FEDERAL COURT OF AUSTRALIA

Sportodds Systems Pty Limited v State of New South Wales [2003] FCAFC 237

CONSTITUTIONAL LAW – Commonwealth Constitution – s 92 – freedom of interstate trade and intercourse – trade and intercourse between Western Australiaand New South Wales – licensed bookmaking – whether requirement that interstate bookmakers advertising in New South Wales stand at a licensed New South Wales racecourse breaches s 92

CONSTITUTIONAL LAW – Australian Capital Territory (Self-Government) Act 1988 (Cth) – s 69 – freedom of trade between Australian Capital Territory and the States – trade and intercourse between Australian Capital Territory and New South Wales – licensed bookmaking – whether requirement that interstate bookmakers advertising in New South Wales stand at a licensed New South Wales racecourse breaches s 69.

RELIEF – declarations – whether Court can make declarations in absence of relevant information – whether Court has obligation to inform itself

STATUTORY CONSTRUCTION – Acts Interpretation Act 1987 (NSW) s 31 – severance – reading down

Commonwealth Constitution ss 92, 109

Acts Interpretation Act 1901 (Cth) s 15A

Judiciary Act 1903 (Cth) s 64

Australian Capital Territory (Self-Government) Act 1988 (Cth) s 69

Racing Administration Act 1998 (NSW) ss 16, 17, 18, 19, 23, 24, 25, 26A, 27, 28, 29, 30, 31, 32, 33

Unlawful Gambling Act 1998 (NSW) ss 8, 9

Greyhound Racing Act 2002 (NSW) s 22

Harness Racing Act 2002 (NSW) s 25

Thoroughbred Racing Board Act 1996 (NSW) s 14A

Racing Legislation Amendment (Bookmakers) Act 2002 (NSW)

Interpretation Act 1987 (NSW) s 31

Gaming and Betting (Amendment) Act 1938 (NSW)

Race and Sports Bookmaking Act 2001 (ACT)

Racing Administration Regulation 1999 (NSW)

A. Raptis & Son v South Australia (1977) 138 CLR 346 cited

Australian Railways Union v The Victorian Railways Commissioners (1930) 44 CLR 319 cited

Barley Marketing Board for New South Wales v Norman (1990) 171 CLR 182 considered Bath v Alston Holdings (1988) 165 CLR 411 referred to

British American Tobacco Australia Ltd v Western Australia (2003) 200 ALR 403 discussed

Castlemaine Tooheys v South Australia (1990) 169 CLR 436 considered

Cole v Whitfield (1988) 165 CLR 360 discussed

Cunliffe v Commonwealth (1994) 182 CLR 272 considered

Director Public Prosecutions v Hutchinson [1990] 2 AC 783 cited

Egan v Willis (1998) 195 CLR 424 considered

Fittock v The Queen (2003) 197 ALR 1 referred to

Gerhardy v Brown (1985) 159 CLR 70 considered

Gould v Brown (1998) 193 CLR 346 cited

Harrington v Lowe (1996) 190 CLR 311 referred to

Logan Downs Pty Ltd v Federal Commissioner of Taxation (1965) 112 CLR 177 cited

Mansell v Beck (1956) 95 CLR 550 cited

Pidoto v Victoria (1943) 68 CLR 87 cited

R v Connare; Ex parte Wawn (1939) 61 CLR 596 cited

R v Martin; Ex parte Wawn (1939) 62 CLR 457 cited

Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 cited

Sportodds Systems Pty Ltd v State of New South Wales [2003] FCA 992 affirmed

The Queen v The Judges of the Federal Court of Australia; Ex parte Western Australian National Football League (1979) 143 CLR 190 followed

Williams v Keelty (2001) 111 FCR 175 referred to

Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 considered

D Pearce & S Argument, Delegated Legislation in Australia,2ndedn, Butterworths, Sydney, 1999

T Blackshield & G Williams, Australian Constitutional Law, 3rd edn, Federation Press, Sydney, 2002

SPORTODDS SYSTEMS PTY LIMITED v STATE OF NEW SOUTH WALES

N 1484 of 2003

BRANSON, HELY and SELWAY JJ

29 OCTOBER 2003

SYDNEY

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs of the appeal.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT

1                     The appellant appeals from the decision of the primary Judge in Sportodds Systems Pty Ltd v State of New South Wales [2003] FCA 992.  The appellant has requested that the Court expedite the hearing of this appeal and the Court has done so.  Two issues have been argued on the appeal.  The first, which may be described as the ‘severance’ issue, is whether the primary Judge was in error in declining to make a declaration that ss 28-33 of the Racing Administration Act 1998 (NSW)(‘the RAA’) were invalid, notwithstanding that he had accepted and held that some aspects of other statutory provisions forming part of the same statutory scheme, were invalid in their application to the appellant.  For the reasons set out below we are of the view that the primary Judge’s conclusions on this issue were correct.  The second, which may be described as the ‘free trade’ issue, is whether the primary Judge should nevertheless have made a declaration that ss 28-33 of the RAA were invalid because those sections imposed an invalid restraint on trade, commerce and intercourse between the States and/or between the Australian Capital Territory and the States.  For the reasons set out below we are of the view that the material and information before the Court is and was insufficient to enable the Court to determine whether or not those sections or any of them are invalid on the basis of the ‘free trade’ issue.  Consequently, the declaration sought on the basis of the ‘free trade’ issue could not have been granted.  The appeal is dismissed.

CONTEXT AND ISSUES

2                     The facts that were before the primary Judge were agreed between the parties.  Those facts are conveniently set out in the reasons of the primary Judge.  For present purposes they can be summarised even further.  The appellant is authorised by the laws of the Australian Capital Territory and of Western Australia to carry out internet betting.  It has premises in both the Australian Capital Territory and Western Australia from which it conducts its internet betting business.  It has no license or other authority, issued pursuant to the laws of New South Wales, to carry out a betting business.  It has some employees in New South Wales and (apparently) has some access to a licensed racecourse in New South Wales.  It has no authority or permission to conduct any betting business at a licensed racecourse in New South Wales.  The appellant wishes and intends to take bets over the internet on various sporting events forming part of the Rugby World Cup currently being held in Australia.  Those sporting events are declared ‘sports betting events’ pursuant to s 18 of the RAA.  The appellant wishes to advertise on the internet and in local newspapers that it will take bets on such events.  It will receive internet bets that are placed from computers situated in New South Wales.  Some of those bets may be expected to be placed in relation to rugby matches which are played in New South Wales.

