FEDERAL COURT OF AUSTRALIA

Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia Ltd [2005] FCA 1438

PRACTICE AND PROCEDURE – separate questions – claim that respondents made or arrived at an understanding in contravention of s 45(2)(a)(ii) of the Trade Practices Act 1974 (Cth) – whether pleaded defence provides an answer to the claim – proper construction of the pleading.

CONSTITUTIONAL LAW – implied freedom of political communication – whether the implied freedom applies to communications with a local government planning authority concerning local planning decisions.

STATUTORY INTERPRETATION – statutory construction – whether s 45(2) of the Trade Practices Act 1974 (Cth) detracts from freedom of speech or the right of access to courts.

Trade Practices Act 1974 (Cth), ss 45(2)(a)(ii), 45(2)(b)(ii)

Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia Ltd [2005] FCA 1002, cited

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, followed

Coleman v Power (2004) 209 ALR 182, discussed

R v Hughes (2000) 202 CLR 535, cited

APLA Ltd v Legal Services Commissioner (NSW) (2005) 219 ALR 403, discussed

Cunliffe v The Commonwealth (1994) 182 CLR 272, cited

Austin v Commonwealth (2003) 215 CLR 185, referred to

Coco v The Queen (1994) 179 CLR 427, cited

Brown v Members of the Classification Review Board 1998) 82 FCR 225, cited

In re Boaler [1915] 1 KB 21, cited

Commonwealth Trading Bank v Inglis (1974) 131 CLR 311, cited

Johnson v Director-General of Social Welfare (Victoria) (1976) 135 CLR 92, cited

Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia Ltd and Ors

NSD 740 of 2003

SACKVILLE J

SYDNEY

20 OCTOBER 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 740 of 2003

BETWEEN:	DIRECT FACTORY OUTLETS HOMEBUSH PTY LIMITED (ACN 094 951 112) APPLICANT
AND:	PROPERTY COUNCIL OF AUSTRALIA LIMITED (ACN 008 474 422) FIRST RESPONDENT WESTFIELD MANAGEMENT LIMITED (ACN 001 670 579) SECOND RESPONDENT WESTFIELD HOLDINGS LIMITED (ACN 001 671 496) THIRD RESPONDENT GTP MANAGEMENT LIMITED (ACN 000 335 473) FOURTH RESPONDENT LEND LEASE CORPORATION LIMITED (ACN 000 226 228) FIFTH RESPONDENT CENTRO PROPERTIES LIMITED (ACN 006 378 365) SIXTH RESPONDENT STOCKLAND TRUST MANAGEMENT (ACN 001 900 741) SEVENTH RESPONDENT STOCKLAND CORPORATION LIMITED (ACN 000 181 733) EIGHTH RESPONDENT QUEENSLAND INVESTMENT CORPORATION NINTH RESPONDENT SANITY MUSIC STORES PTY LTD (ACN 072 187 298) TENTH RESPONDENT PERFUMANIA PTY LIMITED T/AS THE PERFUME CONNECTION (ACN 057 828 378) ELEVENTH RESPONDENT COLORADO GROUP LIMITED T/AS MATHERS SHOES LIMITED (ACN 004 327 566) TWELFTH RESPONDENT FOAD HADDAD & RHONDA GIBSON HADDAD T/AS FLORENTINE EYEWEAR THIRTEENTH RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	20 OCTOBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The separate questions be answered as follows:

Question: Assuming the facts as alleged in the Second Further Amended Statement of Claim are established, does the First to Eighth Respondents’ Defence to the Second Further Amended Statement of Claim based on the construction and operation of s 45 of the Trade Practices Act 1974 (Cth)(being the matter pleaded in para 18 of the Defence filed 15 July 2005) raise a valid and complete defence to the whole of, or to any cause of action pleaded in, the Second Further Amended Statement of Claim?

Answer: (i) Insofar as the Statement of Claim pleads a cause of action founded on s 45(2)(a)(ii) of the Trade Practices Act 1974 (Cth), no; but this does not necessarily mean that s 45(2)(a)(ii) applies to the conduct alleged against the Respondents.

(ii) Insofar as the Statement of Claim pleads a cause of action founded on s 45(2)(b)(ii) of the Trade Practices Act 1974 (Cth), no; but this does not necessarily mean that s 45(2)(b)(ii) applies to the conduct alleged against the Respondents.

Question: Assuming the facts as alleged in the Second Further Amended Statement of Claim are established, does the First to Eighth Respondents’ Defence to the Second Further Amended Statement of Claim based on the Constitution (being the matter pleaded in para 20 of the Defence filed 15 July 2005) raise a valid and complete defence to the whole of, or to any cause of action pleaded in, the Second Further Amended Statement of Claim?’

Answer: Inappropriate to answer.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 740 of 2003

BETWEEN:

DIRECT FACTORY OUTLETS HOMEBUSH PTY LIMITED (ACN 094 951 112)

APPLICANT

AND:

PROPERTY COUNCIL OF AUSTRALIA LIMITED

(ACN 008 474 422)

FIRST RESPONDENT

WESTFIELD MANAGEMENT LIMITED

(ACN 001 670 579)

SECOND RESPONDENT

WESTFIELD HOLDINGS LIMITED

(ACN 001 671 496)

THIRD RESPONDENT

GTP MANAGEMENT LIMITED

(ACN 000 335 473)

FOURTH RESPONDENT

LEND LEASE CORPORATION LIMITED

(ACN 000 226 228)

FIFTH RESPONDENT

CENTRO PROPERTIES LIMITED

(ACN 006 378 365)

SIXTH RESPONDENT

STOCKLAND TRUST MANAGEMENT

(ACN 001 900 741)

SEVENTH RESPONDENT

STOCKLAND CORPORATION LIMITED

(ACN 000 181 733)

EIGHTH RESPONDENT

QUEENSLAND INVESTMENT CORPORATION

NINTH RESPONDENT

SANITY MUSIC STORES PTY LTD

(ACN 072 187 298)

TENTH RESPONDENT

PERFUMANIA PTY LIMITED T/AS THE PERFUME CONNECTION (ACN 057 828 378)

ELEVENTH RESPONDENT

COLORADO GROUP LIMITED T/AS MATHERS SHOES LIMITED (ACN 004 327 566)

TWELFTH RESPONDENT

FOAD HADDAD & RHONDA GIBSON HADDAD T/AS FLORENTINE EYEWEAR

THIRTEENTH RESPONDENT

JUDGE:	SACKVILLE J
DATE:	20 OCTOBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

the separate questionS

1 The applicant (‘DFO’) was formerly the head lessee of the Homebush Shopping Centre located at Homebush, a suburb of Sydney. DFO is now the owner of the Centre. DFO seeks relief against a number of owners or operators of other shopping centres.

