institutions established therein. The Attorney submitted that the circumstances which bear upon the reasonableness of the Parliament's choice of means will vary from case to case. But they will usually include the nature and importance of the legislative object and the purpose, operation and effect of the particular law, including the degree to which the law burdens the discussion of government or political matters. Where the law is directed at or involves a substantial curtailment of discussion of federal government or political matters, 'reconciliation with the constitutional implication will be more difficult': Cunliffe v The Commonwealth at 339 per Deane J. As to the distinction between laws that have the purpose of restricting discussion of government or political matters and those that merely affect it incidentally, see generally Levy v State of Victoria at 611 and 614 per Toohey and Gummow JJ, at 618 619 per Gaudron J, at 645 per Kirby J. See also Coleman v Power at [326] per Heydon J; cf. at [30] [31] and [33] per Gleeson CJ; Mulholland v Australian Electoral Commission at [40] per Gleeson CJ. Here, the law challenged is not directed to communications about government or political matters. Depending on those matters, the extent of availability of alternative means to achieve the legislative object may also be relevant.


case_outcome: distinguished

case_text: support of its submission that a publication does not promote crime or violence unless the publication had an effect of the kind in (i) of [23] above, the applicant relied on three New Zealand decisions: • GA Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (' Moonen No. 1 ') • GA Moonen v Film and Literature Board of Review [2002] 2 NZLR 754 (' Moonen No. 2 ') • Society for the Promotion of Community Standards Inc v Film and Literature Board of Review [2005] 3 NZLR 403.


case_title: GA Moonen v Film and Literature Board of Review [2002] 2 NZLR 754


case_title: Holland v The Queen (2005) 193 CLR 140

case_text: Attorney noted that in Holland v The Queen (2005) 193 FLR 140, a matter in which a small amount of political advocacy on laws pertaining to pedophilia was blended with a larger amount of child pornography, Roberts-Smith JA said the following (at [236]) in the course of rejecting the appellant's claim that the imported documents were protected by the constitutional freedom: 'The conduct of political discourse or debate about those matters neither requires nor justifies their presentation in combination with child pornography as defined by the legislation.' In the Attorney's submission, the analogy with the present case is that political discourse or debate about anti-terrorism laws does not require or justify publication of the two books the subject of these proceedings. The particular calls to arms contained therein are, at best, only remotely connected to that political debate. In summary, the Attorney submitted that to the extent that the applicant relies upon the freedom of political communications to protect the publications the subject of these proceedings from the Act and the Code on the basis that the content of those publications are political speech, it must be rejected. The freedom does not extend to speech advocating violence or crime to effect changes in laws, policies or government. To the extent that the applicant's reliance is premised upon the publications being in some way relevant to the issue of anti-terrorism laws, any restriction effected by the law on political communications is remote and not direct. THE SECOND LIMB: FIRST ELEMENT The Attorney submitted that the Court would not reach this issue unless it first found that the challenged law effectively burdened the freedom of communication about federal government and political matters. In the Attorney's submission, there appears to be no dispute that the primary object of the challenged law is to protect the Australian community from violence and crime. Needless to say, the object of the law is not incompatible with the system of government prescribed by the Constitution . Indeed, public safety is one of the most critical responsibilities of any government. THE SECOND LIMB: SECOND ELEMENT