3                     The applicable statutory provisions are also conveniently set out in the reasons of the primary Judge.  Under s 8 of the Unlawful Gambling Act 1998 (NSW) (‘the Gambling Act’)it is an offence to bet on an ‘event or contingency’ unless various conditions are met.  For present purposes there are two relevant conditions.  The first is that the bet must be made with a licensed bookmaker who is at a licensed racecourse: s 9 of the Gambling Act.  In order to be a licensed bookmaker at a licensed racecourse the person must:

(a)      hold a relevant authority from the controlling body of the relevant racing code (the Thoroughbred Racing Board, Harness Racing New South Wales and Greyhound Racing New South Wales): see s 26A(1)(a) of the RAA (it will be necessary to consider in more detail the power of the relevant controlling body to give that authority below); and

(b)      hold a relevant authority issued by the racing club conducting the event: see s 26A(1)(b) of the RAA; and

(c)      hold a ‘State bookmakers authority’ issued by the Bookmakers Revision Committee:  see s 26A(1)(c) of the RAA.

Additionally, where the bookmaker wishes to engage in sports betting, or to bet by electronic means, the bookmaker must also obtain an authority from the State Minister: see ss 16-17 and ss 18-23 of the RAA.  In each case the bookmaker must have a presence at a licensed racecourse:  see ss 16 and 19 of the RAA.

4                     Part 4 of the RAA (ss 27-33) deals generally with betting information and advertising.  It is these provisions that the appellant seeks to challenge, although the extent of the challenge is not altogether clear.  The Application seeks declarations that ss 28, 29, 30, 31 and 33 of the RAA are invalid.  The Statement of Claim alleges that the effect of ss 28-33 of the Act is to burden interstate trade in a discriminatory manner.  The Notice of Appeal claims that the primary Judge should have declared ss 28-33 invalid.  It is probably convenient to refer to the provisions generally as Part 4 of the RAA, given that ss 27 and 32 (the only two sections of Part 4 which may not be under challenge) would seem to be meaningless if the other provisions were held invalid.  The relevant provisions were usefully summarised by the primary Judge as follows:

‘In summary, s 29 prohibits a person from publishing betting information save in certain circumstances, including those prescribed by s 32(1), which permits a person authorised by the Minister to publish betting information whilst he/she, inter alia , is present on a licensed racecourse during a race meeting held there and that person was at the racecourse when it was lawful for betting to take place at a time he/she received the betting information. By its terms, the restriction in s 29 applies regardless of whether a person is licensed as a bookmaker (though note s 16).

Further, s 30 in essence prohibits the publication of advertising of the provision of betting information and betting services, again subject to exceptions. All materially relevant exceptions are conditioned upon a person being a licensed bookmaker; others are conditioned, in addition, to activities occurring or to occur at a particular location, namely an authorised betting auditorium (subss 2(c) and 2(e)) or a licensed racecourse (subss 2(a), 2(d) and 2(f)).

Further, subs 30(3) prohibits a person from providing by means of the internet or other on-line communications system any service that enables a person to access the gambling operations carried on by any person other than, inter alia, a licensed bookmaker.’

5                     For the purpose of the hearing before the primary Judge and for the purposes of this appeal the parties have proceeded on the basis that the effect of Part 4 of the RAA (and particularly s 30(2) and s 32(2)) is that the appellant can only advertise betting information and betting services if the appellant is a licensed bookmaker authorised by s 16 of the RAA to engage in electronic betting or if the appellant is authorised under s 32 of the RAA.  In the former case the appellant must be at a licensed race meeting when the bet is received; in the latter the relevant person must be at a licensed race meeting when the advertisement is published.  Having made this assumption certain additional issues were not explored.  These include not only the meaning of the words used in Part 4 of the RAA, but also constitutional issues such as the powers of the New South Wales Parliament to legislate in relation to actions occurring in other States and Territories by persons situated there and the consequences of the inconsistency of State laws.  It will be necessary to return later in these reasons to the effect and consequences of the assumption that the parties have made in their presentation of the case.

6                     The only potential constitutional issue of the sort identified in the preceding paragraph, that was explored before the primary Judge was an argument put by the appellant that the relevant laws of New South Wales were invalid in that they were inconsistent with the Race and Sports Bookmaking Act 2001 (ACT), a law made pursuant to the Australian Capital Territory (Self-Government) Act 1988 (Cth) (the ‘Self-Government Act’).  It was argued that that inconsistency had the result that the relevant laws were invalid pursuant to s 109 of the Constitution.  For this purpose it would seem to be necessary to treat a law made by a self-governing territory either as a ‘law of the Commonwealth’ or as a ‘factum’ upon which a law of the Commonwealth operates.  There are obvious difficulties in either course.  The issue was most recently argued before the High Court in Fittock v The Queen (2003) 197 ALR 1 where the majority of the Court left the question open, although Kirby J expressed the view that a Territory law is a ‘law of the Commonwealth’.  The primary Judge concluded that he did not need to resolve this question because it was ‘not sufficiently concrete’.  There has been no appeal from that conclusion.  We express no view in relation to whether a Territory law is a ‘law of the Commonwealth’. 

7                     As already mentioned, the controlling body of the relevant racing code has power to give relevant authorities for the purposes of s 26A(1)(a) of the RAA.  The power is contained respectively in s 22 of the Greyhound Racing Act 2002 (NSW)(‘the GRA’); s 25 of the Harness Racing Act 2002 (NSW)(‘the HRA’) and s 14A of the Thoroughbred Racing Board Act 1996 (NSW)(‘the TRB’) respectively.  These provisions are in the same terms so far as is relevant.  Section 14A of the TRB provides in part:

‘(1)    An application for a bookmaker licence may be made by:

         (a)     a natural person of or over the age of 18 years, or

         (b)     by a proprietary company.

…

(3)     For the purposes of this section an eligible company means a proprietary company that is taken to be registered in New South Wales for the purposes of the Corporations Act 2001 of the Commonwealth and in which:

         (a)     each director, shareholder and person concerned in the management of the company is of or over the age of 18 years, and

         (b)     each director is licensed as an individual as a bookmaker under this Act, and

         (c)     each director is a shareholder and person concerned in the management of the company, and

         (d)     each shareholder who is not a director is a close family member of a director, and

         (e)     each shareholder or person concerned in the management of the company who is not a director is, in the opinion of the Board, a fit and proper person to be licensed as an individual as a bookmaker under this Act, and

         (f)      subject to other regulations, no person (other than a shareholder) has any interest in the shares or assets of the company.

