APLA Ltd v Legal Services Commissioner (NSW)

HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

APLA LIMITED & ORS  PLAINTIFFS

AND

LEGAL SERVICES COMMISSIONER OF NEW SOUTH
WALES & ANOR  DEFENDANTS

APLA Limited v Legal Services Commissioner (NSW)

[2005] HCA 44

1 September 2005
S202/2004

ORDER

Questions asked in the special case answered as follows:

(1)Q. Is Part 14 of the Regulation invalid in whole or in part by reason that it:

(a)impermissibly infringes the freedom of communication on political and governmental matters guaranteed by the Constitution;

(b)impermissibly infringes the requirements of Ch III of the Constitution and of the principle of the rule of law as given effect by the Constitution;

(c)impermissibly infringes the freedom of interstate intercourse or alternatively trade and commerce guaranteed by s 92 of the Constitution;

(d)exceeds the legislative powers of the State of New South Wales by virtue of the nature of its extra-territorial operation;

(e)exceeds any powers to make regulations under the Legal Profession Act, by virtue of the nature of its extra-territorial operation;

(f)is inconsistent with the rights, duties, remedies and jurisdiction conferred, regulated or provided for by:

(A)ss 39(2), 39B, 55A, 55B, 55D, and 78 of the Judiciary Act 1903 (Cth);

(B)Divisions 1 and 2 of Part III and Part IVA of the Federal Court of Australia Act 1976 (Cth);

(C)ss 52, 53(a), 74B, 74D, 75AD, 82, 86 and 87 of the Trade Practices Act 1974 (Cth);

(D)Parts II, IV, V and VI of the Safety, Rehabilitation and Compensation Act 1988 (Cth), together with Parts IV and IVA of the Administrative Appeals Tribunal Act 1975 (Cth);

(E)Parts 4, 6 and 7 of the Superannuation (Resolution of Complaints) Act 1993 (Cth), together with Parts 27 and 28 of the Superannuation Industry (Supervision) Act 1993 (Cth).

A.No.

(2)Q. If yes to any part of (1), does Part 14 of the Regulation validly prohibit:

(a)the First Plaintiff from publishing an advertisement in the form of Annexure A to the Amended Statement of Claim;

(b)the Second Plaintiff from publishing:

(i)an advertisement in the form of the three advertisements which are Annexure B to the Amended Statement of Claim;

(ii)on its website, material substantially in the form of the material contained in Annexures C and D to the Amended Statement of Claim;

(iii)a letter in the form of Annexure E to the Amended Statement of Claim to group members of the group on behalf of whom proceedings are brought in Federal Court proceedings N932 of 2001.

(c)the Third Plaintiff from publishing an advertisement in the form of Annexure F to the Amended Statement of Claim?

A.Does not arise.

(3)Q.       If yes to any part of (2), ought the declaratory relief sought in the Amended Statement of Claim be withheld in the discretion of the Court by reason of the facts set out in paragraph 17 in relation to the advertisements which the plaintiffs say they wish to publish but which have not in fact been published?

A.Does not arise.

Representation:

S J Gageler SC with J K Kirk and P K Cashman for the plaintiffs (instructed by Maurice Blackburn Cashman)

No appearance for the first defendant

M G Sexton SC, Solicitor-General for the State of New South Wales with M J Leeming for the second defendant (instructed by Crown Solicitor for New South Wales) at the hearing on 5 and 6 October 2004

M G Sexton SC, Solicitor-General for the State of New South Wales with A M Mitchelmore for the second defendant (instructed by Crown Solicitor for New South Wales) at the hearing on 7 December 2004

Interveners:

D M J Bennett QC, Solicitor-General of the Commonwealth with R G McHugh and B D O'Donnell intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

R J Meadows QC, Solicitor-General for the State of Western Australia with S J Wright intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for Western Australia)

C J Kourakis QC, Solicitor-General for the State of South Australia with J C Cox intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for South Australia) at the hearing on 5 and 6 October 2004

C J Kourakis QC, Solicitor-General for the State of South Australia with A Rao intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for South Australia) at the hearing on 7 December 2004

P M Tate SC, Solicitor-General for the State of Victoria with S G E McLeish intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

P D T Applegarth SC with G R Cooper intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Solicitor for Queensland)

J Basten QC with G J Williams and R A Pepper for Combined Community Legal Centres' Group NSW Inc and Redfern Legal Centre Ltd as amici curiae (instructed by Public Interest Advocacy Centre) at the hearing on 5 and 6 October 2004

J Basten QC with R A Pepper for Combined Community Legal Centres' Group NSW Inc and Redfern Legal Centre Ltd as amici curiae (instructed by Public Interest Advocacy Centre) at the hearing on 7 December 2004

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

APLA Limited v Legal Services Commissioner (NSW)

Constitutional law (Cth) – Legal profession – Advertising of legal services – Validity of the Legal Profession Regulation 2002 (NSW), Pt 14 ("the Regulations") which prohibits advertising of legal services relating to claims in respect of personal injuries.

Legal profession – Barristers and solicitors – Whether the Regulations are designed to restrict advertising which promotes the use of a particular barrister or solicitor or any barrister or solicitor.

Constitutional law (NSW) – Extra-territorial power of the State of New South Wales – Whether Regulations aimed at the advertising of legal services in New South Wales which also apply to advertising that takes place outside New South Wales are valid.

Constitutional law (Cth) – Implied freedom of communication on government or political matters – Whether the restriction on advertising legal services relating to claims in respect of personal injuries effectively burdens the implied freedom of communication on government or political matters – Whether the implied freedom extends to prevent burdens by State law on communications related to the operation of the courts provided for in Chapter III of the Constitution.

Constitutional law (Cth) – Chapter III – Rule of law – Whether Chapter III of the Constitution implicitly prohibits any law of the Commonwealth or of a State or Territory which effectively burdens the capacity of litigants or potential litigants to receive information and assistance as may be necessary for them to assert their legal rights and approach courts exercising federal jurisdiction – Whether the Constitution supports a freedom to receive advice or information about the possible exercise of judicial power.

Constitutional law (Cth) – s 92 – Freedom of interstate trade and commerce, and interstate intercourse – Distinction between interstate trade and commerce, and interstate intercourse – Whether, where a law burdens interstate intercourse that occurs in or in relation to interstate trade and commerce, it is the trade and commerce limb of s 92 which applies – Whether the restriction on advertising by the Regulations imposes a discriminatory burden of a protectionist kind on interstate trade and commerce – Whether any impediment to interstate intercourse imposed by the Regulations is greater than reasonably required to achieve the object of the Regulations.

Constitutional law (Cth) – s 109 – Inconsistency between certain Commonwealth Acts and the Regulations – Whether the Regulations impair or detract from a Commonwealth scheme of legislation and the rights, remedies and jurisdiction contained in such legislation.

Constitution, Ch III, ss 92, 109.
Legal Profession Act 1987 (NSW), ss 38J, 216.
Legal Profession Amendment (Personal Injury Advertising) Regulation 2003 (NSW).
Legal Profession Regulation 2002 (NSW), Pt 14.

1. GLEESON CJ AND HEYDON J.   The plaintiffs challenge the validity of regulations, made under the Legal Profession Act 1987 (NSW) ("the Legal Profession Act"), which prohibit the advertising of legal services relating to claims for damages, compensation, or other legal entitlements arising out of personal injuries. Such services are described compendiously in the regulations as "personal injury services". In Australia, as in the United States of America, the legal profession is organized and regulated primarily on a State or Territory basis, but such regulation must conform to the requirements of the Commonwealth Constitution[1]. The plaintiffs contend, on a number of grounds, that the New South Wales regulations are contrary to the Constitution and therefore invalid or, alternatively, are inconsistent with federal laws, and, by virtue of s 109 of the Constitution, are inoperative to the extent of the inconsistency.

   [1]See In re Primus 436 US 412 at 440 (1978) per Rehnquist J.

   The regulations

2. The regulations in question were made with effect from 23 May 2003. At the time, the Legal Profession Act, in s 38J, provided that a barrister or solicitor may advertise in any way that the barrister or solicitor thinks fit. That permission was qualified by reference to advertising that was false, misleading or deceptive, that contravened certain specified Commonwealth or State legislation, or that contravened any regulations made under the Legal Profession Act. Legislative removal of earlier professional restrictions on advertising by lawyers was partly related to National Competition Policy Agreements between the Commonwealth and the States. In 2002, however, New South Wales modified its policy on advertising by lawyers and, in Pt 14 of the Legal Profession Regulation 2002, made under the general regulation-making power contained in s 216 of the Legal Profession Act, imposed restrictions on the advertising by barristers or solicitors of personal injury services. Those restrictions were tightened by the Legal Profession Amendment (Personal Injury Advertising) Regulation 2003, also made under s 216 of the Legal Profession Act, which amended Pt 14, and which contains the provisions the subject of the present proceedings.

3. The Explanatory Note to the amending regulations of 2003 said: 

   "Existing provisions of the Legal Profession Regulation2002 place restrictions on the content and method of advertising by barristers and solicitors of personal injury services.

   The object of this Regulation is to broaden the current restrictions so as to prohibit a barrister or solicitor from publishing or causing or permitting publication of an advertisement that makes any reference to or depicts:

   (a)      personal injury, or

   (b)matters related to personal injury, such as an activity, event or circumstance that suggests personal injury or a cause of personal injury, or

   (c)legal services relating to the recovery of money for personal injury.

   Existing exceptions to advertising restrictions are retained and additional exceptions are provided for.

   A contravention of the new provisions will be an offence and will also constitute professional misconduct.

   The new provisions are not intended to prevent legitimate public comment in good faith about personal injury and are not intended to interfere with the delivery in good faith of legal education to the legal profession or the ordinary use of business cards or letterheads."

4. The principal operative provision of the new regulations is cl 139 which relevantly provides:

   "(1)A barrister or solicitor must not publish or cause or permit to be published an advertisement that includes any reference to or depiction of any of the following:

   (a)personal injury,

   (b)any circumstance in which personal injury might 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,

   (c)a personal injury legal service (that is, any legal service that relates to recovery of money, or any entitlement to recover money, in respect of personal injury).

   Maximum penalty:  10 penalty units.

   (2)A contravention of this clause by a barrister or solicitor is declared to be professional misconduct."