2 The relief sought by DFO is as follows:

· a declaration that nine of the thirteen respondents (I refer to these nine as ‘the Respondents’) have made or given effect to an arrangement in contravention of ss 45(2)(a)(ii) and 45(2)(b)(ii) of the Trade Practices Act 1974 (Cth) (‘TP Act’);

· orders restraining five of the Respondents (I refer to these five as ‘the LE Court Respondents’) from taking any fresh step in proceedings in the Land and Environment Court of New South Wales (‘the LE Court’) against DFO and others and from commencing fresh proceedings in the LE Court seeking substantially the same relief;

· an order restraining the Respondents from giving effect to the alleged arrangement;

· an order restraining the Respondents from making or giving effect to an agreement, arrangement or understanding to do or procure any or all of the following:

‘(i) working together to prevent or hinder the approval, development or operation of outlet centres;

(ii) promoting a “retail hierarchy” or a “metropolitan centres policy” whereby outlet centres, may only be approved, developed or operated at recognised centres of population and commerce or may only be approved, developed or operated where there are public transport links or may only be approved, developed or operated at locations which are zoned for commercial and retail use;

(iii) opposing the approval, development or operation of outlet centres on industrial zoned land; and

(iv) opposing the approval, development or operation of outlet centres on airport land.’;and

· damages against the Respondents.

3 Section 45(2)(a)(ii) of the TP Act provides, among other things, that a corporation shall not make an arrangement if a provision of the proposed arrangement has the purpose, or would have or be likely to have the effect, of substantially lessening competition. Section 45(2)(b)(ii) prohibits a corporation from giving effect to a provision of an arrangement, if that provision has the purpose, or has or is likely to have the effect of substantially lessening competition. The precise terms of these provisions are reproduced later ([37] below).

4 The first respondent (‘the Property Council’) has a specialist division known as the Shopping Centre Council of Australia (‘SCCA’) which represents owners or managers of shopping centres in Australia. The remaining eight Respondents are engaged or related to a corporation engaged in the business of developing, managing and operating retail shopping centres, including regional centres, in Australia. These eight Respondents comprise the following:

· the second respondent (‘Westfield Management’) and the third respondent (‘Westfield Holdings’) (together ‘Westfield’);

· the fourth respondent ‘GPT’ and the fifth respondent (‘Lend Lease Corporation’) (together ‘Lend Lease’);

· the sixth respondent (‘Centro’);

· the seventh respondent (‘Stockland Management’) and the eighth respondent (‘Stockland Corporation’) (together ‘Stockland’); and

· the ninth respondent (‘QIC’).

Each of these eight Respondents is a member of the Property Council or is related to a member of the Property Council. The LE Court Respondents are the Property Council, Westfield Management, GPT, Centro and Stockland Management.

5 The Respondents have pleaded in their defences that the conduct alleged against them does not, as a matter of law, give rise to a contravention of either s 45(2)(a)(ii) or s 45(2)(b)(ii) of the TP Act (par 18). They have also pleaded that if s 45(2) of the TP Act has the construction alleged by DFO, the provision infringes the implied constitutional freedom of communication about government or political matters or alternatively an implied constitutional right of access to courts and tribunals (par 20).

6 In a judgment delivered on 22 July 2005 (Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia Ltd [2005] FCA 1002), I made an order pursuant to Federal Court Rules (‘FCR’), O 29 r 2(a), that the following questions be heard and determined separately from and before the determination of all other questions in the proceedings:

‘(a) Assuming the facts as alleged in the Second Further Amended Statement of Claim are established, does the First to Eighth Respondents’ Defence to the Second Further Amended Statement of Claim based on the construction and operation of s 45 of the [TP Act] (being the matter pleaded in para 18 of the Defence filed 15 July 2005) raise a valid and complete defence to the whole of, or to any cause of action pleaded in, the Second Further Amended Statement of Claim?

(b) Assuming the facts as alleged in the Second Further Amended Statement of Claim are established, does the First to Eighth Respondents’ Defence to the Second Further Amended Statement of Claim based on the Constitution (being the matter pleaded in para 20 of the Defence filed 15 July 2005) raise a valid and complete defence to the whole of, or to any cause of action pleaded in, the Second Further Amended Statement of Claim?’

7 I recorded in the judgment (at [39]) that the Respondents were prepared to argue the separate questions on the basis that if the questions cannot be answered without reference to facts not pleaded in the Statement of Claim, I shall be unable to give the answers for which the Respondents contend (namely that the matters pleaded by them constitute a complete defence to the whole of the Statement of Claim or alternatively to the causes of action founded upon s 45 of the TP Act). Accordingly, if the questions cannot be resolved without further facts being established, the response will be: ‘Inappropriate to answer’.

8 I should note that at the hearing Mr Jackman SC appeared with Mr Hewitt for the Respondents, other than QIC. QIC, which has filed a separate defence, did not play an active part at the hearing, but adopted the submissions made by Mr Jackman. Mr Bannon SC appeared with Mr Lancaster for DFO.

the pleadings

9 The Second Further Amended Statement of Claim (‘the Statement of Claim’) pleads the existence of separate markets in Sydney, Brisbane and Melbourne for ‘the supply of tenancies for retail space’ (par 35). It also pleads the existence of separate geographic markets ‘for the supply of retail centre services by retail centre landlords to customers’ (par 36).

10 DFO pleads that the five LE Court Respondents commenced or were joined as applicants in, proceedings in the LE Court (‘the LE Court proceedings’). It is said that the LE Court Respondents sought orders preventing several parties, including DFO, from carrying on certain activities at the Homebush Shopping Centre (pars 37-38), but that the proceedings were summarily dismissed in December 2004 (par 40). (I was informed from the bar table that an appeal against the summary dismissal order has been listed for hearing by the New South Wales Court of Appeal. Thus the relief sought by DFO in respect of the LE Court proceedings has not necessarily been overtaken by events.)

11 DFO alleges that its parent company (‘Austexx’) proposes to operate ‘outlet centres’ at specified retail outlets in different parts of Australia including the Liverpool Shopping Centre (par 42). It is said that in 2003 Liverpool Council advertised an amendment to the Liverpool Local Environment Plan 1997 (‘Liverpool LEP’) which would have enabled Austexx to open an outlet centre at the Liverpool Shopping Centre (par 43). DFO alleges that several entities associated with one or another of the Respondents made separate submissions ‘objecting to the draft amendment’ to the Liverpool LEP (pars 44-47). The particulars identify certain letters sent by these entities to Liverpool Council, but the text of the letters is not set out in the pleadings.

12 The Statement of Claim also pleads that Austexx proposes to establish an outlet centre at a retail development located at Brisbane Airport (par 48). DFO alleges that two Respondents (or companies associated with them) commenced proceedings in this Court seeking to prevent Austexx from opening the outlet centre (pars 49-50). It is said that these proceedings were dismissed in February 2005 (par 52).

13 DFO next alleges that Austexx proposes to operate an outlet centre at Essendon Airport in Victoria (par 53) and that the Essendon Airport Master Plan, which provides for retail development at the Airport, was approved by the relevant Commonwealth Minister in March 2003 (par 54). DFO pleads that several entities associated with one or other of the Respondents ‘objected to the Master Plan’ approved by the Minister (pars 55-56). The particulars identify letters sent by those entities to Essendon Airport Pty Ltd, but again do not set out the contents of those letters.

14 The Statement of Claim then pleads that QIC applied to the Administrative Appeals Tribunal (‘AAT’) for review of the decision of the Minister to approve the Master Plan and that entities associated with other Respondents effectively joined that application (pars 57-60). QIC is said to have objected to the approval of the draft Major Development Plan released for public comment pursuant to the Master Plan (pars 61-63) and to have applied to the AAT for review of the Minister’s decision to approve the Major Development Plan (pars 64-65).

