'Utoikamanu v Lali Media Group Ltd [2003] TOCA 6; CA 04 & 10 2003 (25 July 2003)

IN THE COURT OF APPEAL OF TONGA
NUKU'ALOFA REGISTRY

APPEAL NO. 4/03
APPEAL NO. 10/03

BETWEEN:

SIOSIUA 'UTOIKAMANU
First Appellant

THE KINGDOM OF TONGA
Second Appellant

AND:

LALI MEDIA GROUP LIMITED
First Respondent

FILOKALAFI 'AKAU'OLA
Second Respondent

'EAKALAFI MOALA
Third Respondent

AND

BETWEEN:

PRINCE 'ULUKALALA LAVAKA ATA
AND OTHERS
First Appellants

THE KINGDOM OF TONGA
Second Appellant

AND:

LALI MEDIA GROUP LIMITED
First Respondent

'EAKALAFI MOALA
Second Respondent

FILOKALAFI 'AKAU'OLA
Third Respondent

Coram: Burchett J
Tompkins J

Counsel: Mr. C. Hirschfeld and Mr. 'A. Kefu for the Appellants.
Dr. R. Harrison Q.C. for the Respondents.

Dates of hearing: 16 and 17 July 2003.
Date of judgment: 25 July 2003.

JUDGMENT OF THE COURT

[1] These two appeals were heard consecutively. Prior to the commencement of the hearings, orders made by the Chief Justice were read out in open court by which the hearing of the appeals by the Court of Appeal constituted by two members of the Court was authorised pursuant to the Court of Appeal (Constitution of Court) Rules 2003, a third member not being available within the meaning and application of those rules.

[2] The decisions brought into question by the appeals dealt with a number of points of constitutional and administrative law of great importance. However, notwithstanding the other issues involved, it has now become clear that the appeals turn ultimately on the effect of a fundamental provision of the Constitution of Tonga. It is therefore desirable to set this out at the very beginning of our judgment. Clause 7 of the Constitution reads, in terms virtually unchanged since King Tupou I gave Tonga its constitution in 1875:

"It shall be lawful for all people to speak write and print their opinions and no law shall ever be enacted to restrict this liberty. There shall be freedom of speech and of the press for ever but nothing in this clause shall be held to outweigh the law of defamation, official secrets or the laws for the protection of the King and the Royal Family".

[3] Before proceeding to consider the particular facts of these appeals, it is worth emphasizing, as Dr. Harrison Q.C. did in his submission by reference to John Stuart Mill's famous essay On Liberty, that the freedom of the press is not so much conferred on the press as on the people whom it sets at liberty to receive knowledge and opinions, and to debate matters concerning them freely. This has always been regarded as the hallmark of a free society, and the Constitution places Clause 7 at its forefront, as one of a group of clauses concerned with liberty. Those clauses are constitutional guarantees entrenched in a unique way, along with the structure of the monarchy and the nobility, by Clause 79, which states that amendments of the Constitution "shall not affect the law of liberty". Their place in the Constitution is explained in some detail in Touliki Trading v. Fakafanua & Kingdom of Tonga (No.2) [1996] Tonga LR 145 at 152-154; see also the speech of King Tupou I at the opening of the Parliament at which the Constitution was adopted in 1875.

[4] The Taimi 'o Tonga is a newspaper, issued twice weekly, which, since 1995, has been printed and published by the Respondent company in New Zealand, although it has an editor in Tonga where news is collected through a Tongan staff. Originally, the paper was founded in 1989 in Tonga, the Respondent Moala being its managing editor, and it is licensed to operate in Tonga. The Court was informed that it is the Kingdom's major newspaper, in terms of circulation. The Respondent 'Akau'ola manages the Tongan operations. The Respondent Moala, who is Tongan born but a citizen of the United States, and his wife, a Tongan, own the shares in the company, which is registered in New Zealand, where they reside, and he is its Chief Executive Officer.

[5] On 26 February 2003, the Chief Commissioner of Revenue gave notice by letter to Mr. 'Akau'ola asserting that the Taimi 'o Tonga was a prohibited import under s.34 of the Customs and Excise Act. On 27 February, a declaration was published in the Gazette, in reliance on s.35 and Schedule II of that Act, declaring:

"all Editions, Volumes or part thereof of the newspaper 'Taimi 'o Tonga' to be seditious or advocating violence, lawlessness or disorder".

When the letter of 26 February was received, having been given neither opportunity to make submissions nor any reasons for the Chief Commissioner's decision, the paper's lawyer wrote immediately to the Chief Commissioner pointing out both of these matters. After he had sent a further letter, he received a reply of the same date advising that the decision stood that the paper "is a prohibited import", and adding:

"The reasons for the decision made are according to Government policy and specifically that:

(i) It is a foreign paper owned and published by a foreigner.
(ii) It is a foreign concern with a political agenda.
(iii) The continuous standard of journalism is unacceptable."

[6] The powers which the Chief Commissioner thus purported to exercise are contained in sections 34 and 35 of the Customs and Excise Act:

"34. The Chief Commissioner of Revenue may ... by notice, prohibit the importation ... of any goods ...