5. Clause 138 defines "advertisement" to mean any communication of information that advertises or otherwise promotes the availability or use of a barrister or solicitor to provide legal services, whether or not that is its only purpose or effect. The clause also contains a wide definition of "publish" which includes publication in the print media, broadcast by radio or television, and display on an Internet website. There are a number of exceptions to the prohibition in cl 139, but they are not presently relevant.

6. There was argument as to the meaning of the expression "a barrister or solicitor" in the above regulations.  For the reasons given by Gummow J, we agree that it means "any barrister or solicitor", and not merely some particular barrister or solicitor whose services are advertised or promoted.

7. In 2002, the Premier of New South Wales, in the New South Wales Parliament, made a Ministerial Statement which was accepted by the parties to these proceedings as indicating the general policy behind the 2002 regulations and the 2003 amendments.  The Statement was on the topic of "Public Liability Insurance Premiums".  It began: 

   "Mudgee Council was recently forced to cancel its annual Christmas carols because it could not afford the $5,000 public liability insurance premium.  The Hawkesbury River bridge-to-bridge waterskiing race was cancelled for the first time in 40 years for the same reason.  Public liability insurance premiums are causing serious difficulties for the community.  Small businesses and community groups are having difficulty obtaining affordable public liability insurance.  In addition to the problems with public liability, builders are having difficulty obtaining compulsory home warranty insurance, and professionals cannot obtain professional indemnity insurance."

8. The Premier referred to a number of causes of the problem, and possible solutions.  He went on: 

   "Today I am pleased to announce another sensible initiative aimed at pushing down the pressure on rising insurance costs.  I mentioned earlier that one of the many factors leading to rising costs is the increase in personal injury claims and the size of compensation payouts when those claims are contested.  The trend has been driven by an increasing trend towards litigation in our society.  Australia is adopting a culture of blame even when the damage suffered might be minor and temporary.  Elements in the legal profession have encouraged a view that someone else must always pay; that litigation is the way to resolve disputes.  All it does is increase costs for insurance customers and the wider community.

   So today I can announce that the Government is introducing restrictions on lawyers advertising for personal injury matters to take effect from 1 April.  I have discussed this with members of the Law Society of New South Wales and they are supportive of these changes.  I give them credit for that and I thank them for their sympathetic approach to the problem that this represents for the Government of New South Wales.  The rules that we propose will stop lawyers advertising personal injury services on television, on radio and in hospitals.  For example, patients and visitors will no longer see those offensive advertisements for lawyers in hospital lifts.

   The new rules will also restrict the kinds of statements that lawyers can make about personal injury work in printed advertisements or advertisements on the Internet.  The rules will prevent lawyers engaging in ambulance chasing advertising.  This advertising encourages people to claim for every slip and fall, regardless of the merits of the case or their genuine need for compensation.  The new rules will counteract the trend to excessive litigation which is evident in parts of our society.  On the broader question of public liability insurance the Government is holding discussions with the Insurance Council of Australia, the New South Wales Council of Social Service, arts and sporting organisations, small business and tourism operators and local government representatives."

9. Included in the materials put before the Court by the parties was a letter from the Attorney-General for New South Wales explaining the 2003 amendments: 

   "The [amendments were] made because the Government was concerned that lawyers were ignoring or circumventing the previous restrictions on personal injury advertising and that this could have a detrimental impact on the court system and on the availability of affordable public liability insurance."

10. For completeness, it should be added, although it is not of direct present relevance, that in December 2003, and in September 2004, the Legal Profession Act was amended by the inclusion in s 38J and s 38JA of regulation-making powers specifically related to advertising by legal practitioners. The regulations with which we are concerned were made before that legislation was enacted, but, subject to an argument about extra-territoriality, the plaintiffs do not contend that the regulations were not supported by the Legal Profession Act in the form it then took.

    The proceedings

11. The first plaintiff, whose name is an acronym for an association of plaintiffs' lawyers, is a company limited by guarantee, registered in New South Wales.  Its members are lawyers.  Its objectives include protecting and promoting the rights of the injured, and promoting proper and adequate compensation for injured people.  The second plaintiff is an incorporated legal practitioner registered under the Legal Practice Act 1996 (Vic), and carries on business as a firm of solicitors under the name "Maurice Blackburn Cashman" in Victoria, New South Wales and Queensland. The third plaintiff is a solicitor who practises in New South Wales as a sole practitioner.

12. The first defendant holds an office established under the Legal Profession Act and has functions which include enforcing regulations made under that Act. The second defendant is the State of New South Wales.

13. To their Further Amended Statement of Claim, the plaintiffs have annexed an advertisement which the first plaintiff wishes to place in the Sydney Yellow Pages directory and in various newspapers circulating within New South Wales.  The advertisement, directed to people who may have suffered personal injuries, offers the services of members of APLA.  The second plaintiff says that, in the past, it advertised, and wishes to continue advertising, in newspapers printed and circulating within New South Wales, in terms of a document annexed to the pleading.  The second plaintiff also has a website on the Internet, the material for which is uploaded onto a computer server in Victoria and can be downloaded in New South Wales, Queensland and elsewhere.  Documents illustrating the content of the material placed on the website are annexed to the pleading.  The second plaintiff also regularly acts as solicitor for group members in representative proceedings involving personal injuries, including proceedings under Pt IVA of the Federal Court of Australia Act 1976 (Cth). One such action involves claims under ss 52, 53(a), 74B, 74D, 75AD, 82 and 87 of the Trade Practices Act 1974 (Cth). The second plaintiff wishes to communicate with potential parties to such proceedings. The third plaintiff wishes to advertise in trade union journals circulating within New South Wales.

14. The plaintiffs claim that the regulations are invalid on the following grounds:

    1.They infringe the freedom of communication on political and governmental matters guaranteed by the Constitution.

    2.They infringe the requirements of Ch III of the Constitution and the principle of the rule of law as given effect by the Constitution.

    3.They infringe s 92 of the Constitution.

    4.Because of their extra-territorial operation they exceed the legislative powers of the State of New South Wales or they exceed the regulation-making powers in the Legal Profession Act.

    5.They are inconsistent with specified federal legislation.

15. The federal legislation referred to in the Further Amended Statement of Claim is:

    (a)the Judiciary Act 1903 (Cth), ss 39(2), 39B, 55A, 55B, 55D, and 78;

    (b)the Federal Court of Australia Act 1976 (Cth), Pt III Divs 1 and 2;

    (c)the Trade Practices Act 1974 (Cth), ss 52, 53(a), 74B, 74D, 75AD, 82, 86 and 87;

    (d)Parts II, IV, V and VI of the Safety, Rehabilitation and Compensation Act 1988 (Cth), together with Pts IV and IVA of the Administrative Appeals Tribunal Act 1975 (Cth);

    (e)Parts 4, 6 and 7 of the Superannuation (Resolution of Complaints) Act 1993 (Cth), together with Pts 27 and 28 of the Superannuation Industry (Supervision) Act 1993 (Cth).

16. Pursuant to O 35 r 1 of the High Court Rules 1952 (Cth) the parties have concurred in stating questions of law arising in the proceedings for the opinion of the Full Court.

17. The questions of law are as follows:

    "(1)Is Part 14 of the Regulation invalid in whole or in part by reason that it:

    (a)impermissibly infringes the freedom of communication on political and governmental matters guaranteed by the Constitution;

    (b)impermissibly infringes the requirements of Ch III of the Constitution and of the principle of the rule of law as given effect by the Constitution;

    (c)impermissibly infringes the freedom of interstate intercourse or alternatively trade and commerce guaranteed by s 92 of the Constitution;

    (d)exceeds the legislative powers of the State of New South Wales by virtue of the nature of its extra-territorial operation;

    (e)exceeds any powers to make regulations under the Legal Profession Act, by virtue of the nature of its extra-territorial operation;

    (f)is inconsistent with the rights, duties, remedies and jurisdiction conferred, regulated or provided for by:

    (A)ss 39(2), 39B, 55A, 55B, 55D, and 78 of the Judiciary Act1903 (Cth);

    (B)Divisions 1 and 2 of Part III and Part IVA of the Federal Court of Australia Act1976 (Cth);

    (C)ss 52, 53(a), 74B, 74D, 75AD, 82, 86 and 87 of the Trade Practices Act1974 (Cth);

    (D)Parts II, IV, V and VI of the Safety, Rehabilitation and Compensation Act1988 (Cth), together with Parts IV and IVA of the Administrative Appeals Tribunal Act1975 (Cth);

    (E)Parts 4, 6 and 7 of the Superannuation (Resolution of Complaints) Act1993 (Cth), together with Parts 27 and 28 of the Superannuation Industry (Supervision) Act1993 (Cth).

    (2)If yes to any part of (1), does Part 14 of the Regulation validly prohibit:

    (a)the First Plaintiff from publishing an advertisement in the form of Annexure A to the Amended Statement of Claim;

    (b)the Second Plaintiff from publishing:

    (i)an advertisement in the form of the three advertisements which are Annexure B to the Amended Statement of Claim;

    (ii)on its website, material substantially in the form of the material contained in Annexures C and D to the Amended Statement of Claim;

    (iii)a letter in the form of Annexure E to the Amended Statement of Claim to group members of the group on behalf of whom proceedings are brought in Federal Court proceedings N932 of 2001.

    (c)the Third Plaintiff from publishing an advertisement in the form of Annexure F to the Amended Statement of Claim?

    (3)If yes to any part of (2), ought the declaratory relief sought in the Amended Statement of Claim be withheld in the discretion of the Court by reason of the facts set out in paragraph 17 in relation to the advertisements which the plaintiffs say they wish to publish but which have not in fact been published?"

18. In relation to question (3), paragraph 17 of the Amended Special Case states that there is no pending prosecution and there are no pending disciplinary proceedings against any plaintiff under or in relation to the regulations and there is no current threat of any such prosecution or disciplinary proceedings save for such threat as may be implicit in a letter in which the first defendant expressed a view that certain proposed advertising by the first plaintiff would be contrary to the regulations.  If the regulations are invalid, in whole or in part, then there is no discretionary reason why this Court should not make a declaration to that effect.  It is unnecessary to say anything further about this point.

19. The advertising material and other matter referred to in question (2) is set out in the reasons of other members of the Court.  The questions asked about that material only arise if an affirmative answer is given to any part of question (1).

20. We shall deal with the issues raised by question (1) in the order in which they appear.  By way of general background, however, it is desirable briefly to expand upon the scheme of regulation of legal practice in Australia.