case_text: applicant referred to Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520 at 567, 568, where the High Court set out a two-stage test for determining whether a law infringes the constitutional implication. The test, as slightly modified in Coleman v Power , is as follows: (1) Does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? (2) If so, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the system of government prescribed by the Constitution ? The Court in Lange emphasised that the freedom of communication only covers those communications necessary for the functioning of the institutions of representative and responsible government identified in the text and structure of the Constitution (at 561). More particularly, to the extent that the freedom of communication is an implication drawn from ss 7 , 24 , 64 and 128 of the Constitution , the implication extends only insofar as it is necessary to give effect to those sections (at 567). In 'The Freedom of Political Communication Since Lange' in Stone A and Williams G, The High Court at the Crossroads: Essays in Constitutional Law' (The Federation Press, 2000) at pp 6 7, Ms Stone summarised the post -Lange position as follows: 'Thus the effect of Lange appears to be a narrower scope for the freedom of political communication, excluding discussion that is not directed to a particular law, policy or activity of the government. However, on close analysis it is apparent that Lange does not require this conclusion nor preclude the opposite conclusion. What Lange requires is that there be a link between the discussion of some matter and the institutions of representative and responsible government that the court has identified in the text. One of these institutions is the free election of members for the House of Representatives and the Senate.' (Emphasis in original) In the applicant's submission, Join the Caravan and Defence of the Muslim Lands are relevant to the choices facing voters and to the opinions they might form as to the appropriate governmental response to the threat of terrorism. The applicant noted that there is a document in evidence that contains an extensive list of legislative measures introduced to deal with the threat of terrorism. The extent of the response is the subject of significant debate and differences of opinion. See, for example, Golder B and Williams G, "Balancing National Security and Human Rights: Assessing the Legal Response of Common Law Nations to the Threat of Terrorism" (2006) 8 Journal of Comparative Policy Analysis 43 62, and, in the political sphere, see the Senate Hansard on 5 December 2005. According to the Attorney, it appears that the Lange test as refined in Coleman v Power involves two limbs, but the second has three elements: 1. Determining whether the law effectively burdens communication about government or political matters. 2. Identifying the object of the law and determining whether it is incompatible with the system of government prescribed by the Constitution . 3. Determining whether the manner in which the law achieves that object is incompatible with the system of government prescribed by the Constitution , in that the law is not reasonably appropriate and adapted to its end. THE FIRST LIMB The Attorney submitted that the concept of 'communication about government or political matters' is not free-standing. To the contrary, the concept is confined by those provisions of the Commonwealth Constitution which require that federal elections and referenda be free and that federal electors have access to information relevant to their choice and which prescribe the federal system of responsible government principally, ss 7 , 24 , 64 and 128 : see Lange at 560 561; see also at 567, 571, 575. According to the Attorney, as Lange made clear, the constitutional requirement of freedom of communication 'can validly extend only so far as is necessary to give effect to these sections' (at 567): see also Coleman v Power , McHugh J at [89], Kirby J at [228], Callinan J at [291] [292] and [294] and Heydon J at [320], [331] and [335]. The Attorney submitted that it is of the essence of the Lange test that before a law will be held invalid, it must ' effectively burden' (at 567) (emphasis added) the freedom of communication about federal government and political matters by actually tending to impair the effective operation of the constitutional system of representative and responsible government ( Coleman v Power per McHugh J at [91]). As McHugh J went on to say in Coleman v Power , '[i]n all but exceptional cases, a law will not burden such communications unless, by its operation or practical effect, it directly and not remotely restricts or limits the content of those communications or the time, place, manner or conditions of their occurrence' (at [91]). The Attorney submitted that the present Code does not so burden the freedom of communication about government or political matters. Contrary to the applicant's submission, in the Attorney's submission the question for the Court is not whether some means other than those chosen by the Parliament may have been preferable or less onerous, but rather whether Parliament's choice was a reasonable one in light of the burden which it places on the implied freedom of communication about government and political matters: Lange at 561 562, 567. See also Levy v State of Victoria [1997] HCA 31 ; (1997) 189 CLR 579 at 598 per Brennan CJ, 608 per Dawson J, 614 615 per Toohey and Gummow JJ, 618 620 per Gaudron J, 627 628 per McHugh J, 647 648 per Kirby J; Coleman v Power at [31] per Gleeson CJ, [l00] per McHugh J, [292] per Callinan J, [328] per Heydon J; cf. at [235] per Kirby J; Mulholland v Australian Electoral Commission [2004] HCA 41 ; (2004) 220 CLR 181 at [32] [33] per Gleeson CJ, [248] [249] and [256] [267] per Kirby J, [360] per Heydon J. For the corresponding position under the Canadian Charter of Rights and Freedoms, see R v Sharpe [2001] 1 SCR 45 at [96] per McLachlin CJ, Iacobucci, Major, Binnie, Arbour and LeBel JJ: 'It suffices if the means adopted fall within a range of reasonable solutions to the problem confronted'. In relation to APLA (see [182] above), the applicant made the following points: (a) The first limb of the Lange test looks to the 'terms, operation or effect of the law' . See also the passage from McHugh J in Coleman v Power at [91] (quoted at [179] above). (b) The practical effects of the law in the present case include preventing Australian voters from reading the contents of the books. To that extent the law restricts Australian voters from knowing what are the ideas contained in the books and what those ideas convey about the nature of the terrorist threat. (c) The Attorney's conclusion in the first two sentences of [185] above latches on to what the law is directed to and ignores its practical effect. On any view, it is not necessary that I consider the second limb of the Lange test or, on the Attorney's view of Coleman v Power (see [187] above), the second and third elements of that limb. Had it been necessary, I would have found the object of the relevant provisions of the Code to be compatible with the system of government prescribed by the Constitution and that the manner in which those provisions achieve that object are compatible with the system of government prescribed by the Constitution ; in other words, the relevant provisions of the Code were reasonably appropriate and adapted to that end.