(4)     It is a condition of a bookmaker licence granted to a company that:

         (a)     the company continues to be an eligible company, and

         (b)     no shareholder or person concerned in the management of the company, other than a director, is licensed as an individual as a bookmaker under this Act, and

                     (c)     …; and

         (d)     no director, shareholder or person concerned in the management of the company:

       (i)      is licensed or otherwise authorised as an individual to carry on, or carries on, the business of a bookmaker, bookmaker’s clerk or turf commission agent, or a totalizator business, in another Australian State or Territory, or

       (ii)     is a director, shareholder or person concerned in the management of a corporation, or is a member of a partnership, that is licensed or otherwise authorised to carry on, or that carries on, any such business in another Australian State or Territory, or

       (iii)    is an employee or agent of any individual, partnership or corporation referred to in the preceding subparagraphs, or

(iv)        has a financial interest in the business of a bookmaker or turf commission agent, or a totalizator business, that is authorised to be carried on or is carried on in another Australian State or Territory,

…

(6)     The condition set out in subsection (4) (d) does not extend to a person who is a director of a company that is licensed as a bookmaker under this Act if:

         (a)     the person is the sole director of the company, and

(b)          the relevant matters referred to in subsection (4) (d) (i), (ii), (iii) or (iv) are disclosed in writing to the Board at the time the company applies for a bookmaker license under this Act or, if they do not occur until after that time, within 2 working days after they occur.

…’

8                     The appellant argued before the primary Judge that s 22 of the GRA, s 25 of the HRA and s 14A of the TRB and Part 4 of the RAA were invalid in their application to the appellant.  Insofar as those provisions applied to the business conducted by the appellant in and from Western Australia the appellant argued that those provisions were in breach of s 92 of the Constitution which requires that ‘trade, commerce and intercourse among the States shall be absolutely free’.  Insofar as those provisions applied to the business conducted by the appellant in and from the Australian Capital Territory the appellant argued that those provisions were inconsistent with s 69 of the Self-Government Act and were consequently invalid pursuant to s 109 of the Constitution.  It was accepted before the primary Judge and before us that at least in this case the legal operation of s 69 of the Self-Government Act as between the Australian Capital Territory and the States is the same as s 92 of the Constitution in relation to the States.

9                     It is to be noted that the only part of the RAA to which the appellant objects is Part 4 of the RAA.  The appellant does not attack the whole licensing scheme as outlined in par [3] above insofar as it might apply to an interstate person seeking to take bets from persons in New South Wales.  The reasons for this have not been explained.  It may be that the appellant would argue (if it were necessary to do so) that the provisions of the Gambling Actand the other provisions of the RAA do not apply to the appellant because the relevant betting contract is not concluded in New South Wales.  We only mention this possibility to make it clear that the issue was not explored before the primary Judge or before us.  We express no view in relation to it.  But again, the way in which the case has been put means that neither the primary Judge nor this Court has been assisted by detailed arguments as to the meaning and effect of the legislative scheme in its application to the appellant; nor has the Court been assisted by any submissions on the constitutional issues (if any) that may have arisen in this context.

10                  Nor has the appellant alleged that the licensing scheme as it applies to ‘sports betting events’ (to be distinguished from horse and greyhound racing) is invalid.

11                  Nor has the appellant challenged the validity of the amendment to the regulatory scheme introduced by the Racing Legislation Amendment (Bookmakers) Act 2002 (NSW) which first permitted corporations to be licensed as bookmakers.  The reason for this is perhaps more obvious, the appellant being a corporation.  But as is discussed below, the decision by the appellant only to raise limited issues in these proceedings necessarily affects the capacity of the Court to deal with some of the arguments that the appellant now raises.

12                  The primary argument put to the primary Judge was that those provisions of s 14A of the TRB, of s 22 of the GRA and of s 25 of the HRA, which had the effect that a corporation could only be authorised if it was incorporated in New South Wales and if its management was not involved in licensed bookmaking in some other jurisdiction were invalid.  The primary Judge dealt with this argument as follows:

‘I am satisfied that the applicant succeeds in its attack upon subs 14A(4)(d) of the TRB and its counterpart sections in the other legislation. There was little disagreement as to the principles to be applied following the trilogy of Cole v Whitfield (1988) 165 CLR 360, Bath v Alston Holdings Pty Ltd (1998) 165 CLR 411 and Castlemaine Tooheys v South Australia (1990) 169 CLR 436, in which the High Court re-interpreted s 92. There is no dispute but that s 69 of the Self Government Act should be interpreted consistently with those authorities (AMS v AIR (1999) 199 CLR 160 at [36] and [221]). The sections in issue are, plainly and expressly, discriminatory - they are aimed at out-of-state parties. They are also plainly protectionist. They protect corporations with local directors, shareholders and managers from competition from corporations with out-of-state directors, shareholders and managers. The only real question is whether the provisions might be justified as being necessary or appropriate to the attainment of a legitimate legislative objective. It will be rare that this will be established in the face of clear and direct protective discrimination. That issue is usually to be considered as part of the inquiry as to whether there is protectionist discrimination.

In the present case, a justification which is put forward is that the provision is designed to assimilate the position of corporate bookmaking with individual bookmaking so far as is possible. The impugned provisions were introduced as part of a package which permitted corporate bookmaking in New South Wales for the first time. Given that, traditionally, gambling has been closely supervised by the licensing of individuals, it was legitimate to endeavour to preserve the essentials of that system when corporate bookmaking was permitted. As individual bookmakers cannot operate in two places at once, it is appropriate that corporate bookmakers should not be able to operate in two places at once. Whilst that argument has some initial attraction, it does not survive analysis. The inability of an individual bookmaker to operate in more than one place at the one time is simply a practical reality which does not serve any particular purpose in the regulatory scheme. Once a decision is made to permit corporate bookmaking, corporations with interstate principals cannot be discriminated against unless for good reason associated with the regulatory scheme. Here, it is impossible to detect such a reason. A corporation with interstate principals which chooses to seek a licence is bound by all of the same requirements, including probity, and its conduct is subject to the same regulation, as corporations with New South Wales principals. The justification which counsel for the State presented, based upon inability to scrutinise overall exposure on the part of interstate bookmaking corporations, is unsupported by evidence, is not referred to in the Second Reading Speech, and is far from being self-evident.

My conclusion has been arrived at without depending upon the statements in the Second Reading Speech relied upon by counsel for the applicant. My decision is based upon the proper construction of the provisions themselves. It is a moot point as to whether a Second Reading Speech can be used to prove what amounts to improper collateral legislative purpose, which I need not resolve.