    The regulation of legal practice

21. Legal practitioners are admitted to practise by the Supreme Court of a State or Territory.  Each State or Territory has its own regulatory regime, commonly involving a principal statute[2] and rules made pursuant to that statute.  There is a substantial, and increasing, degree of uniformity and reciprocity in those regulatory regimes.  Generally speaking, the right to practise, and the right of audience in a State or Territory court, depends upon admission by a State or Territory Supreme Court and the holding of a current practising certificate.  Practising certificates, which must be renewed periodically, are normally issued by the Law Society or Bar Association of a State or Territory, although that pattern is not universal[3].  The detail of the requirements for obtaining a practising certificate is presently irrelevant.  Complaints against legal practitioners are dealt with pursuant to State or Territory legislation which establishes bodies with disciplinary powers.  In each State or Territory, the inherent power of the Supreme Court to discipline legal practitioners is preserved[4].  A legal practitioner is an officer of the Supreme Court of the State or Territory which admits that person to practise.  The Supreme Court maintains a roll of practitioners.  The Supreme Court holds out those whose names are on its roll of practitioners as fit and proper persons to be entrusted with the duties and responsibilities of a legal practitioner[5].

    [2]Legal Profession Act 1987 (NSW); Legal Practice Act 1996 (Vic); Legal Profession Act 2004 (Q); Legal Practice Act 2003 (WA); Legal Practitioners Act 1981 (SA); Legal Profession Act 1993 (Tas); Legal Practitioners Act 1970 (ACT); Legal Practitioners Act (NT). The Legal Profession Act 2004 (NSW) and the Legal Profession Act 2004 (Vic) each received Royal Assent following conclusion of oral argument in this case. These reasons refer to the statutes in force at the relevant time.

    [3]cf Legal Practitioners Act 1981 (SA), s 16; Legal Practice Act 2003 (WA), s 39.

    [4]Legal Profession Act 1987 (NSW), s 171M; Legal Practice Act 1996 (Vic), s 172; Legal Profession Act 2004 (Q), s 579; Legal Practice Act 2003 (WA), s 161; Legal Practitioners Act 1981 (SA), s 89(3); Legal Profession Act 1993 (Tas), s 93; Legal Practitioners Act 1970 (ACT), s 73; Legal Practitioners Act (NT), s 52(3).

    [5]A Solicitor v Law Society of New South Wales (2004) 216 CLR 253.

22. This Court is described in the Constitution as the Federal Supreme Court[6], but it does not admit people to practise as legal practitioners. Section 86 of the Judiciary Act 1903 (Cth) ("the Judiciary Act") envisages the possibility of Rules of the High Court providing for the admission of persons to practise as barristers or solicitors in any federal court. There are no such rules. Rather the Judiciary Act, in ss 55B and 55C, accommodates the State and Territory based scheme of admission and regulation in the following manner. Section 55B(1) provides that, subject to s 55B(3), a person who is for the time being entitled to practise as a barrister or solicitor or both in the Supreme Court of a State or Territory has the like entitlement to practise in any federal court. Section 55B(3) provides that such entitlement depends upon a person's name appearing in the Register of Practitioners kept in accordance with s 55C. Section 55C requires that a Register of Practitioners shall be kept at the Registry of the High Court. It is to be kept by the Chief Executive and Principal Registrar of the High Court. Entry in the Register is determined by reference back to s 55B, which, in effect, means entitlement to practise in the Supreme Court of a State or Territory. Section 55B(4) provides that a person who is entitled to practise in a federal court has a right of audience in any State or Territory court exercising federal or "federal-type" jurisdiction. Section 55C(5) empowers the High Court to order that the name of a person be struck off the Register of Practitioners if it is proved to the satisfaction of the Court that the person has been guilty of conduct that justifies that course.

    [6]Constitution, s 71.

23. Moves towards uniformity and reciprocity have resulted in what is described as a national legal profession. A State and Territory based system of admission and regulation operates in a practical environment that includes national law firms, individuals with Australia-wide legal practices, an expanding federal court system, and the exercise by State and Territory courts of federal or "federal-type" jurisdiction. In that context, if one State, such as New South Wales, decides to regulate legal practice in a certain respect, it is likely, and perhaps inevitable, that such regulation will have consequences for the conduct of disputes involving the exercise, or potential exercise, of federal judicial power. The Legal Profession Act contains provisions which prohibit a person who does not hold a current practising certificate from acting as a barrister or solicitor, which subject practice as a barrister or solicitor to the barristers or solicitors rules, and which, directly or indirectly, govern, in a variety of ways, the conduct of barristers and solicitors in and out of court[7]. The entire system of State regulation of the provision of services which include representing people in courts exercising federal jurisdiction, a system that has operated since the time of Federation, assumes that such regulation is not of itself inconsistent with the Constitution or with federal law. Whether such inconsistency exists in the present case is a question to be decided, but it is important to keep the question in perspective. State regulations which restrict certain forms of advertising by legal practitioners operate in a wider regulatory context that governs the provision of legal services.

    [7]Legal Profession Act 1987 (NSW), ss 38G, 38H, 38I, 38K, 38L, 48B, 48C.

24. Any State regulation of the provision of legal services is likely to have an effect upon the supply of services in relation to rights and obligations under federal law, or claims brought in courts exercising federal jurisdiction.  Whatever system exists in relation to the structure, organization and regulation of the legal profession, it forms part of the context in which federal laws operate, and in which the judicial power of the Commonwealth is exercised.

25. Regulation of the supply of legal professional services has always included, and continues to include, self-regulation, reinforced by the supervisory role of the State and Territory Supreme Courts, of which legal practitioners are officers, and which maintain the rolls of practitioners. Historically, being "struck off" a Supreme Court's roll of practitioners was the ultimate sanction for professional misconduct. Professional misconduct was conduct that would reasonably be regarded as disgraceful or dishonourable by members of the profession of good repute and competency[8].  The status of legal practitioners as officers of a court, developing and maintaining, in co-operation with the judiciary, their own standards of conduct, and owing their right to practise to the court's continuing willingness to hold them out as fit and proper persons, is a system of professional accreditation that has applied in Australia since colonial times[9].  The profession's own standards of behaviour are not immutable, and have been influenced or overridden in certain respects by legislation.  One such respect concerns the matter of advertising.  In A History of the New South Wales Bar, published in 1969, and produced by a committee chaired by Sir Victor Windeyer, it is said[10]:  "The Council from its inception was much concerned with questions of advertising; it being fundamental to the Bar's code of ethics that all forms of personal advertisement be prohibited."  Solicitors also had a long history of discountenancing "anything which may reasonably be regarded as touting [or] advertising"[11]. Legislation at a State and Territory level, in relatively recent times, has intervened to override those professional standards. The previous existence of those standards explains the need for s 38J of the Legal Profession Act. Evidently, the New South Wales legislature has had second thoughts. Whatever the policy merits of these changes to the regulatory environment in which lawyers practise, the restraints on conduct effected by the regulations in issue in this case are not significantly different from restraints that applied by virtue of professional self-regulation throughout most of the twentieth century. All that is new is the limitation of those restraints to personal injury services.

    [8]Myers v Elman [1940] AC 282 at 288-289.

    [9]The operation of the system in New South Wales was examined in A Solicitor v Law Society of New South Wales (2004) 216 CLR 253.

    [10]Bennett (ed), A History of the New South Wales Bar, (1969) at 170.

    [11]Cordery on Solicitors, 5th ed (1961) at 436, quoting Solicitors' Practice Rules 1936 (UK). See also Solicitor's Practice Regulation 1940 (NSW), reg 29(2), made pursuant to the Legal Practitioners Act 1898 (NSW); Atkins, The New South Wales Solicitor's Manual, 3rd ed (1975) at 159, 226-237.

    Freedom of communication on government or political matters

26. Restrictions on the advertising of goods and services limit freedom of communication.  Such restrictions are not unfamiliar.  Advertising of tobacco[12], therapeutic goods[13] and films of certain kinds[14], for example, is restricted by Commonwealth legislation.  In Cunliffe v The Commonwealth[15], this Court upheld the validity of restrictions imposed by the Migration Act 1958 (Cth) upon the giving of immigration assistance to aliens or the making of representations on their behalf, and rejected an argument that those restrictions infringed the implied freedom of communication on government and political matters which results from the requirements of the system of representative government established by the Constitution. The restrictions in question included a restriction on advertising services by way of immigration assistance.

    [12]Tobacco Advertising Prohibition Act 1992 (Cth).

    [13]Therapeutic Goods Act 1989 (Cth), Ch 5, Pt 5-1.

    [14]Classification (Publications, Films and Computer Games) Act 1995 (Cth).

    [15](1994) 182 CLR 272.

27. The freedom of communication relevant to this case was said, in Lange v Australian Broadcasting Corporation[16], to be a requirement of freedom of communication imposed by ss 7, 24 and 64 and 128 of the Constitution. The source of that requirement throws light on the content of the expression "freedom of communication about government or political matters", which was the expression used in the following sentence in Lange.  The meaning of that expression is imprecise[17]. Even so, we are concerned with a freedom that arises by necessary implication from the system of responsible and representative government set up by the Constitution, not a general freedom of communication of the kind protected by the First Amendment to the United States Constitution[18].  The nature and extent of the freedom is governed by the necessity which requires it.  For a law to infringe the freedom it must effectively burden that freedom either in its terms, operation or effect[19].

    [16](1997) 189 CLR 520 at 567.

    [17]Coleman v Power (2004) 78 ALJR 1166 at 1173 [28]; 209 ALR 182 at 191.

    [18]Coleman v Power (2004) 78 ALJR 1166 at 1184 [89]; 209 ALR 182 at 206.

    [19]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567.

28. The possibility that an advertisement of the kind prohibited by the regulations might mention some political or governmental issue, or might name some politician, does not mean that the regulations infringe the constitutional requirement.  The regulations do not, in their terms, prohibit communications about government or political matters.  They prohibit communication between lawyers and people who, by hypothesis, are not their clients, aimed at encouraging the recipients of the communications to engage the services of lawyers.  Such communications are an essentially commercial activity[20].  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.

    [20]cf Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 124-125.