15 The claim under s 45(2) of the TP Act is pleaded as follows (omitting particulars):

‘66. At or before the time of commencing the [LE Court]proceedings … the Property Council and each of Westfield Management and/or Westfield Holdings by itself or on behalf of or as part of the Westfield Group, GPT and/or Lend Lease by itself or on behalf of or as part of the Lend Lease Group, Centro, Stockland Management and/or Stockland Corporation by itself or on behalf of or as part of the Stockland Group and QIC (compendiously, as the case requires, the Arrangement Parties) arrived at an understanding or understandings, or made an arrangement or arrangements, which included provisions to:

(a) work together to achieve the business objectives of the members of the SCCA, including to prevent or hinder the approval, development or operation of competitive retailing formats including outlet centres; and/or

(b) promote a “retail hierarchy”, including a “metropolitan centres policy” whereby retail centres, including outlet centres, may only be developed at recognised centres of population and commerce with public transport links, being locations which are zoned for commercial and retail use; and/or

(d) oppose the approval, development and operation of outlet centres or facilities containing outlet centres, which may include outlet centres on airport land,

(together referred to herein as the Outlet Centre Opposition Arrangement).

67. By reason of the matters set out in paragraphs 37 to 64 [sic] above, each or one more of the Arrangement Parties gave effect to the Outlet Centre Opposition Arrangement by engaging in conduct either by itself or through the SCCA:

(a) to challenge the operation of the Homebush Centre; and/or

(b) to challenge the operation of one or more of DFO, Sanity, Perfumania, Mathers Shoes or Florentine Eyewear at the Homebush Centre; and/or

(d) to prevent or hinder the approval and/or development of the Brisbane Centre and/or

(e) to prevent or hinder the approval and/or development of the Essendon Centre.

68. Each or one more of:

(a) the Homebush Centre;

(b) the Liverpool Centre;

(d) the Essendon Centre;

operates or would operate in competition with regional centres owned and/or operated by one or more of the members of the SCCA.

69. The purpose, or alternatively the substantial purpose, of each or one or more of the provisions of the outlet Centre Opposition Arrangement is a purpose to substantially lessen, prevent or hinder competition in:

(a) the Sydney retail tenancy market; and further or in the alternative

(b) the Brisbane retail tenancy market; and further or in the

alternative

(d) the Sydney retail centre services market; and further or in the alternative

(e) the Brisbane retail centre services market; and further or in the

alternative

(f) the Melbourne retail centre services market.

70. Each or one or more of the Arrangement Parties (including the Property Council for a period not less than that in which it proposed to bring and was party to the LEC Proceedings) has in the circumstances pleaded in paragraphs 66 to 69 above:

(a) made an arrangement or arrived at an understanding in

contravention of s 45(2)(a)(ii) of the [TP Act].

(b) given effect to an arrangement or understanding in

contravention of s 45(2)(b)(ii) of the [TP Act].’

16 The particulars to par 66 of the Statement of Claim state that DFO is unable to say where the alleged arrangement or understanding was made or arrived at, but that it was in place from at least 2002. The particulars also state that the arrangement or understanding is expressed in or is to be inferred from certain documents and affidavits, none of which is in evidence or otherwise before me.

17 The particulars to par 69 state that the alleged purpose is to be inferred from the nature of the arrangement, the circumstances in which it was made and the likely effect of the arrangement on competition in the pleaded markets. These are said to include the matters pleaded in pars 16-64 and 67-68 and the fact that the consequence of the arrangement or understanding:

‘if it were successful would be to prevent or hinder the approval, development and operation of outlet centres’.

18 The defence referred to in the separate questions denies or does not admit pars 66-70 of the Statement of Claim. However, the defence admits, in whole or in part, many (although not all) of the allegations made in pars 37-65 of the Statement of Claim. For example, the defence admits that a company associated with Stockland made a submission objecting to the proposed amendment to the Liverpool LEP. The defence also admits that a company associated with Westfield objected to the proposed amendment, but does not admit that the objection was in ‘substantively the same terms’ as Stockland’s objection. Similarly, the defence admits that companies associated with Westfield and Lend Lease objected to the Essendon Master Plan, but does not admit that Westfield did so on the ground that the proposed development would severely affect the financial viability of its own nearby development.

19 The defence affirmatively pleads to DFO’s claim that the Respondents have contravened s 45(2) of the TP Act, as follows:

‘18. In answer to the whole of the… Statement of Claim, the… Respondents say that the conduct referred to in paragraphs 37 to 69 of the… Statement of Claim does not, as a matter of law, give rise to a contravention of either s 45 (2)(a)(ii) or s 45(2)(b)(ii) of the [TP Act].

Particulars

Sections 45(2)(a)(ii) and 45(2)(b)(ii) do not render unlawful efforts to persuade any of the branches of government (including courts and tribunals) on the interpretation, formulation and application of planning laws where the conducts consists of:

(i) commencing legal proceedings (paragraphs 37, 49 and 57);

(ii) making submissions in relation to proposed planning instruments (paragraphs 44, 45, 46 and 47); and

(iii) objecting to planning instruments (paragraphs 55 and 56).

19. The… Respondents further say that the conduct of seeking to persuade any of the branches of government (including courts and tribunals) on the interpretation, formulation and application of planning laws does not and could not have the effect, or likely effect, of substantially lessening, preventing or hindering competition in a market in that if (which is denied) a substantial lessening, preventing or hindering of competition in a market has or does occur, then it will have been the effect of an independent determination by the relevant government officer, authority, tribunal and/or court.

Constitutional Defence

20. Further, and in the alternative to paragraph 18, the… Respondents say that, if s 45 of the [TP Act] has the construction and operation alleged in paragraph 70 of the… Statement of Claim, then, as a matter of law:

(a) Freedom of communication about government or political matters and the right of access to courts and tribunals are each essential aspects of the system of government for which the Constitution provides;

(b) s 45 of the [TP Act] effectively burdens freedom of communication about government or political matters and the right of access to courts and tribunals in its terms, operation and effect;

(c) s 45 of the [TP Act] also has the effect of preventing or controlling communication upon political and governmental matters and the right of access to courts and tribunals in a manner which is inconsistent with the system of government for which the Constitution provides;

(d) s 45 of the [TP Act] must be read down so as not to prohibit any of the conduct referred to in paragraphs 37 to 69 of the … Statement of Claim, in order to conform to the requirements of the Constitution;

(e) In the alternative to clause (d) above, s 45 of the [TP Act] is invalid because of its failure to conform to the requirements of the Constitution.’

submissions

the respondents’ contentions

20 The Respondents submitted that even if it could be assumed that their pleaded conduct had the intended effect of substantially lessening competition in a market, such conduct:

· as a matter of construction is not rendered unlawful by s 45(2) of the TP Act; and

· in any event, can not be rendered unlawful by s 45(2) of the TP Act because of the:

‘constitutional requirements of freedom of speech in relation to federal, state and local government and freedom of access to federal and state courts and tribunals’.

21 Mr Jackman pointed out that DFO had complained, in effect, of the following conduct by the Respondents:

· commencing and maintaining proceedings in a State court;

· commencing and maintaining proceedings in a federal court;

· making submission to officers of local government;

· making submissions to officers of the executive branch of the federal government in relation to matters requiring the approval of the federal minister; and

· applications for review of decisions of a federal minister.