case_text: to the applicant's submission, in the Attorney's submission the question for the Court is not whether some means other than those chosen by the Parliament may have been preferable or less onerous, but rather whether Parliament's choice was a reasonable one in light of the burden which it places on the implied freedom of communication about government and political matters: Lange at 561 562, 567. See also Levy v State of Victoria [1997] HCA 31 ; (1997) 189 CLR 579 at 598 per Brennan CJ, 608 per Dawson J, 614 615 per Toohey and Gummow JJ, 618 620 per Gaudron J, 627 628 per McHugh J, 647 648 per Kirby J; Coleman v Power at [31] per Gleeson CJ, [l00] per McHugh J, [292] per Callinan J, [328] per Heydon J; cf. at [235] per Kirby J; Mulholland v Australian Electoral Commission [2004] HCA 41 ; (2004) 220 CLR 181 at [32] [33] per Gleeson CJ, [248] [249] and [256] [267] per Kirby J, [360] per Heydon J. For the corresponding position under the Canadian Charter of Rights and Freedoms, see R v Sharpe [2001] 1 SCR 45 at [96] per McLachlin CJ, Iacobucci, Major, Binnie, Arbour and LeBel JJ: 'It suffices if the means adopted fall within a range of reasonable solutions to the problem confronted'. The Attorney submitted that the circumstances which bear upon the reasonableness of the Parliament's choice of means will vary from case to case. But they will usually include the nature and importance of the legislative object and the purpose, operation and effect of the particular law, including the degree to which the law burdens the discussion of government or political matters. Where the law is directed at or involves a substantial curtailment of discussion of federal government or political matters, 'reconciliation with the constitutional implication will be more difficult': Cunliffe v The Commonwealth at 339 per Deane J. As to the distinction between laws that have the purpose of restricting discussion of government or political matters and those that merely affect it incidentally, see generally Levy v State of Victoria at 611 and 614 per Toohey and Gummow JJ, at 618 619 per Gaudron J, at 645 per Kirby J. See also Coleman v Power at [326] per Heydon J; cf. at [30] [31] and [33] per Gleeson CJ; Mulholland v Australian Electoral Commission at [40] per Gleeson CJ. Here, the law challenged is not directed to communications about government or political matters. Depending on those matters, the extent of availability of alternative means to achieve the legislative object may also be relevant.


case_text: limbs of para (a) of the definition of 'terrorist act' and both paras (b) and (c) are each essential physical elements of the offence: Lodhi v R [2006] NSWCCA 121 ; (2006) 199 FLR 303 at [90] and [93]. It follows, in the applicant's submission, that incitement or promotion of the crime of engaging in a terrorist act involves: inciting or promoting action having one of the effects listed in subs (2) of the definition of terrorist act, which will not be action that falls within subs (3); in circumstances or in a manner where such action will be attended by the motivation prescribed by para (b); and in circumstances or in a manner where such action will occur with the intention prescribed by para (c). According to the applicant, the Review Board's findings and reasoning arguably address promotion or incitement of two elements of the offence of committing a terrorist act, namely, the causing of harm (the question under subs (2) of the definition of 'terrorist act') and the requirement that the publications have the intention of advancing a political, religious or ideological cause (the question under para (b) of that definition). The reasoning may also be said to deal with whether the causing of harm would be attended by the intention defined in para (b).


case_title: Mulholland v Australian Electoral Commission [2004] HCA 41 ; (2004) 220 CLR 181


case_text: at the matters generally, in the applicant's submission, the following are protected: (1) the freedom of the Australian people to discuss government and political matters: Nationwide News v Wills [1992] HCA 46 ; (1992) 177 CLR 1 at 50; (2) the dissemination of information, opinions and ideas about all aspects of the Government of the Commonwealth: Nationwide News v Wills at 74; Cunliffe v The Commonwealth [1994] HCA 44 ; (1994) 182 CLR 272 at 364; and (3) the freedom to communicate views on a wide range of matters that may call for, or are relevant to, political action or decision: Australian Capital Television Pty Limited v The Commonwealth [1992] HCA 45 ; (1992) 177 CLR 106 at 138. The applicant submitted that clearly the prohibition of certain conduct can be compatible with the system of representative government prescribed by the Constitution . See Nationwide News v Wills at 77 per Deane and Toohey JJ. It submitted, correctly in my view, that the ultimate question on this aspect of the case is whether the relevant law does no more than is reasonably necessary to achieve the protection of the competing public interest invoked to justify the burden on the communication. It submitted that what is involved at this stage of the inquiry is a weighing of the detriment imposed by a law which burdens political communication against the benefit of a governmental regulation imposed for the benefit of public safety. The applicant further submitted that, at the outset of any balancing exercise, it is necessary to note that a more compelling justification is required in the case of a law which restricts ideas or information as opposed to a law which restricts the mode of communication of those ideas. The applicant referred to what Mason CJ said in Australian Capital Television at 143: 'A distinction should perhaps be made between restrictions on communication which target ideas or information and those which restrict an activity or mode of communication by which ideas or information are transmitted. In the first class of case, only a compelling justification will warrant the imposition of a burden on free communication by way of restriction and the restriction must be no more than is reasonably necessary to achieve the protection of the competing public interest which is invoked to justify the burden on communication. Generally speaking, it will be extremely difficult to justify restrictions imposed on free communication which operate by reference to the character of the ideas or information.' The applicant noted that a detailed understanding of the contents of the two books appears to be necessary for the conduct of policy analysis of the kind undertaken by Anthony Bulbalo and Dr Greg Fealy in Joining the Caravan: the Middle East, Islamism and Indonesia (Lowy Institute Paper, 2005) . In that publication the authors analyse 'some of the main vectors through which Islamist ideas have been transmitted to Indonesia' to propose detailed approaches for Australia's engagement with Indonesia 'to respond to the Islamist phenomenon in all its dimensions, from the spread of ideas that underpin terrorism, to the role of Islamist parties in processes of democratisation.'