The issue arising as to the validity of s 14A(3) of the TRB and its counterparts insofar as it requires that an eligible company ‘is taken to be registered in New South Wales for the purposes of the Corporations Act of the Commonwealth’ is different. It follows from Pt 2A.2 of the Corporations Act that a company is taken to be registered in one state or territory and that may only be changed if the conditions laid down by s 119A(3) are satisfied. These include (at the moment) approval of the change by the relevant minister of the state or territory in which the company is taken to be registered before the change. It is to be noted that, although a company comes into existence as a body corporate at the beginning of the day on which it is registered (s 119 of the Corporations Act ), it is incorporated in ‘this jurisdiction’ (s 119A(1)), which is, in effect, Commonwealth jurisdiction (s 5, s 9). It is also to be noted that the company’s legal capacity and powers do not depend in any way on the particular state or territory in which it is taken to be registered (s 124 Corporations Act ). The choice of the particular state or territory does not depend upon any geographical connection with that state or territory, but is a matter of election on the part of the applicant for registration. In my opinion, this requirement is both discriminatory and protectionist in the relevant sense. Counsel for the State did not suggest any real basis for concluding that this was the result of any appropriate regulatory requirement. It is thus invalid.

There is no issue on the pleadings as to the effect of the invalidity which I have found upon the balance of the particular statutes in which the invalid provisions are found save for s 14A(3) of the TRB and its counterparts. In my opinion, the words which create the problem, namely “that is taken to be registered in New South Wales for the purposes of the Corporations Act 2001

of the Commonwealth” can be severed from the balance of the subsection. A question which does arise is whether there is any consequential effect upon Pt 4 of the RAA. In my opinion, there is not. In one sense, of course, there is a legislative scheme in existence here, with statutes referring one to the other, establishing different areas and levels of regulation. The question as to whether invalidity of part of such a scheme brings down another part in a separate statute does not directly give rise to the issue of severance of invalid portions of a statute, at least in circumstances where the statutes are not expressly and in every respect interdependent and incorporated one in the other. However, there may be cases where the practical interdependence of statutes is such that the whole or part of the statute may become devoid of content if that which it depends upon in another statute is declared invalid. In my opinion, none of the impugned provisions of Pt 4 of the RAA are in this category. Each has a live field of operation, whether or not corporate interstate licensed bookmakers are eligible for licensing or not and, indeed, whether or not there are any provisions at all for the licensing of corporate bookmakers. As I have said…the prohibition in each section is quite general. To adapt an analogy, the provisions are not so interwoven that the woof and the warp cannot be separated (Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319 at 386).’

13                  The conclusion by the primary Judge in relation to this primary argument that the relevant provisions of the TRB, the HRA and the GRA are invalid and severable was not challenged before us.  On what we have described as the ‘severance’ issue the argument was that the primary Judge was in error in not also holding that the relevant provisions of Part 4 of the RAA were also invalid by reason of the invalidity of those provisions.

14                  The appellant says that it put an alternative argument.  This was that Part 4 of the RAA was invalid because, properly understood, it prohibited the advertising and/or publication of betting information unless the licensed bookmaker or other authorised person had a physical presence at a licensed racetrack in New South Wales.  It was argued that this requirement discriminated against interstate traders in a protectionist way.  There appears to be some reference to this argument in the pleadings, although it is not clear that argument is put as a basis for invalidity.  The argument also seems to have been referred to in the written submissions before the primary Judge.  It is not clear that the argument was put in oral argument before the primary Judge.  The primary Judge dealt with that argument as follows:

‘Counsel referred to freedom of intercourse as precluding interference with communications (Cunliffe v Commonwealth (1994) 182 CLR 272) and submitted that the manifest purpose of the legislation was to impede, if not prevent, out-of-state bookmakers from crossing the state border, either corporeally or by the use of electronic forms of communication, and that the interference with freedom of intercourse was deliberate rather than incidental. This was said particularly in relation to the impugned provisions of Pt 4 of the RAA. This aspect of the written submissions was not elaborated upon in oral argument, and, as I understand it, was not pressed as a separate ground of invalidity. Even if it were, it would plainly fail, as the prohibitions in Pt 4 are general in operation and are directed to intrastate persons and transactions in the same way as they are directed to persons and transactions outside the state. They are thus not discriminatory or protectionist in the requisite sense.’

15                  The appellant says that it did not abandon this issue before the primary Judge.  It has raised it in the grounds of appeal and although not referred to in its written submissions, has expressly relied upon it in its oral submissions.  This is the issue that we have described as the ‘free trade’ issue.

THE SEVERANCE ISSUE

16                  In England, at least historically, there was no cause to consider severance in relation to Acts of Parliament.  The issue of severance only arose in relation to bodies with limited law making capacity, such as colonial Parliaments and persons exercising delegated powers.  In relation to those, severance was and is possible at common law, but is limited by the ‘blue pencil’ rule: see Director Public Prosecutions v Hutchinson [1990] 2 AC 783 at 804, 811-812; Harrington v Lowe (1996) 190 CLR 311 at 327.  At common law severance is only possible if the offending provision can be expunged without any need for redrafting and only then if the meaning of the provisions remaining is unaffected by the deletion.  At common law ‘reading down’ is probably not permissible; nor is any severance possible which would result in some change to the meaning and effect of the remaining provisions.  These common law rules on severance may continue to have application in some Australian jurisdictions in a number of contexts, such as in relation to search warrants:  see for example Williams v Keelty (2001) 111 FCR 175 at 210-211 at [151].

17                  Under the Constitution,laws made by Australian Parliaments may be invalid in whole or in part.  Given the potential effects of invalidity it is not surprising that Australian Parliaments have legislated so as to require courts to be more active in the construction of statutes that may be affected by invalidity:  see D Pearce & S Argument, Delegated Legislation in Australia,2ndedn, Butterworths, Sydney, 1999, pp 335 ff.  The effect of the various statutory provisions in each jurisdiction is broadly the same:  see Gould v Brown (1998) 193 CLR 346 at 409 at [84].  In relation to statutes of the New South Wales Parliament s 31 of the Interpretation Act 1987 (NSW)(‘the Interpretation Act’) provides:

‘(1)   An Act or instrument shall be construed as operating to the full extent of, but so as not to exceed, the legislative power of Parliament.

(2)     If any provision of an Act or instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the legislative power of Parliament:

         (a)     it shall be a valid provision to the extent to which it is not in excess of that power, and

         (b)     the remainder of the Act or instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.

(3)     This section applies to an Act or instrument in addition to, and without limiting the effect of, any provision of the Act or instrument.’

18                  Notwithstanding the broad terms in which these provisions are expressed, the statutory provisions are nevertheless limited.  In relation to the equivalent Commonwealth provision, s 15A of the Acts Interpretation Act 1901 (Cth), the limitation may have a constitutional basis.  In relation to the States the limitation is implicit from an understanding of the appropriate constitutional functions of the legislatures and the courts.  The relevant limitation was expressed by Latham CJ in Pidoto v Victoria (1943) 68 CLR 87 at 109 as being based upon the separation of powers inherent within the Constitution.  This limits the extent to which a court can redraft a statutory provision.  See also Australian Railways Union v The Victorian Railways Commissioners (1930) 44 CLR 319 at 373-379, 386; R v Poole (1939) 61 CLR 634 at 652; Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 339, 347-348, 355, 366, 371-372; Gould v Brown (1998) 193 CLR 346 at 409-410 at [81]-[85], 461 [237].

