Nationwide News Pty Ltd v Wills [1992] HCA 46 – PART 1

Summary of Judgements

This case concerned an article published by Nationwide News which, it was claimed, contravened s299(1)(d)(ii) of the Industrial Relations Act 1988 (Cth). This section prescribed that it was an offence to make statements calculated to bring the Industrial Relations Commission or a member of the Commission into disrepute. The legal argument here considered the Constitutional basis of the legislation and whether the section was valid.

Whilst all judges ultimately concluded that this section was not validly enacted, the majority (for these purposes) based this determination on an implied right to political communication whilst the minority considered the matter based on other areas of the Constitution. In order to place the discussion as to how the implied right was established and its nature in the next post, this post will consider the grounds relied upon in the alternative judgements.

In keeping with the purpose of my research, I shall attempt to also consider whether these judgements could/could not be applied in an argument concerning the expansion of copyright law in Australia.

1. Other Judgements

Chief Justice Mason held that s299 (1)(d)(ii) of the Industrial Relations Act 1988 (Cth) did not come within the express grant of power contained in s51 (xxxv) of the Constitution as it concerned the protection of the reputation of members of the Industrial Relations Commission. He held this to be outside the main purpose or objective of the section which is to provide for the conciliation and arbitration of industrial disputes. Had the law come within the main purpose of the provision of the Constitution, Mason considered that it would have been valid regardless of its impact.

Mason then went on to consider s51(xxxix) which concerns matters incidental to the exercise of power under the Constitution. In doing so he looked to the reasonableness of the connection between the law and the subject matter of the power. He held that reasonableness was a question of degree when considering the purpose of the law and the means by which it was sought to be achieved. In making such an assessment Mason held that adverse or extraordinary consequences could be considered, and in this case, the intrusion into freedom of expression was one such consequence to be examined.

Mason referred in particular to the case of Davis v The Commonwealth [1988] HCA 63 which concerned an attempt to legislate to prohibit the use of terms such as ‘200 years, 1788, 1988, 88’ to protect the Australian Bicentennial Commission. As there were countless situations where these terms could be used for legitimate purposes without creating prejudice for the Bicentennial Commission, the High Court held the legislation to be invalid. As Mason notes:

[16] ...the intrusion into freedom of expression was so great as to preclude the conclusion that the means adopted were reasonably and appropriately adapted to achieve ends that lay within the reach of the Constitutional power.

In this instance Mason held that as the Industrial Relations Act provided greater protection than the law of defamation and the law relating to criticism of the judiciary (contempt of court), that it was therefore not reasonably necessary:

[24] In deciding an issue of proportionality in the context of the incidental scope of a substantive legislative power, the Court must take account of and scrutinize with great anxiety the adverse impact, if any, of the impugned law on such a fundamental freedom as freedom of expression, particularly when that impact impairs freedom of expression in relation to public affairs and freedom to criticize public institutions. Recognition of the paramount importance of freedom of expression and criticism of public institutions has strongly influenced the formulation of the principles of the law of contempt. It is inevitable that recognition of that importance must govern the Court’s present decision on whether s299 (1)(d)(ii) has a relevant connection with the subject-matter of the legislative power. [25] It follows, that in my opinion, such a connection is absent and that the provision is not supported by s51(xxxv) and s51(xxxix).

In seeking to apply this judgement to an argument as to whether aspects of the Copyright Act 1968 (Cth) such as those that deal with digital rights management, for example, are beyond the main purpose and are not incidental to s.51 (xviii) of the Constitution, a number of difficulties arise.

According to Mason’ s analysis, the first step would be to determine the main purpose of the Constitutional grant of power and examine whether these aspects of the legislation could be held to be within that grant. As he notes at [10] many of the Constitutional powers are not truly purposive powers and in some instances, as here, it would be very difficult to determine what is the main object or purpose of the grant. Indeed other cases concerning the expansion of intellectual property with respect to circuit layouts and plant breeder’s rights have determined that there are essentially no limitations on the Commonwealths powers in this area. Without a phrase such as that provided in the United States Constitution with respect to copyright law, which refers to the ‘promotion of science and the useful arts’ and which makes a direct reference to the notion of protection being for ‘a limited time’, it seems unlikely that the High Court of Australia could go on to refer to the reasonableness of consequences on an incidental basis. Mason suggests that where a law is seen to come within the main purpose of the Constitutional grant of power, it is valid regardless of its impact.

Dawson J, similarly, did not find need to refer to an implied right of political communication in determining this case. He differed from Mason’s reasoning insomuch as to suggest that quite apart from s.51(xxxix), that each grant of power within the Constitution contained powers incidental to its operation. In a fact he distinguished between a matter incidental to the subject matter of a grant of power, holding this could be considered within the section itself; and a matter incidental to the exercise of power which he held to come within s51(xxxix) and to apply beyond merely the legislature to the judiciary and executive. He therefore focused on s.51(xxxv) in determining that the legislative provision was wholly invalid for failing to be within the express or incidental aspects of that grant. He also made some interesting observations with respect to the notion of reasonable proportionality as employed by Mason:

When a power is not purposive (and most of the powers in s51 are not) the ultimate question is not whether the law is reasonably adapted to the achievement of a purpose, but whether it has a sufficient operation upon – a sufficient connection with – something forming part of the subject-matter of the power... For that reason, the concept of reasonable proportionality is of limited assistance where purposive powers are not involved and the danger in employing it is that it invites the Court to act upon its view of the desirability of the impugned legislation rather than upon the connection of the legislation with the subject-matter of the legislative power.

This view would further undermine any argument that aspects of the Copyright Act 1988 (Cth) are invalid for lack of desirability or associated impacts.

Similarly McHugh did not base his decision on an implied right to political communication but rather focused on matters incidental to s51(xxxv). In doing so he made further comments with respect to interpretation of matters within s51 of the Constitution:

[12] Whenever any question arises as to whether a power conferred by s51 of the Constitution should be given a wide or narrow meaning, the settled doctrine of this Court is that it should be given the wider meaning unless something in the rest of the Constitution indicates, expressly or by implication, that the narrow meaning best carries out the overall purpose of the Constitution. .. [13] A law purporting to be passed under one of the paragraphs of s51 is valid if it is a law ‘with respect to’ one of the subjects enumerated in those paragraphs. Whether or not it is such a law is to be determined ‘by reference to the nature of the rights, duties, powers and privileges which it changes, regulates or abolishes’...

From this reasoning, it is again, difficult to see any clear Constitutional grounds on which the expansion of copyright law could be challenged. The argument that may arise, and which will be considered in detail in the next blog post, concerns the nature of the implied right to political communication and whether this implication lends itself to a more narrow reading of s51(xviii). Here one may find support for the suggestion that the expansion of copyright law alters the rights of the public, and limits the duties of copyright holders by increasing their powers, to such an extent that these amendments to the law should be struck down. From the outset this seems like a difficult argument to make. As noted already, the implied right to political communication is not an absolute right. There may also be additional support for copyright expansion from the external affairs power to be overcome in this rather difficult debate.