case_title: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155


case_text: support of its submission that a publication does not promote crime or violence unless the publication had an effect of the kind in (i) of [23] above, the applicant relied on three New Zealand decisions: • GA Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (' Moonen No. 1 ') • GA Moonen v Film and Literature Board of Review [2002] 2 NZLR 754 (' Moonen No. 2 ') • Society for the Promotion of Community Standards Inc v Film and Literature Board of Review [2005] 3 NZLR 403. In Society for the Promotion of Community Standards Inc v Film and Literature Board of Review, the New Zealand Court of Appeal again considered the meaning of subs 3(2) of the FVPC Act, although primarily in relation to the phrase 'tends to promote'. In Society for the Promotion of Community Standards Inc v Film and Literature Board of Review , the New Zealand Court of Appeal was concerned with the second half of the phrase in subs 3(2), namely 'tends to promote or support'. McGrath and Glazebrook JJ noted that the use of the words 'tends to' was 'designed to provide a sliding scale so as to ensure that it was not necessary for the classifying authority to come to the view that the publication's effect was definitely to promote or support the specified activities' (at [100]). In construing those words, their Honours were mindful of the 'Moonen (No. 1) principles' as to adopting a meaning 'which impinges the least on freedom of expression' (at [102] [103]).


case_text: reference to 'violence' in the Code is a 'matter or thing' within the meaning of subs 21(1)(b) (the applicant cited Tan v Vocational Registration Appeal Committee (1996) 71 FCR 405 at 413G in support). According to the applicant, there is nothing in the Act or Code which indicates a contrary intention for the purposes of the common law or statutory presumption. The purpose of the Act and Code is to protect the Australian community from the effects of certain publications. That purpose is consistent with the application of the presumption. In both Statements of Reasons the Review Board, in stating the reason for its conclusion, said of the Criminal Code provisions words to the effect that: 'Under section 15.4, the offence [of engaging in a terrorist act] applies whether or not the conduct constituting the alleged offence occurs in Australia.'