29. Restrictions on the marketing of legal services are not incompatible with a system of representative and responsible government, or with the requirements of ss 7, 24, 64 and 128 of the Constitution. If they were, such incompatibility has passed unnoticed for most of the time since Federation. The professional work of lawyers involves them in advising citizens about their legal rights and obligations, and helping them to enforce their rights. In recent years, legislatures decided that it was in the public interest that lawyers should be encouraged to adopt a more mercantile approach to the provision of their services. Some lawyers responded with enthusiasm. Authorities appear to have been surprised to discover that, when lawyers promote their services, litigation increases. Some lawyers may be aggrieved at the recent cooling of official mercantilist ardour. They are, however, drawing a long bow when they claim that restricting their capacity to advertise for business is incompatible with the requirements of responsible and representative government established by the Constitution.

    Chapter III and the rule of law

30. The rule of law is one of the assumptions upon which the Constitution is based[21]. It is an assumption upon which the Constitution depends for its efficacy. Chapter III of the Constitution, which confers and denies judicial power, in accordance with its express terms and its necessary implications, gives practical effect to that assumption[22].  The effective exercise of judicial power, and the maintenance of the rule of law, depend upon the providing of professional legal services so that citizens may know their rights and obligations, and have the capacity to invoke judicial power.  The regulations in question are not directed towards the providing by lawyers of services to their clients.  They are directed towards the marketing of their services by lawyers to people who, by hypothesis, are not their clients.

    [21]Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193 per Dixon J.

    [22]In re Judiciary and Navigation Acts (1921) 29 CLR 257.

31. The question for this Court is not whether the uninhibited promotion of legal services will increase what is sometimes described as access to justice.  There are policy arguments for and against allowing lawyers to advertise.  One argument in favour of such advertising is that it makes legal services more accessible to some citizens, and thereby increases awareness of rights and assists enforcement of rights.  We are concerned, however, not with such questions of policy, but with a legal question which is to be resolved, not as a matter of opinion or personal preference, but as a matter of judgment upon a defined issue.

32. State and Territory schemes of regulation of the legal profession form part of the context in which federal jurisdiction is exercised, and have an impact upon the practical circumstances in which the rule of law is maintained. Examples include the division of functions between barristers and solicitors, the recognition of senior counsel, and requirements of practical legal training and continuing legal education. The justification for such regulation is that it is in the public interest. The primary responsibility for deciding where the public interest lies is with the State and Territory legislatures. It is not self-evident that the public interest requires an unrestricted capacity on the part of lawyers to promote their services. More to the point, it is not required by the Constitution. It is a topic on which the Constitution has nothing to say in express terms. If it is said to be a matter of implication, then it is necessary to identify, with reasonable precision, the suggested implication. This has not been done.

33. There is nothing in the text or structure of the Constitution, or in the nature of judicial power, which requires that lawyers must be able to advertise their services. It may or may not be thought desirable, but it is not necessary.

34. The regulations in question do not impede communications between lawyers and their clients.  Nor do they restrain or inhibit the provision of legal services, or require lawyers to conceal their existence or their identities.  Professional directories, and telephone books, inform the public of the availability of legal services.

35. The effective exercise of the judicial power conferred by Ch III of the Constitution does not depend upon unrestricted communication between the public and anyone willing to provide advice or assistance in enforcing claims or rights. If it did, the laws which confer upon lawyers what amounts to a practical monopoly in the provision of legal services would be invalid. The practitioners who now complain that they cannot advertise as freely as they wish appear to overlook the fact that the regulatory system, of which the advertising restrictions are a part, imposes much wider restrictions on the providing of advice and assistance by people (who may or may not be lawyers) who are not legal practitioners. If Ch III required unrestricted communication, then people like the migration agents considered in Cunliffe[23] would also be able to advertise, and provide, legal services.

    [23](1994) 182 CLR 272.

    Section 92

36. The regulations should be understood as dealing with advertising in relation to the providing of legal services in New South Wales[24].  They are not aimed at interstate communications, and they certainly do not discriminate against them.  Even so, their effect would extend to advertising by way of interstate communications.  Indeed, if it were not so, evasion of the regulations, especially by means of electronic communications, would be simple.

    [24]Interpretation Act 1987 (NSW), s 12; Solomons v District Court of New South Wales (2002) 211 CLR 119 at 130 [9].

37. The form of question (1)(c) directs primary attention to that part of s 92 which concerns intercourse, and then to the part that concerns trade and commerce. The reasoning in Cole v Whitfield[25] denied that the guarantees of freedom of intercourse and of freedom of trade and commerce were co-extensive, raising the problem of where that leaves intercourse which is part of trade and commerce. In the present case, there being nothing discriminatory or protectionist about the regulations, if it is the test applicable to trade and commerce that operates then the argument for the plaintiffs clearly fails. It is unnecessary to decide whether, as the Commonwealth submitted, the provision of legal services for reward is trade and commerce. It is sufficient to accept the alternative submission that the promotion of legal services by way of paid advertising is trade and commerce for the purposes of s 92. The application to such trade and commerce of the Cole v Whitfield test does not lead to a conclusion of invalidity.

    [25](1988) 165 CLR 360.

38. The regulations would also prohibit advertising of legal services which may not be part of trade and commerce.  Communication is intercourse, and covers advertising which is not part of trade and commerce.  Let it be assumed that at least some of the advertising covered by the regulations is in that category.  The object of the regulations is not to impede interstate intercourse.  The test to be applied therefore is whether the impediment to such intercourse imposed by the regulations is greater than is reasonably required to achieve the object of the regulations[26].  The object of the regulations is to restrict the advertising of legal services to be provided in New South Wales.  That object can only be achieved by a general restriction on the advertising of such services.  The impediment to interstate intercourse is no greater than is reasonably required to achieve the object of the regulations.

    [26]AMS v AIF (1999) 199 CLR 160 at 178-180 [41]-[48], 232-233 [221].

39. This is not a case in which the application of one test would produce a result different from that produced by the application of another. The Commonwealth argued that where a law burdens interstate intercourse that occurs in or in relation to interstate trade or commerce, the trade and commerce limb of s 92 applies and the validity of the law is to be tested by reference to Cole v Whitfield.  This may be correct, but it is unnecessary to decide the point.

    Extra-territoriality

40. Questions (1)(d) and (e) refer to the extra-territorial operation of the regulations. The regulations are aimed at the advertising of legal services to be provided in New South Wales, but they apply to such advertising even if it takes place outside New South Wales, for example, on the Internet. It is the provision in New South Wales of the advertised services that provides the necessary connection, both with the regulation-making power conferred by s 216 of the Legal Profession Act and with the power of the State Parliament to make laws for the peace, order and good government of New South Wales. That power requires a relevant territorial connection but the test of relevance is to be applied liberally, and even a remote or general connection will suffice[27].  Here the connection is direct and substantial.

    [27]Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 at 22-26 [7]-[16].

    Inconsistency with federal legislation

41. The inconsistency relied upon by the plaintiffs for their argument based on s 109 of the Constitution was of the kind identified in Australian Mutual Provident Society v Goulden[28], that is to say, impairment of or detraction from a Commonwealth scheme of legislation, and of rights, remedies and jurisdiction confirmed by such legislation.

    [28](1986) 160 CLR 330.

42. Australian Mutual Provident Society v Goulden arose out of a claim that a life insurer's refusal to provide a certain disability benefit to a blind man upon the same terms and conditions as such a benefit would be provided to a person with unimpaired vision contravened State anti-discrimination legislation.  There was no material from which an actuary could determine how much more likely a blind person was to suffer an incapacitating occurrence than a person who was not blind[29].  This Court held that the State legislation, insofar as it required the insurer to take on the risk, was inconsistent with the Life Insurance Act 1945 (Cth) ("the Life Insurance Act").

    [29](1986) 160 CLR 330 at 331.

43. The Court noted that the Life Insurance Act was framed on the basis that it would operate in the context of local laws in the various States and Territories[30]. For example, at the time, State or Territory company laws governed corporate insurers. The same may be said of the federal laws relied on in this case in relation to the structure and regulation of the legal profession. However, the Court also pointed out that the Life Insurance Act made detailed provision for supervising and regulating the statutory funds of life insurers, such supervision and regulation being aimed at protecting policy holders. It said[31]: "Central to the practices of the insurance companies which the provisions of the Act are designed to regulate and control are the classification of risks and the setting of premiums." It would alter, impair or detract from the Commonwealth scheme of regulation if a registered life insurance company was prevented by State legislation from classifying different risks differently or from setting different premiums for different risks[32].  Discrimination in that sense is of the essence of life insurance.  If State anti-discrimination legislation prevented life insurers from differentiating between sick or disabled persons and others, then the federal scheme of regulation would be set at naught.  That was the context in which reference was made to impairment of a federal scheme of legislation.

    [30](1986) 160 CLR 330 at 335.

    [31](1986) 160 CLR 330 at 336.

    [32](1986) 160 CLR 330 at 337.

44. Preventing lawyers from advertising does not impair the federal legislation referred to in the case stated.  Indeed, most of the legislation was originally enacted at a time when restriction on advertising by lawyers was the generally accepted professional standard.  None of the federal legislation depends for its efficacy upon the unrestricted promotion of legal services.  The rights, powers, and jurisdictions created have full legal effect and operation regardless of whether, at any given time, the States or Territories permit or restrict advertising by lawyers.

45. The argument for the plaintiffs appears to be based upon the motive of the New South Wales Parliament, or of the regulation-making authority. That is irrelevant. If the regulations are inconsistent with federal legislation, then they are inoperative to the extent of the inconsistency. It does not matter why they were promulgated. If they are not inconsistent with federal legislation, then they are not inoperative. Again, it does not matter why they were promulgated. Inconsistency between a State law and a federal law does not spring from the political motives of the respective law-making authorities. Section 109 is concerned with inconsistency of laws, not inconsistency of political opinion. Different legislative policies might, or might not, result in inconsistent laws. There is nothing to show that restrictions on advertising by lawyers conflict with any federal legislative scheme. As has been noted, most of the federal laws in question were enacted at a time when such restrictions were normal.

    Conclusion

46. The questions should be answered as follows:

    (1) No.

    (2) Does not arise.

    (3) Does not arise.

47. McHUGH J. The ultimate issue in this case is whether the Legal Profession Regulation 2002 enacted under the Legal Profession Act 1987 (NSW) ("the Act") is contrary to the Constitution. Broadly, the Regulation prohibits barristers and solicitors from advertising their availability to perform legal work in respect of personal injury matters. The plaintiffs[33] and amici curiae contend that the prohibition offends the Constitution in several ways. They contend that it:

    .violates the implied freedom of political communication recognised in Lange v Australian Broadcasting Corporation[34];

    .violates an implied freedom of communication arising from Ch III of the Constitution;

    .offends the freedom of interstate trade, commerce and intercourse guaranteed by s 92; and

    .conflicts with federal legisation and is inoperative by reason of s 109.