19                  Put simply the Court cannot ‘construe’ the relevant provision, whether by reading down or by expunging invalid provisions, where the effect of doing so is to create a provision which the Parliament did not intend.  For this purpose various indicia are referred to such as the extent of the proposed change; the indicia within the statute itself; the legislative purpose and so on.  But the essential issue remains – is the Court carrying out the permissible function of the interpretation of the statute (read in the context of the relevant Acts Interpretation Act provision), or is the Court itself making legislation?

20                  Some of these indicia have some similarity to those applicable under the common law test for severance discussed above.  This has led some commentators to suggest that Australian courts, in applying the statutory provisions, are still tied to the common law rules: see Pearce & Argument, op cit p 337.  However, properly understood, the limitations inherent in the statutory provisions are different from those under the common law, notwithstanding that some of the cases may use similar expressions:  see Harrington v Lowe (1996) 190 CLR 311 at 327.

21                  In particular, courts may be required to construe words and provisions in quite varied ways in order to give effect to the instruction in s 31 of the Interpretation Act.  Reference may be made to the recent decision of the High Court in British American Tobacco Australia Ltd v Western Australia (2003) 200 ALR 403 at 425-426 at [86]-[87] where, in a joint judgment by McHugh, Gummow and Hayne JJ (with whom Callinan J agreed on this point) it was accepted that s 64 of the Judiciary Act 1903 (Cth) could be read down pursuant to s 15A of the Acts Interpretation Act 1901 (Cth) so as to have a differential operation upon each of the Commonwealth and the States, and in relation to the States only to apply distributively depending upon the extent of any legislative power that might exist in that particular case: as to distributive reading down, see the discussion in T Blackshield & G Williams, Australian Constitutional Law, 3rd edn, Federation Press, Sydney, 2002, pp 595-596.  Plainly enough the courts can make significant changes to the apparently plain meaning of the text when it is clear that the relevant Parliament intended that that should occur.  This is consistent with the plain words of s 31 of the Interpretation Act and the equivalent provisions in other jurisdictions.

22                  In this case it might be argued that the primary Judge stated the matter too forcefully in saying that:

‘The question as to whether invalidity of part of such a scheme brings down another part in a separate statute does not directly give rise to the issue of severance of invalid portions of a statute, at least in circumstances where the statutes are not expressly and in every respect interdependent and incorporated one in the other.’

Plainly enough, where the severance of an invalid provision of a legislative scheme affects the meaning of that which remains (whether in a separate Act or not) an issue of severance or reading down arises:  see Logan Downs Pty Ltd v Federal Commissioner of Taxation (1965) 112 CLR 177 at 187.  But if the quoted sentence is considered in context, it would seem that the primary Judge was not proposing anything to the contrary.

23                  What the primary Judge was saying, it seems to us, is that the deletion of the invalid provisions of the TRB, the HRA and the GRA did not affect the meaning of Part 4 of the RAA.  It seems to us that in that he was correct.  The severing of the invalid provisions of the TRB, the HRA and the GRA mean that a person who would otherwise not be entitled to be a licensed bookmaker can be licensed.  But a licensed bookmaker as referred to in Part 4 of the RAA is nevertheless a licensed bookmaker, notwithstanding that some of the former requirements for licensing are invalid.  The meaning of Part 4 of the RAA does not seem to us to have changed.

24                  But even if we are wrong in this, any change affected by now reading ‘licensed bookmaker’ (or any other term or provision of Part 4) in its newly understood meaning falls plainly and clearly within the power conferred by s 31 of the Interpretation Act.  Otherwise, the severance identified by the primary Judge in relation to the TRB, the HRA and the GRA must necessarily have been inadequate and inappropriate.  However, that severance seems obvious.  Indeed, it was not challenged on this appeal.  Once that severance is accepted, then it must follow that the legislative scheme (including, for this purpose, s 31 of the Interpretation Act) contemplated the deletion of those provisions if they were invalid.  It also necessarily follows that the continued operation of Part 4 of the RAA, notwithstanding the invalidity and severance identified by the primary Judge, does not involve the court in impermissibly exercising legislative power.  Part 4 of the RAA is not invalid by reason of the severance issue.

THE ‘FREE TRADE’ ISSUE

25                  The ‘free trade’ issue may involve different considerations.  The argument in relation to this issue is again based upon the argument that Part 4 of the RAA forms part of a legislative scheme.  For this purpose different objectionable aspects of the legislative scheme are alleged.  The appellant says that the effect of the qualified prohibitions in Part 4 of the RAA is that the appellant, even if licensed can only ‘publish’ or ‘advertise’ in New South Wales if the appellant has a physical presence on a racecourse.  To this extent, it is said, Part 4 of the RAA reflects other provisions of the legislative scheme, such as s 9 of the Gambling Act and ss 16, 19 and 24 of the RAA which impose similar requirements.  Sections 16 and 24 are relevantly ‘picked up’ in Part 4.  The appellant says that the requirement that the appellant have a physical presence on a racecourse discriminates against ‘interstate traders’ (including, for this purpose, traders from the Australian Capital Territory) and against communication across the relevant borders.  The appellant says that such discrimination is in breach of s 92 of the Constitution and/or s 69 of the Self-Government Act (which, for this purpose, can be treated interchangeably).

26                  As already noted, the primary Judge did not think that this issue was being actively pursued.  Given the problems inherent in it which are referred to below, it is not surprising that it was not a prominent aspect of the case presented before him.  Although the appeal grounds do identify the argument as a ground of appeal, it was not referred to in the appellant’s written submissions.  On the other hand, the severance issue, which was clearly relied upon in those written submissions, had the obvious difficulties which are discussed above.  It is also not surprising that Mr Jackson QC, who put the oral submissions for the appellant, sought to rely upon the free trade issue.  However, this leaves him with the problems inherent in that argument against the background that the argument was not actively pursued before the primary Judge.

27                  In this regard we again note that the appellant did not challenge the licensing scheme as described above.  It did not argue, for example, that the requirement that interstate traders were required to obtain a discretionary license and other authorisations in order to bet in New South Wales was invalid because of the requirement to be licensed.  It did not even argue that the requirement that interstate traders are required to have a presence on a New South Wales racecourse in order to take bets in New South Wales on specified sports events was invalid because of that requirement.  The argument was limited to the prohibition on advertising in Part 4 of the RAA.