case_text: applicant submitted that, consistent with the High Court's approach in Transport Publishing Co Pty Ltd v The Literature Board of Review [1956] HCA 73 ; (1956) 99 CLR 111, the Review Board was obliged, in deciding whether either book promotes, incites or instructs in matters of crime or violence under the Code, to take into account the four matters prescribed in s 11 of the Act: see [8] above. A failure to take into account any of the matters prescribed by s 11 would be a failure to take into account a mandatory consideration constituting reviewable error. In addition, the applicant submitted that the application of a construction of 'promotes, incites or instructs in matters of crime or violence' which did not permit each of those s 11 factors to bear on the conclusion of whether the book promotes, incites or instructs in matters of crime or violence would constitute the application of a wrong legal test which would be a reviewable error. In Transport Publishing the High Court considered a similar criterion of the persons, classes of persons, and age groups to or amongst whom that literature is or is intended or likely to be distributed. Dixon CJ, Kitto and Taylor JJ said (at 118): 'There is the issue as to the persons amongst whom the literature is distributed. That is of course to be proved by evidence ...' The applicant submitted that the matters listed by the Review Board in section 4 of each Statement of Reasons, 'Evidence and Other Material Taken Into Account', contain nothing which would have enabled the Review Board to consider the criterion in subs 11(d). In any event, consistent with Transport Publishing , consideration of the subs 11(d) criterion required, in the applicant's submission, consideration of evidence extraneous to the publications themselves. The applicant submitted that the Review Board: (a) made no findings at all about the persons or class of persons to or amongst whom each book is published or is intended or likely to be published; (b) while reciting in section 2 of its Statement of Reasons the various statutory provisions (including subs 11(d)), did not address any part of the criterion specified in subs 11(d); (c) did not seek or consider evidence, extraneous to the publication, on the question of the persons or class of persons to or amongst whom it is published; (d) did not have regard to the letter to the Review Board from the Mufti of the Islamic Church in Australia regarding the publications in question and other publications. The Mufti wrote: 'Whilst in my office, Mr Trad contacted one of the bookshops that was alleged to stock this material. He was advised in my presence that most of these titles were taken off the shelf after the publication of the inflammatory article by one of the Sydney tabloids last year. The manager of the bookshop advised that they wish to avoid controversy and whilst the contents of these books were in his view misrepresented by the media, the proprietors felt that self-censorship was the course of action that better served social harmony and cohesion in the present atmosphere that seems very emotive when it comes to issues related to in Islam.' The Review Board's finding that each book 'may appeal to some disenfranchised segments of the community' is a statement of the Board's view of the nature of the publication. According to the applicant, it says nothing of the statutory question posed by s 11(d). Second, a determination of the persons or class of persons to or amongst whom each book is published or is intended or likely to be published would have permitted and required a more focused and nuanced consideration of the ultimate issue. According to the applicant, the conclusion that the books incite and promote in matters of crime and violence, like the question in Transport Publishing , falls into two parts. In that case the majority considered the tendency of the literature to deprave or corrupt. They said (at 118 119): ' [O] n the question of the tendency of the literature to deprave or corrupt any such persons [i.e. those amongst whom the literature is distributed] important distinctions must be observed. For the question necessarily has two aspects or falls into two parts. One is the content and nature of the literature and the other concerns the characteristics of the persons themselves. With reference to the second of these it may be said at once that ordinary human nature, that of people at large, is not a subject of proof by evidence, whether supposedly expert or not. But particular descriptions of persons may conceivably form the subject of study and of special knowledge. This may be because they are abnormal in mentality or abnormal in behaviour as a result of circumstances peculiar to their history or situation.' In the applicant's view, the Review Board in the present case found: (a) that neither publication would appeal to members of the Australian community generally; and (b) that if either publication were to appeal to any members of the Australian community, that appeal would be to 'some disenfranchised segments of the community'. The applicant argued that a finding as to the persons or class of persons to whom the books are published, or are intended or likely to be published, would enable and require the Review Board to then consider whether the characteristics of any of those people, taken together with the nature of the literature, makes the inciting and promoting in matters of crime and violence likely. In doing so, the argument continued, it may or may not be the case that the Review Board would be entitled or required to consider evidence based on study or special knowledge about people with those characteristics. For example, if the books are published, or are intended or likely to be published, only to Dr Pennell's students, Dr Pennell would presumably be able to inform the Review Board of the characteristics of those students, which would enable an assessment of the effect or likely effect of that publication on those students. Alternatively, if the books are published, or are intended or likely to be published, to a class of persons being potential terrorist recruits, presumably the Attorney will be in a position to provide information to the Review Board on the characteristics of that class. The applicant submitted, by reference to the High Court in Transport Publishing , that the Review Board should have had evidence before it, other than the publications themselves, to enable it to consider the criterion in subs 11(d) (see [121] [122] above). According to the Attorney, that submission rests upon an oversimplification of the legislative context in which the High Court made the comment, in Transport Publishing, that evidence was necessary on the question of 'the persons amongst whom the literature is distributed'. The Attorney pointed out that, in Transport Publishing , the Literature Review Board of Queensland had prohibited the distribution of certain publications on the basis that they were, in the opinion of the Board, 'objectionable', as that term was defined in the Objectionable Literature Act 1954 (Qld) . Pursuant to that Act, an appeal from that decision lay to the Supreme Court; for the purposes of that appeal, the decision was to be treated as if it were an order made by judges. Further, s 11 of the Objectionable Literature Act provided that the Court reviewing the decision 'shall determine as an issue in the appeal the matter of whether or not the literature in question ... is objectionable under and within the meaning of this Act and, in respect of that determination, shall not be bound by the opinion of the Board'. As the Court noted, the effect of this provision was that 'the cardinal question of fact ... upon which the order of the board must depend' was 'placed wholly within the determination of the court' (at 114). The need for the court to be satisfied by evidence is one thing; according to the Attorney, it is another thing altogether to subject an administrative tribunal to the same requirement. In any event, the Court in Transport Publishing stated that however much assistance could be sought in extrinsic evidence, it could be no substitute for 'the judgment of the court on the literature itself' (at 116). The Attorney submitted that the applicant advanced the same submission as it did in respect of the consideration required by subs 11(b), namely that the Court needs to consider whether the Review Board may have reached a different conclusion 'had it inquired into the question of the persons or class of persons to or amongst whom each book is published or is intended or likely to be published'. The Attorney relied upon his response to this argument above. The terms of subs 11(d) do not require any such inquiry to be made. Contrary to the assertion of the applicant in [129] above, the Review Board did not 'find' that neither of the two publications would appeal to members of the Australian community generally. The applicant's assertion, according to the Attorney, rests upon an unfounded assumption that because the Review Board considered that the publication may appeal to particular segments of the community, it would not appeal to the broader community. Even if the applicant could properly argue that one could extrapolate, from the Review Board's actual finding as to particular sections of the community, a negative finding as to the community generally, such a finding would only further support the Review Board having complied with the requirement in subs 11(d) that it consider the likely audience of the publications. The applicant's real complaint seems to be that the Review Board did not make some wider enquiry, outside a reading of the books themselves, on the question of educational merit and that it erred in law in not doing so; and that the persons or class of persons to or amongst whom each book is published or intended or likely to be published, is a matter required to be proved by evidence extraneous to the publications themselves ( Transport Publishing at 118 119 per Dixon CJ, Kitto and Taylor JJ) and that the Review Board erred in law in not seeking or considering such evidence. Second, I agree with the Attorney's submission that the applicant's complaint on the s 11(d) criterion lack of evidence extraneous to the publications themselves rests upon an oversimplification of the legislative context in which the High Court made the comment in Transport Publishing , that evidence was necessary on the question of 'the persons amongst whom the literature is distributed'. In my view, it was open to the Review Board to come to a conclusion on the subs 11(d) criterion without recourse to such extraneous evidence, and it made no error of law in not seeking or considering such evidence. It follows, in my view, that the applicant cannot succeed on this ground. The applicant submitted that the Review Board could not lawfully make the decisions it made unless it concluded, having taken into account the matters specified in subs 11(b) and 11(d) of the Act, that the books incited or promoted in matters of crime or violence. If, contrary to the applicant's submissions, the Review Board did take into account the educational merit of the books, it did so without considering evidence upon which it could reasonably have been satisfied on that question, the applicant submitted. The only evidence the Review Board considered was the content of the books themselves. That could not inform an assessment of educational merit. Rather the assessment it informed was accurately stated by the Review Board: it was an assessment of discernible educational merit.