22 Mr Jackman submitted that s 45(2) of the TP Act could not have been intended to render unlawful the making of, or giving effect to, arrangements or understandings that are essentially designed to achieve their objectives through access to the legislative, executive and judicial branches of government. Otherwise, so he argued, members of an industry association could not lobby for changes in the law or take legal proceedings to enforce the law if the law, as changed or enforced, would have the effect of substantially lessening competition in a market. Thus s 45(2) should not be read as applying to the conduct alleged against the Respondents.

23 Mr Jackman acknowledged that s 45(2) of the TP Act is not confined to conduct ‘in trade or commerce’. Nonetheless, he submitted that s 45(2) cannot have been intended to bring political activity within the scope of the statutory prohibition. Even if the literal meaning of the words suggest such a construction, a ‘purposive’ approach to statutory construction lends to a contrary conclusion.

24 The Respondents further submitted that the TP Act should be construed so as not to interfere with existing fundamental common law rights or freedoms, notably freedom of speech and a citizen’s right to unimpeded access to the courts. Mr Jackman accepted that the interpretation advanced by DFO would not ‘strictly speaking’ alter the jurisdiction of any court. Even so, that interpretation:

‘could potentially see the commencement and continuation of proceedings by the Respondents … punished with heavy financial penalties’.

He argued that Parliament should be required to employ unambiguous language before s 45(2) of the TP Act could be given such an interpretation.

25 The Respondents’ constitutional argument commenced with the proposition that the implied freedom of political communication developed in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (‘Lange’), applies to:

· communications at all levels of government, including local government; and

· communications with the executive arm of government, including communications relating to the affairs of statutory authorities.

26 In addition, so the Respondents argued, a constitutional right of access to federal courts is either an aspect of the Lange principle or is to be implied independently from Chapter III of the Constitution. A constitutional right of access to State courts is a ‘logical and necessary extension’ of the Lange principle to Chapter III courts and is to be implied independently from the federal nature of the Constitution. Accordingly, federal legislation can no more prohibit a litigant, whether suing alone or with the support of like-minded groups, from bringing an action under State law in a State court than it can prohibit the exercise by a State court of its jurisdiction.

27 The Respondents submitted that par 66 of the Statement of Claim alleges conduct that is protected by the first limb of Lange: that is, DFO seeks to invoke s 45(2) of the TP Act in a manner that effectively burdens the freedom to communicate about government or political matters. This is so because the subject matter of the alleged arrangement was the making of representations or the taking of proceedings in relation to government approval for the development and operation of outlet centres. Similarly, the Respondent argued that DFO relies on s 45(2) of the TP Act in a manner that burdens the implied freedom of access to State and federal courts and tribunals.

28 The Respondents acknowledged that the Lange test does not invalidate a law, even if it burdens the freedom of communications on political or governmental matters, unless the impugned law burdens communications in a manner that is inconsistent with the system of representative government enshrined in the Constitution. Mr Jackman submitted that a law which:

‘burdens political communication and access to courts and tribunals impermissibly under the first limb of Lange, and which has the object of enhancing competition (such as the [TP Act]), will be invalid because the enhancement of competition is a social or economic objective unrelated to the system of government provided for by the Constitution’.

Accordingly, so Mr Jackman contended, s 45(2) of the TP Act must beread down so as not to proscribe the making of an arrangement or understanding of the kind alleged in the Statement of Claim, or conduct of the kind alleged to have given effect to the arrangement. Unless s 45(2) can be read down in this way, it infringes the implied freedoms of communication and access to the courts and, to that extent, is invalid.

DFO’S CONTENTIONS

29 Mr Bannon pointed out on behalf of DFO that the arrangement or understanding pleaded in par 66 of the Statement of Claim is expressed in broad terms and is not limited to conduct of the kind embraced by the ‘freedoms’ relied on by the Respondents. He submitted that even if the Respondents’ arguments otherwise have merit, their pleaded defences can not defeat the claim based upon the making of an arrangement or understanding in contravention of s 45(2)(a)(ii) of the TP Act. Accordingly, he contended that the Respondents’ submissions should be taken as limited to DFO’s case pleaded under s 45(2)(b)(ii) of the TP Act.

30 Mr Bannon further submitted that the separate questions cannot be answered without reference to additional facts or evidence. He said that the question of the proper construction of s 45(2)(b)(ii) of the TP Act can only be determined once a clear and complete understanding has been obtained of the Respondents’ conduct. Similarly, the application of the implied freedoms relied upon by the Respondents depend upon the findings of fact that ultimately will be made in the proceedings. It followed, so he argued, that the Court should decline to answer the separate questions.

31 Mr Bannon submitted that, in any event, the Respondents’ arguments are unsound. He contended that there is simply no textual justification for departing from the ordinary meaning of the words used in s 45(2) of the TP Act so as to create exceptions for conduct of the kind identified by the Respondents. According to Mr Bannon, the obstacles facing the Respondents’ contentions are made clear by the difficulty they have in defining the activities that are said to fall outside the scope of s 45(2) of the TP Act. Mr Bannon also submitted that the Respondents’ argument founded on the implied freedom of political communication should be rejected because the freedom has nothing to say about an anti-competitive arrangement or understanding, or anti-competitive conduct giving effect to such an arrangement or understanding.

32 First, the communications by which the arrangement or understanding was allegedly made and to which it was given effect were not about government or political matters within the meaning of the implied freedom recognised and restated by the High Court in Lange. Mr Bannon accepted that the freedom is capable of applying to communications relating to local or State matters, but only if they have a bearing on matters of government or political decision-making at a commonwealth level. Mr Bannon also accepted that communications about the use of those airports that are vested in the Commonwealth might constitute communications about government or political matters in the relevant sense. But the mere fact that the pleadings refer to airports, so he argued, does not justify a conclusion that the conduct alleged against the Respondents is protected by the implied freedom of communication.

33 Secondly, even if the Respondents’ alleged conduct related to government or political matters, the fact that the Respondents are corporations excludes the conduct from the protection of the implied freedom. That freedom protects communications by corporations only to the extent necessary to ensure that the freedom of citizens to engage in discussion and obtain information about political matter is preserved and protected.

34 Thirdly, s 45(2) of the TP Act imposes no burden on the Respondents’ freedom of communication because each of the Respondents is free to make whatever communications it wants without any inhibition imposed by s 45(2). According to Mr Bannon, the provision is concerned (relevantly) only with making or arriving at an arrangement or understanding containing a provision having a particular anti-competitive purpose or likely effect and with conduct giving effect to such a provision.

35 Fourthly, if (contrary to DFO’s submissions) the Respondents’ communications fell within the first limb of the test stated in Lange and if s 45(2) of the TP Act burdens communications protected by the implied freedom, the impugned provisions are nonetheless valid because they satisfy the Lange requirement that they must be reasonably appropriate and adapted to serve a legitimate end. The only limitation imposed by s 45(2) on the Respondents’ freedom is the prohibition on making or giving effect to a particular, narrowly defined type of arrangement or understanding. The language in s 45(2) of the TP Act therefore addresses only anti-competitive combinations, not individual actions. The legislation seeks to secure a legitimate government end, namely the protection of society from the harmful consequences of anti-competitive contracts, arrangements or understandings. It does not prevent an individual corporation communicating with the public or with governments or public authorities on any subjects the corporation chooses.