28                  In Barley Marketing Board for New South Wales v Norman (1990) 171 CLR 182 the High Court summarised the law relating to the meaning and effect of the requirements in relation to the freedom of trade and commerce in s 92 of the Constitution.  The Court explained (at 199):

‘Cole v Whitfield decided that the freedom of interstate trade and commerce guaranteed by s 92 is freedom from imposition on that trade and commerce of discriminatory burdens of a protectionist kind [(1988) 165 CLR 360 at pp 394, 398, 407-408] A law will discriminate in the relevant sense against interstate trade or commerce “if the law on its face subjects that trade or commerce to a disability or disadvantage or if the factual operation of the law produces such a result” [(1988) 165 CLR 360 at p 399] With reference to an impugned State law, the Court observed [(1988) 165 CLR 360 at p 405]:

         “If it applies to all trade and commerce, interstate and intrastate alike, it is less likely to be protectionist than if there is discrimination appearing on the face of the law. But where the law in effect, if not in form, discriminates in favour of intrastate trade, it will nevertheless offend against s 92 if the discrimination is of a protectionist character. A law which has as its real object the prescription of a standard for a product or a service or a norm of commercial conduct will not ordinarily be grounded in protectionism and will not be prohibited by s 92. But if a law, which may be otherwise justified by reference to an object which is not protectionist, discriminates against interstate trade or commerce in pursuit of that object in a way or to an extent which warrants characterization of the law as protectionist, a court will be justified in concluding that it nonetheless offends s 92.”’

For this purpose ‘trade and commerce’ would include bookmaking and other forms of commercial gambling.

29                  Even if the law is relevantly discriminatory, it will still not be in breach of s 92 if the law is reasonably appropriate and adapted to some legitimate objective.  For this purpose a ‘legitimate’ objective is some objective other than the protection of intra-state trade.  For example the case of Castlemaine Tooheys v South Australia (1990) 169 CLR 436 concerned the validity of a statutory deposit on beverage containers which discriminated between intra-state and interstate manufactured beverages.  It was argued, and the High Court accepted, that an objective of the legislation was the protection of the environment.  The majority of the Court then proceeded (at 472-474):

‘It would extend the immunity conferred by s. 92 beyond all reason if the Court were to hold that the section invalidated any burden on interstate trade which disadvantaged that trade in competition with intrastate trade, notwithstanding that the imposition of the burden was necessary or appropriate and adapted to the protection of the people of the State from a real danger or threat to its well-being.  And it would place the Court in an invidious position if the Court were to hold that only such regulation of interstate trade as is in fact necessary for the protection of the community is consistent with the freedom ordained by s. 92.  The question whether a particular legislative enactment is a necessary or even a desirable solution to a particular problem is in large measure a political question best left for resolution to the political process. The resolution of that problem by the Court would require it to sit in judgment on the legislative decision, without having access to all the political considerations that played a part in the making of that decision, thereby giving a new and unacceptable dimension to the relationship between the Court and the legislature of the State …

If we accept, as we must, that the legislature had rational and legitimate grounds for apprehending that the sale of beer in non-refillable bottles generates or contributes to the litter problem and decreases the State’s finite energy resources, legislative measures which are appropriate and adapted to the resolution of those problems would be consistent with s. 92 so long as any burden imposed on interstate trade was incidental and not disproportionate to their achievement. Accordingly, the validity of the 1986 legislation rests on the proposition that the legislative regime is appropriate and adapted to the protection of the environment in South Australia from the litter problem and to the conservation of the State’s finite energy resources and that its impact on interstate trade is incidental and not disproportionate to the achievement of those objects.’

30                  A somewhat different test is applicable in relation to freedom of intercourse (including for this purpose communication).  That freedom is not directed to protectionist burdens.  However, it is still necessary to identify some relevant discrimination.  As it was explained by Deane J in Cunliffe v Commonwealth (1994) 182 CLR 272 at 346:

‘The freedom of intercourse which the section demands is freedom within an ordered community and a law which incidentally and non-discriminately affects interstate intercourse in the course of regulating some general activity, such as the carrying on of a profession, business or commercial activity, will not contravene s. 92 if its incidental effect on interstate intercourse does not go beyond what is necessary or appropriate and adapted for the preservation of an ordered society or the protection or vindication of the legitimate claims of individuals in such a society.’  (See also at 307-308, 333, 366)

31                  Both tests require that there be effective discrimination against those involved in the protected activity; both tests are qualified in relation to burdens that are appropriate and adapted to a legitimate objective.

32                  The application of these tests may well require quite detailed factual evidence and quite difficult factual analysis in some cases:  see Cole v Whitfield (1988) 165 CLR 360 at 407, 409.

33                  On the face of it, a requirement that a person be physically present at a place within a particular State does not discriminate between local traders and others.  However, it may discriminate in effect.  One might readily assume, for example, that persons resident in New South Wales can more readily comply with a requirement that they be present at (say) Randwick racecourse than can persons resident in Victoria.  But in order to establish that discrimination exists it will usually be necessary to test that assumption by evidence of the effect in practice.  With modern developments in travel and communications many of the assumptions that might have safely been made in the past must now be considered doubtful.  It may be, for example, that a requirement that a person be present at Randwick racecourse will work greater hardship on a person from Broken Hill in New South Wales than it would on a person from Melbourne in Victoria, at least if it can be shown that travel is more readily available between Melbourne and Sydney than between Broken Hill and Sydney.  And a requirement that a person be present at the Broken Hill racecourse may work a greater hardship on a person from Sydney than it does on a person from Adelaide in South Australia.  Of course, a law may breach the requirements of s 92 of the Constitution if it discriminates against interstate trade in favour of persons within a particular region of a State.  But clearly enough the nature and extent of the discrimination must be identified before its effects can be meaningfully considered and any legitimate objects that might be said to justify the relevant discrimination can be identified.

34                  Unless the discrimination is obvious on the face of the legislation (such as it was in relation to the provisions held invalid by the primary Judge) it is necessary to establish, as a fact, that the burden operates so as to discriminate against interstate trade.

35                  Neither party has put any material before the Court to enable the primary Judge or us to determine whether the requirement that a licensed bookmaker be present at a licensed racecourse discriminated against interstate traders.  Certainly it may be accepted that the requirement imposes a burden on the appellant which it would prefer to avoid.  (Although even the extent of that burden may be questionable given that the appellant does have employees in New South Wales and does have some access to a licensed racecourse).  But the same may be true of a New South Wales bookmaker who wished to accept internet bets on Rugby World Cup events.