case_text: Commonwealth legislation describes a matter in general words, according to the applicant it is presumed that the meaning of the words is confined to Australia (per Dixon J in Wanganui-Rangitiki Electric Power Board v Australian Mutual Provident Society [1934] HCA 3 ; (1934) 50 CLR 581 at 601. See also Pearce D and Geddes R, Statutory Interpretation in Australia (Butterworths, 2006) at [5.8]). That presumption is reinforced by subs 21(l)(b) of the Acts Interpretation Act 1901 (Cth) which provides: 'In any Act, unless the contrary intention appears: ... (b) references to localities jurisdictions and other matters and things shall be construed as references to such localities jurisdictions and other matters and things in and of the Commonwealth.'


case_text: support of its submission that a publication does not incite in matters of crime or violence unless the publication had an effect of the kind in (ii) of [23] above, the applicant referred to what was said by the New South Wales Administrative Decisions Tribunal ('the Tribunal') in a case under the Anti-Discrimination Act 1977 (NSW): Western Aboriginal Legal Service Limited v Jones [2000] NSWADT 102. One of the issues that arose in the case was the meaning of 'incite' in s 20C of the Anti-Discrimination Act . The Tribunal accepted that the proper approach was to look at the Macquarie Dictionary definition of 'incite' and to give the word its ordinary and natural meaning. The Attorney submitted that in Western Aboriginal Legal Service Limited v Jones , the Tribunal considered the meaning of the word 'incite' in a different statutory context to that at issue in this case. Section 20C(1) of the Anti-Discrimination Act declares it 'unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group'. The primary issue for the Tribunal was whether the word 'incite' incorporated an intent element. As the applicant acknowledges in [79] of its written submissions, having considered that the 'ordinary meaning' of 'incite' was unclear, the Tribunal had regard to extrinsic materials in order to properly define it in the particular context of s 20C(1) , including the Second Reading Speech and a report by the New South Wales Law Reform Commission on its review of the Act (at [86] [87], [89]).


case_text: 11(d) of the Act requires the Review Board to consider the persons or class of persons to or amongst whom material is published or is intended or likely to be published. Contrary to the applicant's submission that the Review Board did not take this consideration into account, the Attorney submitted that the Review Board found that both books 'may appeal to some disenfranchised segments of the community'. In the Review Board's opinion, the books were likely to find a market amongst this class of persons. Its expression of that opinion is indicative of consideration of the persons or class of persons to or amongst whom the books were intended or likely to be published. The applicant's assertion that the Review Board's comment is no more than 'a statement of the Board's view of the nature of the publication' is a semantic quibble of the type against which the High Court counselled in Wu Shan Liang v Minister for Immigration & Ethnic Affairs [1996] HCA 6 ; (1996) 185 CLR 259.


case_text: The applicants assert no legal right or any cause of action against the Insurers. But the want of a legal right or a cause of action is not a bar to the grant of declaratory relief. It is, nevertheless, necessary that declaratory relief be sought in respect of a real question that is not abstract or hypothetical. It must be directed to the determination of a legal controversy. Moreover the party seeking the relief must have a real interest in raising it: Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 139 ALR 663 per Lockhart J (Spender and Cooper JJ concurring) and authorities there cited.