    [33]APLA Limited (first plaintiff, then trading as "Australian Plaintiff Lawyers Association", now trading as the "Australian Lawyers Alliance"); Maurice Blackburn Cashman Pty Ltd (second plaintiff); and Robert Leslie Whyburn (third plaintiff).

    [34](1997) 189 CLR 520.

48. They also contend that the Regulation is invalid because it has an extra‑territorial operation and is not a law for the peace, welfare and good government of New South Wales.

49. The Regulation, in its relevant form[35], came into effect on 23 May 2003. Clause 139 provides:

    [35]Legal Profession Amendment (Personal Injury Advertising) Regulation 2003.

    "(1)A barrister or solicitor must not publish or cause or permit to be published an advertisement that includes any reference to or depiction of any of the following:

    (a)      personal injury,

    (b)any circumstance in which personal injury might 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,

    (c)a personal injury legal service (that is, any legal service that relates to recovery of money, or any entitlement to recover money, in respect of personal injury).

    Maximum penalty:  10 penalty units.

    (2)A contravention of this clause by a barrister or solicitor is declared to be professional misconduct.

    ..."

    Clause 138 defines "advertisement" as:

    "any communication of information ... that advertises or otherwise promotes the availability or use of a barrister or solicitor to provide legal services, whether or not that is its purpose or only purpose and whether or not that is its only effect."

50. There is an extensive definition of "publish".  It relevantly includes:

    "(a)     publish in a newspaper ...

    (d)      display on an Internet website ...

    (f)display on any document ... gratuitously sent or gratuitously delivered to any person ..."

51. Clause 140 contains a limited exception for advertising an accredited specialty.  It permits listings in a practitioner directory or the display of signs in a practitioner's office.

52. In my opinion, cl 139 is invalid because its object and its effect, as evinced by its terms and setting, is to reduce litigation in respect of personal injury in the courts including courts exercising federal jurisdiction. By necessary implication, Ch III of the Constitution prohibits the States from enacting such legislation. Because the invalid operation of cl 139 is not severable from the rest of the Regulation, that clause and the Regulation are invalid. Clause 139 is also invalid because it prevents litigants and potential litigants from obtaining information about their rights in respect of certain federal causes of action and about the legal practitioners who might provide appropriate advice and representation in respect of those rights. It therefore impairs the capacity of courts exercising federal jurisdiction to hear and determine "matters" that Ch III of the Constitution authorises. Consequently, it violates the principles that inhere in or underlie that Chapter of the Constitution.

    Construction

53. The federal Solicitor-General contends that in cll 139 and 140 the phrase "a barrister or solicitor" refers only to particular barristers or solicitors, and not to barristers or solicitors in a general sense[36]. Throughout its provisions, however, the Regulation employs the phrase, "barrister or solicitor", suggesting that it is directed to legal practitioners in general. Moreover, one object of the legislation was to reduce the number of personal injury suits. That object would not be served if the Regulation permitted general advertisements, enticing members of the public to find a lawyer. Given that neither the ordinary meaning of the words nor the legislative intent supports the limited construction for which the Solicitor-General contends, the broader construction is the preferable construction. Thus, the Regulation prohibits advertising with respect to personal injury services by any lawyer, and not just by the particular lawyer whose services are being promoted.

    [36]Transcript 6 October 2004.

54. The Solicitor-General also contends that a difference exists between advertising the availability of legal services and informing the public of their legal rights. He relies upon the word "availability" in the definition of "advertisement" in cl 138 to support the distinction. He contends that any publication that linked communication of legal rights in relation to personal injury with the availability of a barrister or solicitor to act in that connection would offend the Regulation but the mere communication of the existence of that right would not[37]. While it is true that the definition of advertising includes the promotion of the availability of a barrister or solicitor, the Solicitor-General's submission is inconsistent with cl 139(1)(b), which prevents the advertisement of "any circumstance in which personal injury might occur, or any activity, event or circumstance that suggests or could suggest the possibility of personal injury ...". This clause extends, for example, to the publication by Community Legal Centres of materials relating to domestic violence or sexual abuse.

    Alleged bases of invalidity

    [37]Transcript 6 October 2004.

    Freedom of communication

55. The plaintiffs make two submissions with respect to an implied freedom of communication. First, they contend that the type of communication prohibited by the Regulation falls within the protection of political and governmental communication recognised by this Court in Lange[38].  Second, they contend that Ch III contains an implied freedom of communication about legal rights, as distinct from government or political matters.

    The communications in question do not come within the Lange protection

    [38](1997) 189 CLR 520.

56. The extent to which communications concerning political and governmental matters are protected by the Australian Constitution can be understood only by reference to the provisions of the Constitution that give rise to the implied freedom. The protection is different in origin and scope from the protection afforded by the First Amendment to the Constitution of the United States. While the case law from that jurisdiction may sometimes provide useful illumination of the Australian freedom of communication doctrine, it does not assist in determining the scope of its protection in a case such as the present. That is because the protection of communications concerning government and political matters in Australia arises by necessary implication from the text of certain sections of the Constitution that do not mention speech or communication. It does not arise from any general notion of representative government or the value of freedom of expression or a constitutional declaration, as in the First Amendment, that "Congress shall make no law ... abridging the freedom of speech, or of the press".

57. The seminal case in Australia is Lange v Australian Broadcasting Corporation[39] where this Court defined the scope of the implied freedom for the purpose of the Australian Constitution. In the Court's unanimous judgment, it emphasised that the scope of the freedom from interference with communication is grounded in and consequently must be defined by particular provisions of the Constitution. It "is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution."[40]

    [39](1997) 189 CLR 520.

    [40]Langev Australian Broadcasting Corporation (1997) 189 CLR 520 at 561.

58. Since the decision of this Court in Coleman v Power[41], the test for determining whether a law infringes the freedom recognised in Lange is[42]:

    When a law of a State or federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution, two questions must be answered before the validity of the law can be determined. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people. If the first question is answered "yes" and the second is answered "no", the law is invalid.

    [41](2004) 78 ALJR 1166 at 1185 [92], [94], 1201 [196], 1203-1204 [211], 1207 [228]; 209 ALR 182 at 207-208, 229-230, 233, 238-239.

    [42](1997) 189 CLR 520 at 567-568.

59. The first question then is whether the communication falls within the protected area of communication.  That is, is it a communication concerning a government or political matter?  If the answer to that question is "No", then the question of whether the law is reasonably appropriate and adapted does not arise.

    The communications in question are not "political or governmental"

60. The plaintiffs provided the Court with a number of proposed publications concerning the provision of legal services by legal practitioners. The judgment of Callinan J refers to them in detail. It is unnecessary for me to set them out. The parties accepted that, if published, each publication would contravene the Regulation. But the plaintiffs contend that the communications concern political or governmental issues, are within Lange's protection and the Regulation cannot apply to them. One publication, for example, refers to efforts of "Premier Bob Carr and Senator Helen Coonan" to stop the recipient of the publication from accessing "legal rights to compensation for" injuries "at work, by a defective product or on defective premises"[43].  The plaintiffs contend that this communication and communications of this nature concern political or governmental matters.

    [43]See reasons of Callinan J at [432], where the publication is set out in full.

61. The freedom of political or governmental communication, identified in Lange, is tied to the specific provisions of the Constitution that deal with the requirement for free and direct elections of the Houses of Parliament, executive responsibility to Parliament and the referendum procedure for amending the Constitution. The freedom is necessary to give effect to the requirements of direct elections for the Senate and the House of Representatives in ss 7 and 24 respectively, the involvement of electors in a referendum under s 128, the exercise of executive power by Ministers who are members of the House of Representatives or Senate and thus responsible to the electorate under ss 62 and 64, the control of supply to the Executive by the Parliament in s 83 and the sittings of Parliament protected by parliamentary privilege under ss 6 and 49 of the Constitution.

62. These provisions of the Constitution necessarily imply a freedom from legislative, executive and common law interference for "[c]ommunications concerning political or government matters between the electors and the elected representatives, between the electors and the candidates for election and between the electors themselves"[44]. 

    [44]Langev Australian Broadcasting Corporation (1997) 189 CLR 520 at 560.

63. Lange refers to "political or government matters". But those words must be read in the context of the decision. That context leaves no doubt that the term "government" is used to describe acts and omissions of the kind that fall within Chs I, II and VIII of the Constitution. It refers to representative and responsible government. In a broad sense, "government" includes the actions of the judiciary as the third branch of government established by the Constitution. But the freedom of communication recognised by Lange does not include the exercise of the judicial power of the Commonwealth by courts invested with federal jurisdiction or, for that matter, the judicial power of the States.

64. Nothing in Lange or the subsequent decision of this Court in Coleman v Power[45] supports the proposition that the exercise of judicial power is within the freedom recognised by Lange.  Lange concerned the conduct of a politician.  Coleman concerned criticism of a police officer who was alleged to be corrupt.  That case was determined on the basis, conceded by the respondents[46], that the criticism was a communication on a political or governmental matter.  That concession was correct because the police officer was part of the Executive Government of Queensland[47].  But the mere fact that communications concerning the conduct of police officers are within the scope of the Lange freedom does not mean that communications concerning the courts or judges or the exercise of judicial power are also within the scope of that freedom.

    [45](2004) 78 ALJR 1166; 209 ALR 182.

    [46](2004) 78 ALJR 1166 at 1181 [78]; 209 ALR 182 at 202.

    [47](2004) 78 ALJR 1166 at 1182 [80]; 209 ALR 182 at 203.

65. There is a difference between a communication concerning legislative and executive acts or omissions concerned with the administration of justice and communications concerning that subject that do not involve, expressly or inferentially, acts or omissions of the legislature or the Executive Government.  Discussion of the appointment or removal of judges, the prosecution of offences, the withdrawal of charges, the provision of legal aid and the funding of courts, for example, are communications that attract the Lange freedom.  That is because they concern, expressly or inferentially, acts or omissions of the legislature or the Executive Government.  They do not lose the freedom recognised in Lange because they also deal with the administration of justice in federal jurisdiction.  However, communications concerning the results of cases or the reasoning or conduct of the judges who decide them are not ordinarily within the Lange freedom.  In some exceptional cases, they may be.  But when they are, it will be because in some way such communications also concern the acts or omissions of the legislature or the Executive Government.