36 Finally, DFO submitted that there is no general principle that litigants are free to commence or maintain proceedings in federal courts. Although Parliament cannot restrict the original jurisdiction of the High Court in respect of matters identified in s 75 of the Constitution, it is free to define the remainder of the High Court’s jurisdiction as it sees fit. Moreover, Parliament is under no obligation to create or maintain federal courts other than the High Court. There is therefore no impediment to Parliament limiting the range of persons or the circumstances in which persons may invoke the jurisdiction of the federal courts.

reasoning

the legislation

37 Section 45(2) of the TP Act relevantly provides as follows:

‘(2) A corporation shall not:

(a) make a contract or arrangement, or arrive at an understanding, if:

(i) …; or

(ii) a provision of the proposed contract, arrangement or understanding has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or

(b) give effect to a provision of a contract, arrangement or understanding, whether the contract or arrangement was made, or the understanding was arrived at, before or after the commencement of this section, if that provision:

(i) …; or

(ii) has the purpose, or has or is likely to have the effect, of substantially lessening competition.’

38 Section 4 of the TP Act defines ‘give effect to’, in relation to a provision of a contract, arrangement or understanding, to include:

‘do an act or thing in pursuance of or in accordance with or enforce or purport to enforce’.

the pleaded claim relating to an arrangement or understanding

39 The Statement of Claim alleges that the Respondents have contravened both ss 45(2)(a)(ii) and 45(2)(b)(ii) of the TP Act. It is said (par 70) that in the circumstances pleaded in pars 66-69, each of the Respondents has made an arrangement or arrived at an understanding in contravention of s 45(2)(a)(ii) and has given effect to an arrangement or understanding in contravention of s 45(2)(b)(ii). (Nothing turns for present purposes on the fact that par 70 does not mirror precisely the prohibition in s 45(2)(b)(ii), which is concerned with giving effect to a provision of a contract, arrangement or understanding.)

40 The structure of the Statement of Claim is somewhat curious. Paragraphs 37-65 outline the various actions taken by the Respondents to prevent particular retail developments or to oppose proposed planning changes that would permit or facilitate new outlet centres. Paragraph 66 alleges that at the time of or before commencing the LE Court proceedings on 7 November 2002, the Respondents had arrived at an understanding or made an arrangement which included four provisions, namely to:

‘(a) work together to achieve the business objectives of the members of the SCCA, including to prevent or hinder the approval, development or operation of competitive retailing formats including outlet centres; and/or

(d) oppose the approval, development and operation of outlet centres or facilities containing outlet centres, which may include outlet centres on airport land’.

Paragraph 67 then alleges that by reason of the matters in pars 37-65, each of the Respondents gave effect to the arrangement or understanding. (I assume that the internal reference in par 67 of the Statement of Claim to par 64 is intended to be to par 65.)

41 If the Statement of Claim had pleaded the material facts supporting the claims under s 45(2) of the TP Act in chronological order, it would have first alleged the arrangement or understanding made or arrived at by the Respondents. It would then have identified the conduct said to have given effect to the arrangement or understanding. By reversing the chronological order of events, the Statement of Claim perhaps invites a reading which confines the scope of the alleged arrangement or understanding to the precise conduct pleaded in pars 37-65. It is this reading of the Statement of Claim that provides the foundation for the Respondents’ argument that DFO’s claim, insofar as it is based on s 45(2)(a)(ii) of the TP Act, is doomed to fail.

42 While the structure of the Statement of Claim may invite the interpretation adopted by the Respondents, I do not think par 66 of the Statement of Claim should be read as narrowly as the Respondents’ submissions assumed. Paragraph 66 simply pleads an understanding or arrangement containing the four provisions set out earlier ([40]) above). None of these provisions, as pleaded, is limited to the conduct by which the Respondents are alleged to have given effect to the understanding or arrangement. For example, the first of the pleaded provisions is said to require the parties to the arrangement or understanding to achieve the ‘business objectives of the members of the SCCA’. The ‘business objectives’ are not the subject of evidence, but are said to include preventing or hindering the approval, development or operation of competitive retailing formats. There are many ways in which the SCCA’s business objectives, specifically preventing or hindering competitive retailing formats, might be achieved. They are not necessarily confined to the particular steps allegedly taken by the Respondents to give effect to the pleaded arrangement or understanding. Nor are they necessarily limited to the categories of conduct identified by the Respondents as the subject of complaint by DFO in the Statement of Claim. Similarly, there are many ways in which the parties to an arrangement might choose to promote a ‘retail hierarchy’ or to oppose approval, development and operation of outlet centres on industrial land. They, too, are not necessarily limited to the categories of conduct identified in the Statement of Claim as having given effect to the pleaded arrangement or understanding.

43 It follows that even if the Respondents’ arguments are sound, they do not provide a ‘valid and complete defence’ to the Statement of Claim insofar as it pleads a cause of action founded on s 45(2)(a)(ii) of the TP Act. The provisions of the pleaded arrangement or understanding contemplate conduct that may travel beyond that which is protected by the constitutional principles or ‘fundamental freedoms’ on which the Respondents rely. Whether the evidence supports the allegations cannot be determined at this stage of the proceedings. The pleaded cause of action founded on s 45(2)(a)(ii) of the TP Act must therefore proceed to trial.

the characterisation question

44 The Respondents’ contentions face another difficulty. It is one which reflects the dangers of posing separate questions for determination.

45 The first step in dealing with an argument that legislation is ultra vires the Constitution is to construe the legislation: Coleman v Power (2004) 209 ALR 182, at [3], per Gleeson CJ; at [306], per Heydon J. The reason for this was explained by Kirby J in R v Hughes (2000) 202 CLR 535, at [66]:

‘In considering the validity or otherwise of the legislation giving effect to co-operation between the units of the federation (federal, State and Territory) said to be invalid, it is necessary, at the threshold, to elucidate the meaning and operation of the provisions in question. This is an elementary point … If particular provisions claimed to be unconstitutional have no operation in the circumstances of the matter before the Court, it is irrelevant, and therefore unnecessary, to determine their validity. Constitutionality is not normally decided on a hypothesis inapplicable to the resolution of a particular dispute. If, upon a true construction of the legislation, it operates in a way that does no offence to the language and structure of the Constitution, it is irrelevant that, had it been construed in a different way, it might have done so. This Court will not answer constitutional questions on the basis of assumptions that have no practical or legal consequence for the case in hand.’

46 The Respondents recognised this principle and made submissions which seek to read down s 45(2) of the TP Act in order to avoid any question of possible invalidity. However, the submissions were based on the proposition that the legislation could not have been intended to interfere with certain fundamental rights and freedoms. The Respondents did not direct attention in argument, except in passing, to another question of construction which is identified in par 19 of the defence. That question is whether s 45(2) of the TP Act applies to a provision of an arrangement or understanding which requires or contemplates conduct that could lead to the substantial lessening of competition in a market, but only in consequence of a lawful determination by a court, tribunal or planning authority.