case_text: The Full Court of the Supreme Court of South Australia took that general approach to a factual situation similar to the present in JN Taylor Holdings Ltd (In Liquidation) v Alan Bond (1993) 59 SASR 432. Plaintiff companies in liquidation sued three of their former directors alleging breaches of duty. The directors were insured in respect of any wrongful act committed in their capacity as directors. One of them was bankrupt and the other two had left the country. The trustee in bankruptcy had agreed to assign to the plaintiff companies the bankrupt defendant's right to indemnity under the policy subject to the consent of the insurer. The insurer denied liability to indemnify the directors. The plaintiffs sought leave to join the insurer as an additional defendant seeking a declaration that the insurer was obliged to indemnify the directors in respect of any judgment in favour of the plaintiff companies arising out of any wrongful act within the terms of the policy. On appeal the Full Court ordered the joinder of the insurers. Special leave to appeal against the decision was refused by the High Court. 38 Before referring to the judgment it should be noted that s 117 of the Bankruptcy Act 1966 (Cth) had some relevance to it. It is similar in its operation to s 562 of the Act. It provides: (1) Where: (a) a bankrupt is or was insured under a contract of insurance against liabilities to third parties; and (b) a liability against which he is or was so insured has been incurred (whether before or after he became a bankrupt), the right of the bankrupt to indemnity under the policy vests in the trustee and any amount received by the trustee from the insurer under the policy in respect of the liability shall, if the liability has not already been satisfied, be paid in full forthwith to the third party to whom it has been incurred. (2) Subsection (1) does not limit the rights of the third party in respect of any balance due to him after the payment referred to in that subsection has been made. (3) This section applies notwithstanding any agreement to the contrary, whether entered into before or after the commencement of this Act. 39 King CJ who wrote the principal judgment with which Prior and Perry JJ agreed, said of s 117 (at 437): By virtue of that section, if the trustee in bankruptcy were to obtain payment of moneys from the insurer in consequence of a judgment against the defendant directors, those moneys would not be divisible among the creditors but would be payable to the plaintiffs. In order to obtain satisfaction in that way, it might be necessary for the plaintiffs to make the non-bankrupt directors bankrupt and, having provided a proper indemnity for costs to the trustee in bankruptcy, to institute and prosecute in the trustee's name an action against the insurer. 44 JN Taylor Holdings 59 SASR 432 was distinguished by the Court of Appeal in Victoria in CE Heath Casualty and General Insurance Ltd v Pyramid Building Society (In Liquidation) (1997) 2 VR 256. In that case a building society in liquidation sued its former auditors for breaches of retainer and duty of care. The insurers were conducting the defence. However upon inquiry from the plaintiff, they neither admitted nor denied liability to indemnify the auditors. They declined to commit themselves about the interpretation of the policies so far as they provided for maximum amounts of cover. The plaintiff sought leave to join them as defendants and to seek declarations against them as to the application of their policies. The Court of Appeal allowed an appeal against an order at first instance granting leave to join them. The Court held there was no basis for the joinder under the Supreme Court Rules . The issues raised against the insurers were additional to those between the building society and the auditors. They depended upon discrete facts. The Court also rejected the proposed joinder on discretionary considerations. 48 These discretionary considerations distinguished the case that faced the Victorian Court of Appeal from the case before the South Australian Full Court and the case before this Court. As to the decision in JN Taylor Holdings 59 SASR 432, Ormiston J observed (at 270): ... I should state that I do not think that the mere fact that the disputant is the liquidator of a possible creditor of the insured can prevent that liquidator from raising the issue and seeking declaratory relief. I say that largely because that question has been raised and resolved in the JN Taylor case, from which leave to appeal to the High Court was refused. If the matter were not free from authority I confess I would have had the gravest doubt whether it was ordinarily appropriate to permit an outsider to seek from the court declaratory relief as to the meaning and effect of a contract between two parties who had not themselves raised any issue as to its meaning and effect and at least one of whom objected to the court's interfering in its private affairs. 49 Phillips JA did not suggest that JN Taylor Holdings 59 SASR 432 was wrongly decided. He referred to the rejection by King CJ of the view expressed at first instance that the plaintiffs did not have an interest sufficient to maintain the action for declaratory relief unless and until they succeeded in the action against the defendants. King CJ had characterised that as too narrow a view of the interest of the plaintiffs required to render the issue real rather than theoretical. Phillips JA said: That seems to me apt here, if I may say so. What is wanted in the plaintiff is a sufficient interest to render its claim to declaratory relief "real rather than theoretical" and if that be the test I think that it is probably satisfied. 51 In allowing the appeal the Full Court held that the action did not bring into issue any question concerning the insurance arrangements as the insurers had not declined indemnity. There was no arguable case for joinder. Accordingly, documents evidencing the insurance arrangements were unrelated to any matter in question on the pleadings and were not a proper subject for discovery. The JN Taylor Holdings 59 SASR 432 decision was distinguished on that basis. Cox J, who dissented in the result, agreed with Perry J that no arguable case for joining the defendant's insurer had been advanced. He said (at 22): The orders made in JN Taylor Holdings Ltd (In liq) v Bond (1993) 59 SASR 432 were exceptional, for the reasons that are explained in the judgment, and the case is clearly distinguishable. 52 Perry J described JN Taylor Holdings 59 SASR 432 as unusual "in that there were overlapping questions of fact". He referred to the insurer's denial of liability on the basis that the conduct of the defendant directors was such as to disentitle them to indemnity. The same conduct would need to be scrutinised to determine whether the plaintiffs' claim against the directors should succeed (at 37). He said (at 37): The decision in JN Taylor Holdings must be confined to its special facts, and in particular the fact that not only was there in that case a denial of liability on the part of the insurer, but the facts and circumstances relevant to the grounds upon which liability were denied were more or less co-extensive with the factual inquiry which would be necessary in order to dispose of the issues raided [sic] as between the parties in that case other than the insurer. That will not often be the case. More commonly, I would have thought any denial of liability on the part of the insurer will not involve the need to address questions of fact which are common to the questions arising in the context of the resolution of the claim against the insurer. He observed that the question whether there were any common questions of fact would depend upon what stand was ultimately taken by the insurer and the ground upon which at some stage it might be prompted to deny liability. 53 The Queensland Court of Appeal in Interchase Corporation Ltd (in liq) v FAI General Insurance Co Ltd [1998] 2 Qd R 301 by majority, declined to follow JN Taylor Holdings 59 SASR 432 . In that case Interchase Corporation commenced proceedings against valuers in connection with the development of a retail and commercial complex in Brisbane. It claimed to have lost about $60 million through a negligent valuation of the complex. FAI was the professional indemnity insurer of the valuers. FAI conducted the defence of the litigation for some time then declined indemnity. The valuers did not object to that decision and did not foreshadow any possibility of contesting it. Interchase then sought to join FAI as an additional defendant to obtain a declaration that it was liable to indemnify the valuers in respect of their liability to Interchase. A judge acceded to that application and an appeal from that decision was allowed by majority. The majority held in substance that convenience alone could not justify joinder of an additional defendant under the Rules of the Supreme Court. There was no controversy between the valuers and the insurer and therefore their rights inter se would not be determined in the action. The joinder would serve no useful purpose. 54 Byrne J referred to the judgment of King CJ in JN Taylor Holdings 59 SASR 432 and particularly his finding that the insurer if joined as a defendant would be bound in subsequent proceedings by the defendant directors or their trustee in bankruptcy by a declaration of liability and findings of fact. King CJ, as noted earlier, relied upon the decision of Jacobs J in Re Multi-Tech Services 30 SASR 218. However, according to Byrne J, Jacobs J, in the earlier case had assumed rather than decided that the additional party would be bound and did not consider whether the determination of an existing controversy between co-defendants was essential to a binding adjudication. 55 McPherson JA, who agreed with Byrne J, suggested that the more expansive Rules of Court relating to joinder of parties in South Australia might explain the decision in JN Taylor Holdings 59 SASR 432. He said (at 315): Plainly, a rule enabling a court to determine a question because it is "related to or connected with" any relief claimed in the existing cause or matter may be capable of justifying a joinder like that sought in this instance. It is, however, difficult to see how it would effectively solve the problem discussed by Byrne J in his reasons on this appeal of the binding effect (or lack of it) of the declaration which the plaintiff now wishes to claim against FAI, which is a question that was not explored in JN Taylor Holdings v Bond. 56 In dissent, Davies JA said (at 309): I accept that there would be no point in making the order for joinder if the declaration did not, in practice, effectively determine the issue of FAI's liability to the valuers as between those parties. But I do not think it is sufficient, for the joinder to lack utility, that it is not binding between those parties at law if, in its practical effect, it is. He agreed with Byrne J that Interchase and the valuers were not privies for the purposes of res judicata and issue estoppel. He also agreed that neither doctrine would operate to bind FAI and the valuers inter se in respect of that question. His Honour went on however to refer to the wider concept of estoppel enunciated in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589, a case in which admittedly there was mutuality. He said (at 310): There was mutuality in Anshun and their Honours in the joint judgment to which I have referred did not find the abuse of process test, as elucidated in some of the English cases, of great utility. However, abuse of process is a similar mechanism designed "to protect against 'the scandal of conflicting decisions'," which can achieve that protection where mutuality is absent as it is here. FAI and the valuers would have the full opportunity of contesting the question in respect of which the declaration was sought. Davies JA thought it would therefore be an abuse of process to permit either to litigate that question in subsequent proceedings. It followed that the declarations sought would effectively determine the question of FAI's liability to the valuers as between those parties. 58 I respectfully agree with the view expressed by Byrne J that the decision of Jacobs J in Multi-tech Services 30 SASR 218 does not seem to be authority for the proposition that an insurer joined as a co-defendant at the suit of a claimant against the insured, would be bound as between itself and the insured, by a declaration that it was liable to provide indemnity to the insured. There was no exposition by Jacobs J of any principle that would support that proposition. It is not necessary for me to decide the general question here. In my opinion the approach taken in JN Taylor 59 SASR 432 is supportable on a wider basis without reliance on a res judicata or issue estoppel. That wider basis was enunciated by Davies JA. In this respect I refer also to my review of the authorities relating to the general concept of abuse of process by relitigation in Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [59] [69]. I consider, as did Davies JA, that there is utility in a declaration against an insurer in circumstances such as the present. That factor however, while important, does not exhaust the discretionary considerations, particular to this case, to which I should have regard.