66. The distinction between communications concerning the administration of justice that are within the Lange freedom and those that are not may sometimes appear to be artificial.  But it is a distinction that arises from the origins of the constitutional implication concerning freedom of communication on political and government matters.  The Lange freedom arises from the necessity to promote and protect representative and responsible government.  Because it arises by necessity, the freedom is limited to "the extent of the need."[48] Courts and judges and the exercise of judicial power are not themselves subjects that are involved in representative or responsible government in the constitutional sense. Accordingly, the advertisements that the Regulation prohibits are not themselves communications concerning government for the purpose of the freedom identified in Lange.

    [48]Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105 at 118 per Kitto J.

67. Nor are they communications concerning "political" matters in the sense referred to in Lange.  That term admits of no ready definition.  As Gleeson CJ remarked in Coleman v Power[49], in many cases "there may be a degree of artificiality involved in characterising conduct for the purpose of deciding whether a law, in its application to such conduct, imposes an impermissible burden upon the protected kind of communication."  It may be impossible to formulate an exhaustive definition of the term "political" for the purpose of the constitutional freedom.  Indeed, the plaintiffs did not attempt to do so.  But the methodology employed by the Court in Lange assists in determining whether a communication is "political" for the purposes of the Constitution.

    [49](2004) 78 ALJR 1166 at 1173 [28]; 209 ALR 182 at 191-192.

68. Lange confined the scope of freedom of communication by requiring a relationship of necessity between the provisions giving rise to the freedom and the communication to be protected.  The provisions that the Court identified as giving rise to an implied freedom of communication necessitate some level of communicative freedom in Australian society about matters relevant to executive responsibility and an informed electoral choice.  The ends required the means.  The requirement of necessity indicates that the communication must bear a close relationship to the Ch I, II and VIII sections from which the protection flows.

69. Reliance on the implied freedom, identified in Lange, requires the opposite approach to that involved when a party in the United States relies on the freedom conferred by the First Amendment to the United States Constitution[50].  In Australia, if the regulatory measure affecting the communication is otherwise within the power of the relevant State or federal government, it is the communicator who must establish the necessity of the communication.  A State or federal government whose regulatory measure is impugned is not required to demonstrate the necessity of the measure that burdens the communication.

    [50]For example, Central Hudson Gas v Public Service Commission 447 US 557 at 561-566 (1980) where the Supreme Court laid down a four part test for the valid regulation of commercial speech. The fourth limb is a requirement that the regulation be "not more extensive than is necessary" to serve the government interest.

70. 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[51].  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.

    [51]Transcript 6 October 2004.

71. Accordingly, although cl 139 cannot apply to part of one advertisement, it can apply to the rest of the advertisement, which contravenes the terms of the Regulation. The remaining communications – which are set out in the judgment of Callinan J – are not concerned with government or political matters.

    The communications fall within an implied freedom of communication arising from Ch III of the Constitution

72. The plaintiffs contended that Ch III of the Constitution contains an implied freedom that they defined as follows[52]:

    "Chapter III, in particular sections 71, 73, 75, 76 and 77, requires for its effective operation that the people of the Commonwealth have the capacity, ability or freedom to ascertain their legal rights and to assert those legal rights before the courts there mentioned. The effective operation of that capacity, ability or freedom requires that they have the capacity or ability or freedom to communicate and particularly to receive such information or assistance as they may reasonably require for that to occur.

    The prohibition, in our submission, is one that extends to any law of the Commonwealth or of a State that burdens the assertion of legal rights before the courts, including the correlative communication to which we have referred, and does not – and here we adopt the formulation of Justice Deane in a section 92 context adopted by three members of this Court in AMS v AIF – go beyond what is necessary or appropriate and adapted for the preservation of an ordered society or the protection or vindication of legitimate claims of individuals in an ordered society."

    [52]Transcript 6 October 2004.

73. Just as the particular provisions of Chs I, II and VIII give rise to certain implications, so too does Ch III – which deals with the federal judiciary and federal jurisdiction. In Ch III, those implications provide a shield against any legislative forays that would harm or impair the nature, quality and effects of federal jurisdiction and the exercise of federal judicial power conferred or invested by the Constitution or laws of the Parliament of the Commonwealth.

74. In Quick and Garran's great work on the Constitution[53], the learned authors said:

    "As there is no necessity for specially declaring that the privileges and immunities of the people of the Commonwealth may not be abridged by the States, so there is no necessity for specifying any procedure by which they may be enforced. They may be described as self-executing. Every privilege or immunity conferred by the Constitution implies a prohibition against anything inconsistent with the free exercise or enjoyment thereof. Any law passed by a State, in violation of any constitutional privilege or immunity, would be null and void; the courts would not enforce it."

    [53]The Annotated Constitution of the Australian Commonwealth (1901) at 959.

75. In an earlier passage, the authors gave examples of violations of these constitutional privileges and immunities.  In respect of federal courts, they said[54]:

    "The people of the Commonwealth having a right to sue in the Federal courts in the prosecution of causes specified by the Constitution, a State could not obstruct the citizens of other States in suing its own citizens in the Federal courts."

    [54]The Annotated Constitution of the Australian Commonwealth (1901) at 959.

76. Chapters I, II and III – in particular, ss 1, 61 and 71 – of the Constitution embody the doctrine of separation of powers[55]. Section 1 vests the legislative power of the Commonwealth in a Federal Parliament. Section 61 vests the executive power of the Commonwealth in the Queen and declares that it "is exercisable by the Governor-General as the Queen's representative". Section 71 declares that the judicial power of the Commonwealth shall be vested in "the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction."

    [55]Attorney-General of the Commonwealth of Australia v The Queen (1957) 95 CLR 529 at 537-538, 539-540; [1957] AC 288 at 311-312, 314-315.

77. The doctrine of separation of powers itself gives rise to certain implications. It follows irresistibly from the separation of legislative, executive and judicial functions and powers and the vesting of judicial power in the s 71 courts, for example, that the Parliament of the Commonwealth cannot usurp the judicial power of the Commonwealth by itself exercising that power. Nor can it legislate in any manner that would impair the investiture of judicial power in the courts specified in s 71 of the Constitution. Thus, the Parliament of the Commonwealth cannot usurp the judicial power of the Commonwealth by declaring that no federal court can release a person who is unlawfully detained under a federal law[56] or by enacting Bills of Attainder[57]. It need hardly be said that, if the Constitution prohibits the federal Parliament from usurping or interfering with the judicial power of the Commonwealth, it necessarily prohibits the States from doing so. Thus, the States, with or without the consent of the Parliament of the Commonwealth, cannot invest federal courts with jurisdiction[58]. 

    [56]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1.

    [57]Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 536 per Mason CJ, 648-649 per Dawson J, 686 per Toohey J, 721 per McHugh J.

    [58]Re Wakim; Ex parte McNally (1999) 198 CLR 511.

78. Nor can the States enact legislation that attempts to alter or interfere with the working of the federal judicial system set up by Ch III.  Thus, this Court held that Queensland could not legislate to refer questions or matters concerning Queensland to the Judicial Committee of the Privy Council[59]. That was because Ch III "enabled the Parliament by appropriate legislation to achieve the result that all of the matters mentioned in ss 75 and 76 of the Constitution (except possibly inter se questions) should be finally decided in this Court"[60]. The Queensland legislation was invalid because it was "designed to enable the decision of the Judicial Committee to be obtained on questions whose decision, by the Constitution and legislation enacted thereunder, is the responsibility of this Court"[61] (emphasis added).  Hence, the Queensland law infringed the judicial structure established by Ch III itself and the legislation passed in accordance with it.  Similarly, the States cannot enact legislation that compromises the institutional integrity of State courts that exercise or could exercise federal jurisdiction[62].  To permit the States to do so would infringe the principles upon which Ch III is built.

    [59]The Commonwealth v Queensland (1975) 134 CLR 298.

    [60]The Commonwealth v Queensland (1975) 134 CLR 298 at 314.

    [61]The Commonwealth v Queensland (1975) 134 CLR 298 at 315.

    [62]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

79. The plaintiffs pointed out that their advertisements and communications are not confined to matters of State law.  They concern "matters" that arise under federal law.  Indeed, one communication of the plaintiffs concerns representative proceedings in the Federal Court of Australia brought under Pt IVA of the Federal Court of Australia Act 1976 (Cth). Moreover, a cause of action which, when commenced, is in a State jurisdiction, may by reason of a later pleading or argument become a matter in federal jurisdiction[63].  Under the "autochthonous expedient"[64] of our Constitution, State courts may be invested with federal jurisdiction. That jurisdiction is not confined to determining federal causes of action in accordance with express grants of federal jurisdiction; it arises and transforms all causes of action being heard in a State court into causes of action in federal jurisdiction whenever, in the course of determining one of the causes of action, it is necessary to determine a federal issue. As a result, cl 139 prohibits advertisements concerning causes of action – "matters" – that involve or could involve the exercise of federal jurisdiction and the exercise of federal judicial power. Indeed, the argument for New South Wales candidly conceded that the Regulation was part of a package of legislative reforms whose object was to reduce litigation in respect of personal injury.

    [63]Austral Pacific Group Ltd (In liq) v Airservices Australia (2000) 203 CLR 136 at 142 [11], 153-155 [50]-[52].

    [64]R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 268.

80. So the questions of constitutional principle that arise in this part of the case are whether, consistently with Ch III, a State can legislate to reduce litigation in federal jurisdiction or legislate to impair the capacity or opportunity of a person to receive offers of legal assistance concerning the availability or enforcement of causes of action in federal jurisdiction.  In determining those questions, three subsidiary constitutional principles must be applied.  First, as The Commonwealth v Queensland[65] shows, in determining whether State legislation infringes the principles inhering in or the scheme of Ch III, it is proper to take into account not only that that Chapter permits the Parliament of the Commonwealth to legislate on certain subjects but also that it has done so. Hence, the existence of such legislation may not only raise a s 109 question but may provide a factum that gives content to the scheme of and the abstract principles that inhere in Ch III.  In The Commonwealth v Queensland, no s 109 question arose because there was no conflict between the Commonwealth laws prohibiting appeals to the Judicial Committee in respect of decisions made in federal jurisdiction and the Queensland law permitting matters concerning Queensland law to be referred to the Judicial Committee. However, the existence of the Commonwealth legislation was an important factor in this Court holding that the Queensland law violated the principles that underlie Ch III of the Constitution. Second, in determining whether legislation infringes a constitutional principle or prohibition, "[o]ne must look for the burden or restriction not only in the language of the legislation but in the operation of the legislation."[66]   It is therefore "necessary to examine the nature and quality of the restriction in the light of the known and proved economic social and other circumstances of its imposition and of the community in which it is imposed."[67]  To ignore the practical effect of the legislation would be "to reduce the constitutional prohibition to a legal formulation which may be readily circumvented."[68]  Third, in determining where a State can validly affect matters of federal concern, it is necessary to bear in mind that State legislative power[69]:

    "consists in the undefined residue of legislative power which remains after full effect is given to the provisions of the Constitution establishing the Commonwealth and arming it with the authority of a central government of enumerated powers. That means, after giving full effect not only to the grants of specific legislative powers but to all other provisions of the Constitution and the necessary consequences which flow from them." (emphasis added)

    [65](1975) 134 CLR 298.