47 As Mr Jackman pointed out, the Respondents are alleged to have given effect to the pleaded arrangement or understanding by attempting to persuade courts, tribunals or planning authorities to exercise their powers in a manner favourable to the Respondents’ interests. The conduct alleged against the Respondents, of itself, could not have substantially lessened competition in any of the pleaded markets. By that I mean that the conduct alleged against the Respondents is limited to instituting and maintaining legal or administrative proceedings, or attempting to persuade planning authorities to take or refrain from a particular course of action. Any effect on competition in a particular market can occur only after the relevant decision-maker has made a lawful judicial, administrative or legislative determination.

48 In my view, it is arguable that s 45(2)(a)(ii) of the TP Act is not intended to prohibit the making of an arrangement or understanding requiring the parties to attempt to persuade a judicial, administrative or legislative body to make a lawful determination which, in turn, might result in the substantial lessening of competition. Similarly it is arguable that conduct giving effect to such an arrangement or understanding (or a provision of such an arrangement or understanding) is not within the prohibition in s 45(2)(b)(ii). The argument does not depend on the issues raised by the separate questions. Rather it involves what can be described as a question of characterisation. If, for example, a group of traders agree to institute legal proceedings against a large competitor seeking orders closing down its allegedly illegal commercial activities, does any provision of the agreement have the purpose or likely effect of substantially lessening competition? Or is the purpose of the agreement, in the absence of any allegation of bad faith against the parties, simply to commence and maintain legal proceedings in order to enforce the law? Are the two alternatives mutually exclusive?

49 The Respondents did not debate the characterisation issue in argument on the separate questions. They chose not to refer to par 19 of the defence in those questions. Presumably for forensic reasons, DFO also preferred to defer any argument on the characterisation issue until later in the proceedings.

50 But unless and until this issue is resolved it seems to me inappropriate to determine, as a separate question, the constitutional issue posed by separate question (b). That is because DFO, even if establishes the primary facts alleged in the Statement of Claim, may not be able to rely on either s 45(2)(a)(ii) or s 45(2)(b)(ii) of the TP Act to obtain the relief it seeks. It other words, independently of any constitutional issue, s 45(2)(b)(ii) of the TP Act, as a matter of construction, may not apply to the facts alleged by DFO. If that is the case, it is unnecessary and therefore inappropriate to determine the constitutional issue raised by DFO.

51 I should add that the question of construction raised by par 19 of the defence has a direct bearing on some of the examples given by the Respondents to support their arguments on the separate questions. For example, the Respondents pointed to what they said was the absurdity of a construction of s 45(2) which would prohibit members of trade associations from lobbying parliamentarians, or from making submissions to policy inquiries, in an effort to promote legislation which would have the effect of restricting competition. The ‘characterisation’ issue raised by par 19 of the defence, depending on the true construction of s 45(2) of the TP Act, may provide an answer to the illustrations given by the Respondents in argument.

52 It follows that separate question (b) should be answered ‘Inappropriate to answer’.

THE CONSTITUTIONAL ISSUE: implied freedom of communication

53 If, contrary to the view I have expressed, it is appropriate to address the constitutional validity of s 45(2)(b)(ii) of the TP Act, the Respondents face yet a further obstacle. As I have noted, the Statement of Claim alleges that certain conduct gave effect to the provisions of the pleaded arrangement or understanding, in contravention of s 45(2)(b)(ii). The conduct is said to include:

· instituting and maintaining proceedings in the LE Court seeking orders against DFO and others restraining them from carrying on an allegedly prohibited development at the Homebush Centre; and

· making representations to the Liverpool Council opposing a proposed amendment to the Liverpool LEP that would have allowed a retail development at the Liverpool Shopping Centre.

On the face of it, it is difficult to see how this conduct can be brought within the scope of the implied freedom of political communication.

54 The judgment in Lange laid down (at 567-568) a two-limb test for determining the validity of a law of a Commonwealth, State or Territory Parliament which is said to infringe the implied freedom of communication. As slightly modified in Coleman v Power, (at [93], per McHugh J; at [196], per Gummow and Hayne JJ), the test is as follows:

‘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’.

55 In considering whether the first limb of Lange is satisfied, it is necessary to consider the rationale for the implied freedom. In Lange itself, a unanimous High Court held (at 558) that the effect of the Constitution is to ensure that the Parliament of the Commonwealth is representative of the people of the Commonwealth. In particular, the Court emphasised (at 557-558) the significance of s 1 of the Constitution (vesting the legislative power of the Commonwealth in the Parliament); s 7 (providing for the election of senators directly chosen by the people of each State); and ss 24 and 25 (providing for the election of members of the House of Representatives directly chosen by the people of the Commonwealth). Their Honours concluded (at 559), that the freedom of communication on matters of government and politics ‘is an indispensable incident of that system of representative government which the Constitution creates’.

56 The Court acknowledged (at 560) that the Constitution does not expressly mention freedom of communication. Nonetheless, their Honours said that it could not be doubted that the elections for which the Constitution provides were intended to be free elections. They must afford electors a ‘true choice’, including the opportunity to gain an appreciation of the available alternatives. It follows (at 560) that:

‘ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors. Those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power’.

57 The Court stated (at 561) that the freedom, if it is to serve the purposes of ss 7 and 24 and related sections of the Constitution, cannot be confined to the election period. If it were otherwise:

‘the electors would be deprived of the greater part of the information necessary to make an effect choice at the election’.

58 Their Honours also considered (at 561) that implications can be drawn from other provisions in the Constitution. Section 128 (providing for amendment of the Constitution after approval of a proposal at a referendum) implies a limitation on legislative and executive power to deny electors access to information relevant to a vote at a referendum. Similarly:

‘those provisions which prescribe the system of responsible government necessarily imply a limitation on legislative and executive power to deny the electors and their representatives information concerning the conduct of the executive branch of government throughout the life of a federal Parliament. Moreover, the conduct of the executive branch is not confined to Ministers and the public service. It includes the affairs of statutory authorities and public utilities which are obliged to report to the legislature or to a Minister who is responsible to the legislature’.

59 Their Honours stated (at 561), however, that the freedom of communication which the Constitution protects is not absolute. In particular:

‘It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution’.

This is an important qualification.

60 The nature of the communications protected by the implied freedom was addressed by the High Court in Coleman v Power. In that case, the appellant was convicted of using insulting words in a public place, in contravention of a Queensland statute. The allegedly insulting words were: ‘This is [X] a corrupt police officer’. They were directed by the appellant at a State police officer. The question was whether the Queensland statute was invalid in its application to the appellant’s conduct by reason of the implied freedom of political communication.

61 The respondents in Coleman v Power conceded before the High Court that the impugned provision was capable of burdening political communication in the manner described in the first limb of the Lange test. As McHugh J noted (at [76]-[77]), this concession involved two matters. First, that the Constitution may invalidate a State law that restricts, without justification, a political communication concerning the functioning of representative and responsible government at federal level. Secondly, that the words used by the appellant concerned matters within the freedom of communication that the Constitution protects, even though the words concerned a State police officer. It is the second aspect of the concession that is relevant to the present case.