case_text: King CJ referred in his judgment to s 31 of the Supreme Court Act 1935 , which is similar in form and the same in substance as s 21 of the Federal Court Act. He enunciated the following propositions about the grant of declaratory relief: 1. That the jurisdiction to grant declaratory relief is very wide and judicial pronouncements appearing to restrict the circumstances in which such relief will be granted relate to the sound exercise of discretion rather than to jurisdiction. 2. It is not necessary that the plaintiff have a cause of action against the defendant. 3. There is no jurisdictional limit against the grant of declaratory relief. The Court's power to grant such relief "is only limited by its own discretion". 4. There may be circumstances which so contraindicate the exercise of the discretion in favour of the grant of declaratory relief that they would lead almost inevitably to the exercise of the discretion against the making of a declaration. 5. A declaration will not be made except in matters "which have a real legal context, and to the determination of which the Court's procedure is apt", citing Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation [1977] 1 NSWLR 43 at 61 (Hutley JA). 6. There must be some person who has a true interest in opposing the declaration. The question must not be purely theoretical. 7. If the determination of the question could not affect the plaintiff's legal rights or commercial or personal interests now or in the future the declaration would almost certainly be refused: citing Gardner v Dairy Industry Authority (1977) 52 ALJR 180 at 188 (Mason J). The principles so enunciated are, with respect, not contentious.


case_title: Gardner v Dairy Industry Authority (1977) 52 ALJR 180