    [66]North Eastern Dairy Co Ltd v Dairy Industry Authority of NSW (1975) 134 CLR 559 at 622 per Jacobs J.

    [67]North Eastern Dairy Co Ltd v Dairy Industry Authority of NSW (1975) 134 CLR 559 at 624 per Jacobs J.

    [68]North Eastern Dairy Co Ltd v Dairy Industry Authority of NSW (1975) 134 CLR 559 at 607 per Mason J.

    [69]In re Richard Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 at 530 per Dixon J.

465. This question also admits of one answer only, a negative one.  Dixon J in Broken Hill South Ltd v Commissioner of Taxation (NSW)[463] said this[464]:

     "[I]t is within the competence of the State legislature to make any fact, circumstance, occurrence or thing in or connected with the territory the occasion of the imposition upon any person concerned therein of a liability to taxation or of any other liability.  It is also within the competence of the legislature to base the imposition of liability on no more than the relation of the person to the territory.  The relation may consist in presence within the territory, residence, domicil, carrying on business there, or even remoter connections.  If a connection exists, it is for the legislature to decide how far it should go in the exercise of its powers."

     Recently, in Mobil Oil Australia Pty Ltd v Victoria[465] Gleeson CJ reiterated the liberality of the test of territorial legislative competence[466]:

     "The history, rationale and scope of territorial limitations on the legislative competence of State Parliaments was explained in Union Steamship Co of Australia Pty Ltd v King[467]. What was there described as a 'new dispensation' in s 2(1) of the Australia Act 1986 (Cth)[468] was said perhaps to do no more than recognise what had already resulted from judicial decisions.  Typical of such decisions was that of Gibbs J in Pearce v Florenca[469], who pointed out that a power to make laws for the peace, order and good government of a State is not limited to laws which operate or apply only to persons or events within the State.  Such a power requires a relevant territorial connection between the law and the State, but the test of relevance is to be applied liberally, and even a remote or general connection will suffice."

     [463](1937) 56 CLR 337.

     [464](1937) 56 CLR 337 at 375.

     [465](2002) 211 CLR 1.

     [466](2002) 211 CLR 1 at 22-23 [9].

     [467](1988) 166 CLR 1.

     [468]See also Australia Act 1986 (UK), s 2(1).

     [469](1976) 135 CLR 507 at 517-518.

466. The contested provisions here have much more than a remote or a general connexion with New South Wales.  Their concern is with those who do, or would seek to practise in the regulated professions, and who therefore owe special duties to the courts of New South Wales, of solicitors and barristers of that State.  The connexion is direct and close.  The plaintiffs' arguments with respect to invalidity on the basis of any excessive extra-territorial operation also fail.

     Do the contested provisions infringe Chapter III of the Constitution or the principle of the rule of law? (Question 1(b))

467. Question 1(b) asks whether the contested provisions infringe Ch III of the Constitution and "the principle of the rule of law as given effect by the Constitution".

468. There is no express provision of Ch III of the Constitution which in any way deals with, or even remotely touches upon advertising by lawyers (whether engaged in practice for profit or upon a non-profit basis) to solicit clients.

469. In construing Ch III of the Constitution, and in particular, in accepting invitations from parties before it to search for implications from the Chapter it is as well for this Court to keep these matters in mind. The objects of Ch III are essentially these and these only: to establish this Court as a Federal Supreme Court; to ensure the independence and security of tenure of federal judges; to define the original and appellate jurisdiction of this Court; to recognise and necessarily thereby to "constitutionalise" the continued existence of, the State Supreme Courts; to confine appeals to the Privy Council; to empower the Parliament to make laws conferring rights to proceed in federal matters in the State and other federal courts; and to entrench trial by jury for federal indictable offences. The provisions of Ch III are, on their face, ample, explicit, concrete and clear, complete, and not such as to necessitate amplification by implication or otherwise.  In Kable v Director of Public Prosecutions (NSW)[470] this Court took the view that legislation detracting from the integrity, independence and impartiality of the Supreme Court of New South Wales as a court invested with federal jurisdiction, was incompatible with Ch III. That was tantamount to a holding that there should be inferred from Ch III an implication that non-judicial powers of a particular kind could not be exercised by any court which might exercise federal jurisdiction. That seems to me, with respect, to require the drawing of a very long bow. I would be unwilling to stretch the bow any further, as the plaintiffs here seek to have the Court do. In an essay, "The Interpretation of a Constitution in a Modern Liberal Democracy"[471], Sir Anthony Mason  acknowledged, in citing the following passage from the Engineers case, that there is in this country a judicial history of hostility to the making of constitutional implications except on a very restricted footing[472]. 

     "The doctrine of 'implied prohibition' finds no place where the ordinary principles of construction are applied so as to discover in the actual terms of the instrument their expressed or necessarily implied meaning."

     Sir Anthony Mason went on, in the same essay, to say "implication is an essential and commonplace incident of orthodox interpretation"[473].  But that undoubtedly correct observation can, with respect, provide no foundation for a departure from the well-understood rules relating to implications, one of which has at least the same operation in statutory, and constitutional interpretation particularly, as in the interpretation of contracts as to which Mason J in Codelfa Construction Pty Ltd v State Rail Authority of NSW said[474]:

     "Accordingly, the courts have been at pains to emphasize that it is not enough that it is reasonable to imply a term; it must be necessary to do so to give business efficacy to the contract.  So in Heimann v The Commonwealth[475] Jordan CJ, citing Bell v Lever Brothers Ltd[476], stressed that in order to justify the importation of an implied term it is 'not sufficient that it would be reasonable to imply the term  ...  It must be clearly necessary'.  To the same effect are the comments of Bowen LJ in The Moorcock[477]; Lord Esher MR in Hamlyn & Co v Wood & Co[478]; Lord Wilberforce in Irwin[479]; Scrutton LJ in Reigate v Union Manufacturing Co (Ramsbottom)[480]." (emphasis added)

     [470](1996) 189 CLR 51.

     [471]Mason, "The Interpretation of a Constitution in a Modern Liberal Democracy", in Sampford and Preston (eds), Interpreting Constitutions, (1996) 13 at 24.

     [472]Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 155 per Knox CJ, Isaacs, Rich and Starke JJ.

     [473]Mason, "The Interpretation of a Constitution in a Modern Liberal Democracy", in Sampford and Preston (eds), Interpreting Constitutions, (1996) 13 at 25.

     [474](1982) 149 CLR 337 at 346.

     [475](1938) 38 SR (NSW) 691 at 695.

     [476][1932] AC 161 at 226.

     [477](1889) 14 PD 64 at 68.

     [478][1891] 2 QB 488 at 491-492.

     [479]Liverpool City Council v Irwin [1977] AC 239 at 256.

     [480][1918] 1 KB 592 at 605-606.

470. The particular, indeed rigorous, application of the "necessity rule" to the Australian Constitution is required by reason of a number of features unique to our Constitution and its composition: the prolonged and fully recorded debates and deliberations preceding it to which modern lawyers have ready access and which show clearly, in most instances, why proposals were adopted or discarded; the substantial public acceptance in Australia of the Constitution before its passage through the Parliament of the United Kingdom; its generally comprehensive and explicit language; the availability of one, and one only mechanism for its amendment, a referendum under s 128; the reluctance, in many referenda of the people of Australia to change it; and, despite the last its enduring efficacy.

471. A case of this kind, in which the question posed, among other things, as to the expansiveness of the power of the Court itself, and the impact of its decisions upon the respective polities of the Federation, is an occasion for especial caution and restraint.

472. In substance, the plaintiffs seek to set up in respect of Ch III an implication of the kind found by this Court in Lange.  When it came to the point they had even more difficulty in formulating the implication contended for and in defining the sorts of circumstances attracting its application, than the courts have had in the cases since Lange[481].  In the end, the plaintiffs put the matter extraordinarily broadly in this way:

     "Chapter III, in particular sections 71, 73, 75, 76 and 77, requires for its effective operation that the people of the Commonwealth have the capacity, ability or freedom to ascertain their legal rights and to assert those legal rights before the courts there mentioned. The effective operation of that capacity, ability or freedom requires that they have the capacity or ability or freedom to communicate and particularly to receive such information or assistance as they may reasonably require for that to occur.

     The prohibition ... is one that extends to any law of the Commonwealth or of a State that burdens the assertion of legal rights before the courts, including the correlative communication to which we have referred, and does not ... go beyond what is necessary or appropriate and adapted for the preservation of an ordered society or the protection or vindication of legitimate claims of individuals in an ordered society."

     [481]Coleman v Power (2004) 78 ALJR 1166; 209 ALR 182; Del Vecchio v Couchy [2002] QCA 9.

473. I cannot imagine that the prohibition of advertisements or letters of the kind proposed could in any way impair or inhibit the effective operation of Ch III of the Constitution. Restriction upon them does nothing to prevent the recognition and enforcement of rights under federal law or against the Commonwealth Executive. The contested provisions deal with a different topic, the banning or regulation of a particular form of advertising by particular people. They apply to barristers and solicitors only. Absent the prohibited communications the work of the courts will continue to be done in an uninhibited way and in the ordinary course. People with federal claims will remain free to pursue them and to engage whom they wish to do so on their behalf. The contested provisions do nothing to detract from the effective operation of Ch III of the Constitution. Their enactment is within the powers of New South Wales to make laws for the peace, order and good government of that State.