36                  Even assuming that the analysis of the actual operation of the provisions revealed that they discriminated in effect against interstate bookmakers or against interstate communication, the issue would still remain whether the burden imposed was reasonably proportionate to a legitimate object.  In this case the relevant object would seem to be the regulation of gambling.  The obsessive nature of some gambling activity is well documented.  There is a significant risk of exploitation. The activity of gambling has often attracted or involved persons of poor reputation.  Many now believe and many have historically believed that gambling is a social evil.  As the primary Judge noted, in these circumstances it is not surprising that the High Court has accepted (admittedly in the context of a different test) that the regulation of gambling is a legitimate Parliamentary objective, see R v Connare; Ex parte Wawn (1939) 61 CLR 596; R v Martin; Ex parte Wawn (1939) 62 CLR 457; Mansell v Beck (1956) 95 CLR 550.

37                  In New South Wales the form of that regulation historically was much as it is now.  Principally it involved a prohibition upon gambling, but with certain exceptions.  Historically one of the exceptions was betting with a licensed bookmaker at a racecourse.  Another was betting with a totalizator at a racecourse.  Another was gambling in a government administered lottery.  Each of these exceptions might be justified on the basis of their limited nature and the controls that went with them.  So, for example, the exception in relation to betting with a licensed bookmaker at a racecourse might be justified on the basis that the activities of such bookmakers were strictly controlled and supervised and on the basis that the betting activity was limited to the duration of a race meeting and the punter had to make the real effort to go to the racecourse in order to gamble.

38                  It may be that a close analysis of the current legislative regime in New South Wales for the regulation of gambling might suggest that the historical objective of regulation of a social evil is no longer the relevant objective of the scheme.  Perhaps now there are so many exceptions and so little effective supervision that the objective has changed.  For example, the Racing Legislation Amendment (Bookmakers) Act 2002 (NSW) permitted corporations to hold bookmakers licenses.  There were a number of restrictions imposed in relation to that, some of which the primary Judge held invalid.  But the fact that corporations can now hold a bookmaking license may suggest that the objective of the legislative scheme has changed, at least to some extent.  The introduction of off-course betting (whether with bookmakers or totalizators), the broad scale use of electronic gambling (whether by telephone or internet), the ‘privatisation’ of what were government-owned gambling monopolies, the introduction of national competition between totalizator companies and the active promotion by governments of gambling events may all suggest that the objective is different from what it once was.

39                  In this case the only information before the Court relating to any other objective of any aspect of the legislative scheme is a reference in the Second Reading Speech of the Bill for the Racing Legislation Amendment (Bookmakers) Act 2002 (NSW) in the Legislative Assembly of the New South Wales Parliament on 19 March 2002.  The relevant Minister referred to the perceived need to protect the racing industry in New South Wales from gambling by overseas interests and from ‘corporate bookmakers in the Northern Territory and the Australian Capital Territory.’

40                  The respondent objects to the use of the Parliamentary record for the purpose of showing that the Parliament intended an ‘illegitimate’ objective.  Although not mentioned in the authorised report, it is noted that the plaintiff in Castlemaine Tooheys v South Australia (1990) 169 CLR 436 sought to make a similar use of the Parliamentary debates against the objection of the defendant.  In that case the Court did not rule on the question. However, it is clear enough that the usual common law and/or statutory rules against the use of what is said in Parliament to ‘impugn’ the intention of the relevant Parliamentary speaker or of the Parliament itself are necessarily limited by the Constitution.  This is a point made by Kirby J in Egan v Willis (1998) 195 CLR 424 at 492-493:

‘Courts in this country, at least in the scrutiny of the requirements of the Australian Constitution, have generally rejected the notion that they are forbidden by considerations of parliamentary privilege, or of the ancient common law of Parliament, from adjudging the validity of parliamentary conduct where this must be measured against the requirements of the Constitution. Whilst it is true that Australian courts will ordinarily permit parliamentary procedures to be completed  before they intervene, the power of intervention by the courts cannot be seriously doubted. It is the nature of a federal polity that it constantly renders the organs of government, federal and State, accountable to a constitutional standard. State Parliaments in Australia, whatever their historical provenance, are not colonial legislatures. They are provided for in the Australian Constitution. To this extent, at least, they are rendered accountable to the constitutional text. Notions of unreviewable parliamentary privilege and unaccountable determination of the boundaries of that privilege which may have been apt for the sovereign British Parliament must, in the Australian context, be adapted to the entitlement to constitutional review. Federation cultivates the habit of mind which accompanies constitutional superintendence by the courts. Courts recognise a large measure of power in, say, the chamber of a State Parliament, to define and enforce its notions of its own privileges. But the Australian constitutional context does not accord to such a body a completely unreviewable entitlement, in law, to define and enforce its own powers. Any such powers can only be exercised in conformity with the political and judicial system which the Constitution creates.’ (footnotes omitted)

On this basis we would accept that it is permissible to refer to the Parliamentary debates if it is relevant to do so.

41                  In this case the only possible relevance of the Second Reading Speech is in the identification of a possible objective for some aspects of the legislative scheme insofar as it relates to corporations.  As already mentioned, that was not a basis upon which the scheme has been challenged.  In any event, the objective referred to in the Second Reading Speech would seem to be the protection of the ‘racing industry’ in New South Wales.  This may be a legitimate objective, notwithstanding that it may have different consequences and effects from the objective of regulating a social evil as discussed above.  In Cole v Witfield (1988) 165 CLR 360 the High Court accepted that the protection of Tasmanian crayfish stocks was a legitimate objective in circumstances where the exploitation of those stocks was non-discriminatory.  Further material in this case might establish that the relevant ‘racing’ industry (whether in relation to horse racing, trotting or greyhound racing) is open to persons from all States and Territories whether as competitors, bookmakers or punters.  If this is the case then the ‘protection’ of the ‘racing’ industry might be understood as referring to the appropriate funding of racing venues and events so as to attract appropriate interest, both intra-state and interstate.  One means of such funding might well be imposing charges and taxes upon bookmakers, totalizators and others who profit from betting on those events.  This may be an appropriate objective.  There is no obvious reason why bookmakers in other jurisdictions should not pay their fair share of those charges and taxes if they profit from gambling on those events.  Obviously this needs to be explored in considerable detail.  The nature of the industry, how it is regulated in different jurisdictions, and what arrangements for funding racing events would all need to be explored.  The question of whether these arrangements should also be applied to other sporting events not directly connected to horse and greyhound racing would also need to be considered.  There may be other essential considerations of which we are totally uninformed.  We certainly do not say that further investigation would necessarily establish that this relevant objective, if it exists, is a ‘legitimate’ one.  It is simply that it may be.