62 McHugh J considered (at [80]) that this aspect of the concession had been correctly made. In his view, the conduct of State police officers is relevant to the system of representative and responsible government set up by the Constitution because State police officers are involved in the administration and enforcement of both federal and State criminal law. For example, State officers are included within the statutory definition of ‘investigating official’ for the purposes of investigating Commonwealth offences. McHugh J said that:

‘Public evaluation of the performance of federal ministers … may be influenced … by the manner in which state police officers enforce federal law and investigate federal offences. Allegations that members of the Queensland police force are corrupt may reflect on federal ministers as well as the responsible state ministers. Such allegations may undermine public confidence in the administration of the federal as well as the state, criminal justice system’.

63 Kirby J took a similar approach. His Honour considered that the subject matters of communication to which the implied freedom extends ‘are not narrowly confined solely to federal concerns’. His Honour quoted a passage from Lange where the Court said (at 571-572) that:

‘the discussion of matters at State, Territory or local level might bear on the choice that the people have to make in federal elections or in voting to amend the Constitution, and on their evaluation of the performance of federal Ministers and their departments. The existence of national political parties operating at federal, State, Territory and local government levels, the financial dependence of State, Territory and local governments on federal funding and policies, and the increasing integration of social, economic and political matters in Australia make this conclusion inevitable’.

64 Kirby J held that, on this basis, even communications that principally or substantially concern State governmental or political issues may constitute communications about government or political matters for the purposes of the Lange test. He pointed to the increasingly integrated nature of law enforcement in Australia and the national concern about official (specifically police) corruption and the proper governmental responses to these concerns. By reason of these matters, as a matter of ‘potentiality’, the Queensland statute had the practical effect of burdening the protected freedom of communication.

65 Gummow and Hayne JJ thought that it was unnecessary to decide the point. However, their Honours said this (at [197]):

‘Given the extent to which law enforcement and policing in Australia depends both practically and structurally (through bodies like the Australian Crime Commission) upon close cooperation of federal, state and territory police forces, there is evident strength in the proposition that an allegation that a state police officer is corrupt might concern a government or political matter that affects the people of Australia’.

66 Neither Gleeson CJ nor Heydon J expressed a view as to the correctness of the concession made by the respondents in Coleman v Power. Callinan J seemed to think that the concession was ill-founded. His Honour observed (at [293]) that the Queensland statute, on its face, bore:

‘not the slightest intention to operate upon, or in relation to federal institutions, elections or referenda, or to interfere with the operation of the Constitution’.

67 The High Court has most recently considered the first limb of Lange in APLA Ltd v Legal Services Commissioner (NSW) (2005) 219 ALR 403. In that case, personal injuries lawyers challenged the validity of regulations made under the Legal Profession Act 1987 (NSW). The regulations prohibited the advertising of legal services relating to personal injuries damages claims. One ground for the challenge was that the regulations infringed the implied constitutional freedom of communication on government or political matters.

68 The challenge on this ground failed, essentially on the basis that the regulations controlled an activity - advertising a particular form of legal services – rather than political discussion about whether the activity should be regulated in a particular manner: at [380], per Hayne J, citing Cunliffe v The Commonwealth (1994) 182 CLR 272, at 329, per Brennan J. Thus Gleeson CJ and Heydon J held (at [28]) that the regulations were not aimed at preventing discussion of public policy issues, but merely the marketing of professional services. See also at [70]-[71], per McHugh J; at [218]-[220], per Gummow J.

69 While the members of the Court had no occasion to consider the application of the Lange principle to communications about State or local government issues, several of the judgments reiterated the limitations on the scope of the implied freedom. Gleeson CJ and Heydon J pointed out (at [27]) the Court was

‘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. The nature and extent of the freedom is governed by the necessity which requires it’. (Emphasis added.)

See too, at [69], per McHugh J; at [450]-[452], per Callinan J.

70 There is still some uncertainty after Coleman v Power and APLA as to which communications can be regarded as ‘about government or political matters’ for the purposes of the Lange test. It is, however, clear that if a communication is to come within the first limb of the Lange test it must concern the system of representative and responsible government for which the Constitution provides. A communication on a matter that bears neither on the choices that people have to make in federal elections or referenda, nor on their evaluation of the performance of the executive branch of the federal Government, is not a communication about government or political matters within the meaning of the Lange test. (I leave to one side communications about the federal judiciary: cf APLA, at [66], per McHugh J).

71 Coleman v Power shows that a communication about State officials or authorities may be sufficiently related to the system of representative and responsible government at federal level to come within the first limb of Lange. The case also strongly suggests that a narrow view is not to be taken of the concept of ‘government or political matters’ when considering the scope of the implied freedom of communication. This is demonstrated by the willingness of a majority of the High Court to accept that a communication alleging corruption on the part of Statepolice officers has a sufficient federal ‘connection’ for the purposes of the implied freedom. Nonetheless, the majority in Coleman v Power were clearly influenced by the role played by State police officers in the administration of the federal justice system. Each of the majority judgments pointed to the fact that police corruption – albeit at State level - might have electoral and political consequences at federal level. What was said to be the integrated nature of law enforcement in Australia was therefore a key element in the reasoning.

72 Even on a broad view of the Lange principle, it is difficult to see how a communication with a local government planning authority concerning a proposed local planning decision (such as an amendment to a local environmental plan or a development approval), without more, can be said to relate to the system of representative and responsible government established by the Constitution. There is nothing in the pleadings to indicate how a decision by Liverpool Council concerning the Liverpool Shopping Centre could bear on the judgment electors have to make about the performance of their elected federal representatives. Nor was any such link suggested in argument. No doubt there is much to be said as a matter of policy for granting the same protection to communications on State or local government issues as Lange grants to communications relating to federal matters. That, however, is not the current law. If it were, there would have been no need for the Court in Coleman v Power to analyse the link between the communications about police corruption and electors’ assessment of federal political issues.

73 Mr Jackman, in an attempt to address this difficulty, relied on Austin v Commonwealth (2003) 215 CLR 185. In that case, a majority of the High Court held that a tax on notional contributions to defined benefits pension schemes for State judges was invalid, on the ground that it impaired the exercise by the States of their constitutional functions. As I understood the Respondents’ argument, it was that planning or zoning responsibilities, like the State judicial system, constitute essential functions of the States which are conferred on them by the Constitution. It follows, so Mr Jackman said, that a communication concerning planning or zoning matters is within the Lange principle and thus protected.

74 Austin however, was not concerned with the implied freedom of communication. In my view, it has nothing to say about the scope of that freedom. The fact that a particular activity may be regarded as an essential branch of State government for the purposes, for example, of the doctrine of ‘State immunity’ does not bring communications on that topic within the Lange principle.

75 For these reasons, in my opinion, par 20 of the defence does not raise a ‘valid and complete defence’ to DFO’s cause of action founded on s 45(2)(b)(ii) of the TP Act. If (contrary to my view) question (b) is appropriate to answer, the answer would be:

In relation to the cause of action founded on s 45(2)(b)(ii) of the TP Act, no.

THE GENERAL CONSTRUCTION QUESTION

76 The Respondents relied on general principles of construction to support their contention that s 45(2) of the TP Act is not intended to apply to the conduct which DFO asserts gave effect to the alleged anti-competitive arrangement or understanding.