     Are the contested provisions inconsistent with various federal laws? (Question 1(f))

474. The plaintiffs argue that there are two categories of federal law, with which the contested provisions are in conflict, laws conferring substantive rights and remedies, and those that confer rights to legal representation. It follows, they say, that the contested provisions (which may not be sensibly read down) are invalid by reason of the operation of s 109[482] of the Constitution. They point first to ss 52, 75AD, 82 and 86 of the Trade Practices Act 1974 (Cth) ("the TPA"), and then to ss 39(2) and 39B of the Judiciary Act 1903 (Cth) and Divs 1 and 2 of Pt III of the Federal Court of Australia Act 1976 (Cth) ("the FCA").

     [482]Section 109 of the Constitution provides:

     "109     Inconsistency of laws

     When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid."

475. By ss 52(1) and 82(1) of the TPA the Commonwealth Parliament has legislated for a right of action for loss or damages caused by misleading or deceptive conduct. Section 75AD of the TPA creates a cause of action for "injuries" suffered because of a defect in goods supplied by a corporation. By s 86 the Commonwealth Parliament has conferred jurisdiction in the causes of action on the Federal Court, the Federal Magistrates Court and State courts within the limits of their own jurisdiction. The Federal Court is vested with all the powers and functions necessary to hear and determine them pursuant to Divs 1 and 2 of Pt III of the FCA. The causes of action created by the enactments referred to may be relied on in claims for damages for personal injury, as in the representative proceeding brought by the second plaintiff on behalf of Mr Darcy (see in particular s 75AD). The plaintiffs do accept however that the Commonwealth certainly did not intend to cover the field in relation to claims for personal injuries in State courts, or in relation to communications about claims for damages for personal injuries. They also accept that the federal laws are intended to operate in the setting of other laws, including State laws. Nonetheless, they argue that the contested provisions in their operation alter, impair or detract from the Commonwealth laws to which they have referred.

476. I have already identified what I consider to be the correct characterisation of the contested provisions.  That identification alone almost forecloses the plaintiffs' case based on inconsistency (s 109).  There is no federal law, let alone any federal law covering this field, of the, or, an aspect of, the advertising of legal services for or in personal injuries cases, or other cases in which personal injury or the threat or risk of it may be a factor, in New South Wales.

477. The notion that a restriction upon advertising by solicitors soliciting personally injured or other clients, alters, impairs or detracts from the pursuit of remedies made available under federal legislation is, I think, far-fetched.  People pursuing them are in no way impeded from doing so because lawyers may be subject to State rules about the way in which they may promote themselves or offer their services.  Indeed, a restrictive rule about advertising is much less likely to have an obstructive effect upon the making of federal claims, than a rule that the plaintiff must pay a filing fee, or that a plaintiff in a remote area must file his or her process in a metropolitan registry, or that in an action in a State court exercising federal jurisdiction, the rules of court may impose more onerous procedural obligations on plaintiffs than in a federal court.

478. The Commonwealth may well be able to legislate partially, or exhaustively if it wishes, for the advertising of federal causes of action, rights to pursue them, and rules relating to, legal practice in federal courts, and, arguably, in State courts exercising federal jurisdiction, but it has not done so here. 

479. The provisions of the TPA to which the plaintiffs point create causes of action. A rule about non-advertising cannot defeat, or indeed in any way even impinge upon those causes of action or remedies. And ss 39(2) and 39B(1A)(c) of the Judiciary Act, which do no more than invest federal jurisdiction in State courts and confer jurisdiction upon federal courts are similarly unaffected.  The functions of these courts will be unaffected by the proscription of relevant communications and their like.

480. There are some further points which are made, correctly in my opinion, by the Commonwealth.  The contested provisions do not inhibit communications between lawyers and their current clients.  Nor do they prevent prospective litigants from retaining lawyers.  The provisions do not prevent lawyers from advertising their services generally.  The contested provisions prohibit only the advertising of personal injury legal services by particular lawyers.  In no real sense does the prohibition render persons who may have rights enforceable in federal jurisdiction incapable of being informed about them.

481. The plaintiffs also say that ss 55A, 55B, 55D and 78 of the Judiciary Act are in conflict with the contested provisions. Section 78 of the Judiciary Act does no more than give litigants in all courts exercising federal jurisdiction the right to be represented by such legal practitioners as "by this Act or the laws and rules regulating the practice of those Courts respectively are permitted to appear therein". Representation is one thing, soliciting people to engage particular representation is another. Section 55A permits persons admitted to legal practice in the High Court to practise in any federal court. Section 55B entitles persons who are entitled to practise in the Supreme Court of any State or Territory to practise in any federal court (sub-s (1)), any courts of a State in relation to the exercise by that court of federal jurisdiction (sub-s (4)(a)), and in any court of any internal Territory in relation to the exercise of "federal-type jurisdiction" (sub-s (4)(b)). And s 55D has the effect of entitling persons on the roll of practitioners of the High Court, a State Supreme Court or a Territory Supreme Court to practise in any Territory that does not have a system of admitting practitioners to practice before that Territory's Supreme Court.

482. The plaintiffs further argue that ss 55A, 55B and 55D of the Judiciary Act have expressly provided the extent to which State/Territory law may affect their operation; relevantly, in creating a register of interstate practitioners under s 55B. That argument should be rejected. The entitlement to practise stated in ss 55A, 55B and 55D operates, as the Commonwealth submits, upon a range of legislative schemes which from time to time regulate the right to practise in State and Territory courts: the Commonwealth provisions are supplementary to or cumulative upon State laws regulating the legal profession. Furthermore, a right to practise is by no means the same as a right to advertise that a practitioner wishes to practise in a particular area.

483. Sections 55A, 55B and 55D of the Judiciary Act operate upon, and assume the existence of, the State and Territory laws regulating the legal profession.  Accordingly, provisions such as the contested provisions, which apply equally to State and federal matters, are not inconsistent with those Commonwealth provisions.

484. The same reasoning leads to the same conclusion with respect to the other Commonwealth enactments to which the plaintiffs point, the Safety, Rehabilitation and Compensation Act 1988 (Cth), the Administrative Appeals Tribunal Act 1975 (Cth), the Superannuation (Resolution of Complaints) Act 1993 (Cth) and the Superannuation Industry (Supervision) Act 1993 (Cth). None of the provisions of these refer to or relate directly or indirectly to advertising of services by lawyers. The contested provisions present no obstacles to their operation. Whether lawyers can or cannot communicate that they wish to undertake the pursuit of claims under these enactments does not alter, impair or detract from the operation or objects of them, or the pursuit of federal claims or rights to which they give rise.

485. The contested provisions pass both of the tests stated by Mason J in New South Wales v The Commonwealth and Carlton[483]:

     "[The 'alter, impair or detract from'] test may be applied so as to produce inconsistency in two ways.  It may appear that the legal operation of the two laws is such that the State law alters, impairs or detracts from rights and obligations created by the Commonwealth law.  Or it may appear that the State law alters, impairs or detracts from the object or purpose sought to be achieved by the Commonwealth law.  In each situation there is a case for saying that the intention underlying the Commonwealth law was that it should operate to the exclusion of any State law having that effect."

     [483](1983) 151 CLR 302 at 330.

486. That and other statements[484] indicate that a slight or marginal or insignificant impact of a State law upon a federal law will not give rise to a constitutional inconsistency.  The impact must be one of some significance and such as would have the effect, if the State law were valid, of precluding, overriding or rendering ineffective an actual exercise of federal jurisdiction[485].  But as I have said, I do not think that even a marginal impact is made here by the contested provisions.

     [484]Australian Mutual Provident Society v Goulden (1986) 160 CLR 330 at 339.

     [485]P v P (1994) 181 CLR 583 at 603.

487. I would answer the questions as follows.

     (1)Is Part 14 of the Regulation invalid in whole or in part by reason that it:

     (a)impermissibly infringes the freedom of communication on political and governmental matters guaranteed by the Constitution;

     No.

     (b)impermissibly infringes the requirements of Ch III of the Constitution and of the principle of the rule of law as given effect by the Constitution;

     No.

     (c)impermissibly infringes the freedom of interstate intercourse or alternatively trade and commerce guaranteed by s 92 of the Constitution;

     No.

     (d)exceeds the legislative powers of the State of New South Wales by virtue of the nature of its extra-territorial operation;

     No.

     (e)exceeds any powers to make regulations under the Legal Profession Act, by virtue of the nature of its extra-territorial operation;

     No.

     (f)is inconsistent with the rights, duties, remedies and jurisdiction conferred, regulated or provided for by:

     (A)ss 39(2), 39B, 55A, 55B, 55D, and 78 of the Judiciary Act 1903 (Cth);

     (B)Divisions 1 and 2 of Part III and Part IVA of the Federal Court of Australia Act 1976 (Cth);

     (C)ss 52, 53(a), 74B, 74D, 75AD, 82, 86 and 87 of the Trade Practices Act 1974 (Cth);

     (D)Parts II, IV, V and VI of the Safety, Rehabilitation and Compensation Act 1988 (Cth), together with Parts IV and IVA of the Administrative Appeals Tribunal Act 1975 (Cth);

     (E)Parts 4, 6 and 7 of the Superannuation (Resolution of Complaints) Act 1993 (Cth), together with Parts 27 and 28 of the Superannuation Industry (Supervision) Act 1993 (Cth).

     No.

     (2)If yes to any part of (1), does Part 14 of the Regulation validly prohibit:

     (a)the First Plaintiff from publishing an advertisement in the form of Annexure A to the Amended Statement of Claim;

     (b)the Second Plaintiff from publishing:

     (i)an advertisement in the form of the three advertisements which are Annexure B to the Amended Statement of Claim;

     (ii)on its website, material substantially in the form of the material contained in Annexures C and D to the Amended Statement of Claim;

     (iii)a letter in the form of Annexure E to the Amended Statement of Claim to group members of the group on behalf of whom proceedings are brought in Federal Court proceedings N932 of 2001.

     (c)the Third Plaintiff from publishing an advertisement in the form of Annexure F to the Amended Statement of Claim?

     Unnecessary to answer.

     (3)If yes to any part of (2), ought the declaratory relief sought in the Amended Statement of Claim be withheld in the discretion of the Court by reason of the facts set out in paragraph 17 in relation to the advertisements which the plaintiffs say they wish to publish but which have not in fact been published?

     Unnecessary to answer.

     There is no question of costs raised in the special case.  That issue should be determined by the Justice disposing of the action.