42                  These possible objectives of the legislative scheme as a whole are also applicable to the specific prohibition on the advertising of gambling or the publication of the terms on which illegal bets might be received.  In this regard we note that Part 4 of the RAA would seem to have survived in the same form in New South Wales since the enactment of the Gaming and Betting (Amendment) Act 1938 (NSW).

43                  The appellant submitted before us that the only objective now remaining is raising taxation revenue for the Treasury.  This would not be a legitimate objective for the purpose of justifying a discriminatory burden: see Bath v Alston Holdings (1988) 165 CLR 411.  But that this is the only objective cannot be left to mere assertion.  It requires a close analysis of the statutory scheme in order to ascertain what it means.  It requires a close consideration of the practical operation of that scheme to ascertain what its effects now are, in contrast to what they may have been in the past.

44                  It may also be that changes both to the scheme and to the context in which it operates have had the result that the regulation of gambling which once could be justified as being reasonably appropriate and adapted to the objective of regulating gambling can no longer be so justified.  The increasing authorisation of off-course totalizator betting, the development of the internet and other forms of electronic gambling; the authorisation of all of those forms of gambling in some jurisdictions and the limited authorisation of them in New South Wales may well have the effect that the requirement that the licensed bookmaker must be present at a licensed racecourse is now pointless.  Again, none of these issues were explored before us.

45                  Finally, even if we were satisfied that the legislative prohibition upon advertising, unless by a licensed bookmaker standing at a licensed racecourse, was relevantly discriminatory and that it was not reasonably appropriate and adapted to a legitimate object, the issue would then arise as to how the legislation should be construed in light of s 31 of the Interpretation Act.  It may be, for example, that the appropriate construction is one reading down s 9 of the Gambling Act and ss 16 and 24 of the RAA in a similar manner to that taken by the primary Judge in relation to the TRB, the HRA and the GRA.  This would seem to be the usual approach to the construction of a relevant provision which has the effect of qualifying an otherwise broad exemption from a prohibition with the effect that the prohibition is constitutionally invalid – it is the qualification which is read down or expunged: see for example Bath v Alston Holdings Pty Ltd (1988) 165 CLR 411 at 431.  For the same reasons as those given above in relation to the severance issue this approach might well have the result that Part 4 of the RAA did not require any ‘reading down’.  If this were the result then the appellant would still be subject to the prohibitions in Part 4 of the RAA (assuming that those prohibitions would otherwise apply) unless it were a licensed bookmaker, but may be able to obtain an authority that would avoid the requirement that the appellant have a physical presence at a licensed racecourse.  One effect of this would seem to be that the appellant, and others in the appellant’s position, would still be required to comply with the duties imposed on licensed bookmakers by the Racing Administration Regulation 1999 (NSW).  Such a result might be thought to better reflect the legislative object than the submission by the appellant that Part 4 should be read down as not being applicable to the appellant at all. 

46                  Neither party has addressed these issues.  Indeed, as already noted, the appellant has not challenged the scheme as such.  It has limited its attack to the operation of Part 4 of the RAA.  Yet that attack must necessarily be based upon the alleged invalidity of the scheme of which Part 4 forms a part.  The factual material that the parties have placed before the Court is totally insufficient to enable the Court to deal with the ‘free trade’ issue that the appellant now pursues.

47                  There are some factual issues that arise in litigation where the court is necessarily constrained by the evidence led by the parties. In such cases the inadequacy or otherwise of that evidence does not relieve the court from making what factual conclusions it can based upon what evidence is called and the various burdens of proof that might apply.  However, where the issue (as here) concerns the validity of legislation, different considerations apply.  This was explained by Brennan J in Gerhardy v Brown (1985) 159 CLR 70 at 141-142:

‘There is a distinction between a judicial finding of a fact in issue between parties upon which a law operates to establish or deny a right or liability and a judicial determination of the validity or scope of a law when its validity or scope turns on a matter of fact.  When a court, in ascertaining the validity or scope of a law, considers matters of fact, it is not bound to reach its decision in the same way as it does when it tries an issue of fact between the parties.  The validity and scope of a law cannot be made to depend on the course of private litigation.  The legislative will is not surrendered into the hands of the litigants … The court may, of course, invite and receive assistance from the parties to ascertain the statutory facts, but it is free also to inform itself from other sources.  Perhaps those sources should be public or authoritative, and perhaps the parties should be at liberty to supplement or controvert any factual material on which the court may propose to rely, but these matters of procedure can await consideration on another day.  The court must ascertain the statutory facts “as best it can” and it is difficult and undesirable to impose an a priori restraint on the performance of that duty.’

48                  There are cases where a court has no choice but to deal with a question of constitutional validity that arises in a case.  A prosecution for breach of a statutory provision alleged to be invalid might be an example.  In such a case a court may have no choice but to inform itself ‘as best it can’.  For this purpose, of course, the court could require the parties to provide further factual material.  In particular, the court would often rely upon the relevant Attorney General to provide some assistance to it as to relevant factual matters.  But as Brennan J pointed out the court can also inform itself from its own inquiries.

49                  There are obvious dangers in it doing so.  Those dangers are referred to by Callinan J in Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at 510-513.  To the extent that his Honour concludes that a court cannot inquire for itself into constitutional facts, such authority as there is would seem to be to the contrary.  But the dangers are clear enough.  In light of those dangers a court would not lightly undertake the task of carrying out detailed factual research, at least unless the material relied upon was ‘public or authoritative’ or unless the court had no other choice. That is not this case.

50                  The applicant has approached the court seeking a declaration.  Undoubtedly there is a justiciable dispute and the Court has jurisdiction to deal with it.  But the remedy sought is discretionary.  And the applicant has asked the Court to deal with the matter expeditiously.  Whatever the reasons for the approach that the parties have taken, the inadequacy of the information and material that is before the Court are matters that the Court can properly take into account in determining whether it can or should give a discretionary remedy, see The Queen v The Judges of the Federal Court of Australia; Ex parte Western Australian National Football League (1979) 143 CLR 190 at 207.  The appropriate course in this case is simply to decline to give the declaration sought on the basis that the information before the Court is not adequate to enable the Court to determine whether the arguments put before it in relation to the ‘free trade’ argument are correct or not.  This was the course adopted by the High Court in a similar context in A. Raptis & Son v South Australia (1977) 138 CLR 346 at 378, 390.  The result is that, even if the primary Judge had realised that the ‘free trade’ issue was being actively pursued, it would not have been appropriate for him to give the declarations sought in relation to ss 28-33 of the RAA.  It is similarly inappropriate for us to do so.

51                  For these reasons the appeal must be dismissed with costs.

Associate:        

Dated:              29 October 2003