77 As I have explained, having regard to the manner in which DFO’s case is pleaded I do not think the construction argument can assist the Respondents in relation to DFO’s cause of action founded on s 45(2)(a)(ii) of the TP Act. It remains, however, to consider whether the argument provides a complete answer to DFO’s pleaded claim under s 45(2)(b)(ii) of the TP Act. AsDFO suggested, the Respondents’ argument seemed to be that s 45(2)(b)(ii) cannot be read as applying to activities variously described in their written submissions as

· lobbying and conducting legal proceedings;

· giving effect to arrangements or understandings designed to achieve their objectives through the use of legislative, executive and judicial branches of government;

· political activity; and

· the commencement and maintenance of proceedings in courts.

78 It can be accepted, as a general proposition, that legislation will not be construed as abrogating or curtailing fundamental rights, freedoms or immunities in the absence of clear and unambiguous language: Coco v The Queen (1994) 179 CLR 427, at 437, per Mason CJ, Brennan, Gaudron and McHugh JJ. Thus a court will not readily construe legislation in a manner which abrogates or curtails freedom of expression, especially the freedom to criticise public bodies: Brown v Members of the Classification Review Board (1998) 82 FCR 225, at 234-235, per French J. Similarly, a court will require clear language before construing legislation as intended to deny a person access to the courts to such relief for wrongs done to him or her: In re Boaler [1915] 1 KB 21, at 36-37, per Scrutton J; Commonwealth Trading Bank v Inglis (1974) 131 CLR 311, at 315-316, per Barwick CJ and McTiernan J; Johnson v Director-General of Social Welfare (Victoria) (1976) 135 CLR 92, at 97, per Barwick CJ (with whom Stephen and Mason JJ agreed).

79 One problem in applying these general principles of construction in the context of the separate questions is that the Respondents’ argument is closely related to the issue of construction identified in par 19 of the defence. As I have explained, the separate questions do not identify that issue as one for resolution in the present proceedings. The construction issue identified in par 19 of the defence may well influence the extent (if any) to which s 45(2) of the TP Act can be said to affect fundamental rights and freedoms.

80 In any event, if s 45(2)(b)(ii) of the TP Act, as a matter of language, applies to the conduct by which the Respondents are alleged to have given effect to the pleaded anti-competitive agreement or understanding, I do not think that the provision abrogates or significantly curtails fundamental rights, freedoms or immunities.

81 So far as freedom of expression is concerned, s 45(2)(b)(ii) in no way curtails the freedom of each Respondent to express its views on the desirability of limiting the growth of outlet centres or indeed on any other topic. Subject to the general law, each Respondent is perfectly free to express its views as it sees fit and to make representations to any government agency, planning authority or decision-maker as it sees fit. The only relevant prohibition is that it must not give effect to a provision of an anti-competitive arrangement or understanding to which it is a party.

82 The Respondents accepted that the application of s 45(2)(b)(ii) of the TP Act to their conduct would not ‘strictly speaking’ alter the jurisdiction of any court. However, as I have noted Mr Jackman submitted that DFO’s construction could ‘potentially see the commencement and continuation of proceedings … punished with heavy financial penalties’.

83 Section 45(2)(b)(ii) of the TP Act prohibits a corporation from giving effect to a provision of an arrangement or understanding that has the purpose or likely effect of substantially lessening competition. The potential detriment identified by the Respondents can arise only if the corporation has entered into an anti-competitive arrangement or understanding and has given effect to a provision of that arrangement or understanding by commencing or maintaining proceedings. On DFO’s construction of s 45(2)(b)(ii), there is no barrier to any of the Respondents commencing or maintaining any proceedings they consider appropriate, provided that they do not so pursuant to, or in accordance with, an anti-competitive arrangement or understanding. Section 45(2)(b)(ii) certainly imposes no limitation on the jurisdiction or power of a court to grant relief in any such proceedings.

84 It is preferable at this stage of the litigation not to express a final view as to whether s 45(2)(b)(ii) of the TP Act applies to the conduct alleged against the Respondents. It is enough to say that if the provision otherwise does apply, it will not be prevented from doing so by the matters pleaded in par 18 of the defence.

the airport allegations

85 The allegations in the Statement of Claim are not confined to conduct which can be said to relate purely to State or local government issues. Clearly enough, communications relating to developments on airport land (which is presumably vested in the Commonwealth) may raise issues of federal concern for the purposes of the implied freedom of communication. However, the separate questions, as settled, ask whether the defences pleaded in pars 18 and 20 provide a valid and complete defence to the whole of, or to any cause of action pleaded in, the Statement of Claim.

86 Even if the Respondents’ arguments have force as applied to conduct or communications concerning developments on airport land, at least some of the remaining allegations in the Statement of Claim are unaffected by these arguments. That is, the Respondents’ arguments, for reasons that have been explained, do not provide a valid and complete defence to the whole of, or to any cause of action pleaded in, the Statement of Claim. I do not interpret the separate questions as requiring me to consider whether each category of relief sought by DFO is available to it on the facts pleaded.

implications drawn from chapter iii of the constitution

87 As I have noted, the Respondents relied on a right of access to federal courts as an implication drawn from Chapter III of the Constitution. Reference was made by Mr Jackman to observations made by members of the High Court in the course of argument in APLA, the decision in which was handed down after the argument before me was completed.

88 The judgments in APLA expressa variety of views as to the nature and scope of any implied right of communication on access to be drawn from Chapter III: see at [81], [86], per McHugh J; at [358]-[359] per Kirby J; and compare at [35] per Gleeson CJ and Heydon J; at [223]-[225], [242] per Gummow J; at [384], per Hayne J; at [473] per Callinan J. It is unnecessary for the purposes of addressing the separate questions to express a view on how any implications derived from Chapter III might apply in the circumstances of the present case.

conclusion

89 I propose to give the following answers to the separate questions:

Question: Assuming the facts as alleged in the Second Further Amended Statement of Claim are established, does the First to Eighth Respondents’ Defence to the Second Further Amended Statement of Claim based on the construction and operation of s 45 of the [TP Act](being the matter pleaded in para 18 of the Defence filed 15 July 2005) raise a valid and complete defence to the whole of, or to any cause of action pleaded in, the Second Further Amended Statement of Claim?

Answer: (i) Insofar as the Statement of Claim pleads a cause of action founded on s 45(2)(a)(ii) of the TP Act, no, but this does not necessarily mean that s 45(2)(a)(ii) applies to the conduct alleged against the Respondents.

(iii) Insofar as the Statement of Claim pleads a cause of action founded on s 45(2)(b)(ii) of the TP Act, no, but this does not necessarily mean that s 45(2)(b)(ii) applies to the conduct alleged against the Respondents.

matter pleaded in para 20 of the Defence filed 15 July 2005) raise a valid and complete defence to the whole of, or to any cause of action pleaded in, the Second Further Amended Statement of Claim?’

Answer: Inappropriate to answer.

I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated: 20 October 2005

Counsel for the applicant:	Mr A Bannon SC with Mr R Lancaster

Solicitors for the applicant:	Gilbert + Tobin

Counsel for the first to eighth respondents:	Mr I Jackman SC with Mr J Hewitt

Solicitors for the first to eighth respondents:	Speed and Stracey Lawyers

Solicitors for the ninth respondent:	Freehills

Date of hearing:	22 August 2005

Date of judgment:	20 October 2005

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