35. (1) The goods, the particulars of which are set out in Part I of Schedule II, are prohibited ... to be imported ... save as thereby excepted.

(2) The King In Council may, from time to time, by order, amend Part I

of Schedule II."

Part I referred to in s.35 contains a paragraph 7:

"All books and any written or printed matter and sound or visual recordings which the Chief Commissioner shall declare to be seditious or which advocate violence, lawlessness or disorder."

[7] Three things should be noticed at once about ss. 34 and 35 of the Customs and Excise Act, even if it be assumed that Clause 7 of the Constitution is in no way offended by these sections, a matter which need not be decided in the appeals because of a concession yet to be mentioned. First, the sections refer to "goods", and do not appear to be apt to cover a blanket ban on future issues of a newspaper, the content of which cannot be known at the date of the notice under s.34 or declaration under s.35. Secondly, a declaration under s. 35 and para. 7 of Part I of the Schedule is a declaration, when made in respect of a newspaper, that its "printed matter" is seditious; that declaration obviously cannot be made of printed matter that does not yet exist, nor, whatever other limitations there may be, could it be made of existing printed matter that was not capable of bearing a seditious construction since the Chief Commissioner may not exercise his discretion capriciously. Thirdly, the final words of para.7, "or which advocate violence, lawlessness or disorder", do not confer a licence on any administrator to issue a declaration reflecting his own opinion, but are concerned with printed matter and recordings etc. which do in fact "advocate violence, lawlessness or disorder". If this part of the paragraph were relied on to justify the enforcement of the prohibition, the validity of the justification would necessarily depend on a proper understanding of what appears in the newspaper.

[8] In fact, it was ultimately accepted by counsel for the appellants that, neither in respect of the notice and declaration under ss. 34 and 35, nor in respect of later decisions to be referred to, did the Chief Commissioner or the other decision makers concerned ever rely on any issue of the Taimi 'o Tonga which actually advocated violence, notwithstanding that a matter specifically alleged by the Appellants and put forward, as will appear, as a reason for the prohibition of the newspaper was that it "is advocating and inciting violence". When pressed, the Appellants' witnesses could refer only to an article at page 10 of the 29 October 2002 issue of Taimi 'o Tonga which took the form of a journalist's interview of Professor Futa Helu, the well known founder of the 'Atenisi Institute. The interview begins with Professor Helu quoting from the philosopher Hegel on the subject of law and morality. It becomes clear, as one reads, that Professor Helu was expressing concern about the conduct of the Legislative Assembly, and particularly about the circumstances in which a number of members walked out of the Assembly while it was sitting. He said they "should walk out every time they see that their voice is not being heard". Then, in the last two sentences of a long article, he is reported as saying:

"Representatives used to quarrel in the House, then they petitioned, and put forward impeachments, and now they are walking out. I fear the next thing might be violence, as people are passionate (about these issues) and they don't want to be treated as nothing."

We have quoted this passage, and explained its context, because it was the one passage seized upon. But to do so is to demonstrate that not only was there no evidence of advocacy of violence; no reasonable view was open that violence was advocated, much less incited.

[9] Promptly after receiving the notice and declaration under ss.34 and 35, the Respondent company and the Respondent 'Akau'ola began, on 6 March 2003, proceedings (in which the Respondent Moala later joined) challenging the validity of the decisions involved on various grounds, including denial of natural justice and violation of the Constitution. The next day, 7 March, and it was conceded as a response to the proceedings (in effect to shore up the defence of them), an Order-in-Council was published in an Extraordinary Gazette Supplement:

"ORDER-IN-COUNCIL

IN EXERCISE of the powers vested by section 3 of the Prohibited Publications Act (Cap 54), His Majesty in Council hereby PROHIBITS the importation of any issue of the publication 'Taimi 'o Tonga' or part thereof."

The same day, the Attorney-General wrote to Mr. 'Akau'ola:

"I write to inform you that after due consideration on 7 March 2003, His Majesty in Council is of the opinion that the importation of the 'Taimi 'o Tonga' into the Kingdom is contrary to public interest. Therefore such importation is prohibited forthwith, and an Order-in-Council to that effect is being gazetted.

The matters considered by His Majesty in Council included the following:

1. The newspaper is involved in anti-attitude and propaganda against the Monarchy and the Tongan Government. It is committed to the removal of the present Institution of Government.
   
2. The newspaper has caused considerable disaster, confusion and disaffection against the Monarchy and the Government.
   
3. Over a period of time the newspaper produced articles on changes to the system of Government in this country. It has caused disaffection amongst the people.
   
4. The newspaper published seditious materials.
   
5. The newspaper is advocating and inciting violence, lawlessness and disorder.
6. Complaints from individuals and groups, and a report from the Special Branch of the Ministry of Police, were received.
   
7. The standard of journalism is unacceptable.
   
8. The newspaper is foreign owned and is published overseas and imported into the Kingdom."
   

The Respondents claimed that the Order-in-Council had been made in circumstances which denied them natural justice, since they had been given no opportunity to answer the allegations made on 7 March, and that it violated their constitutional rights. Other grounds of invalidity were also put forward.

[10] It is from the Chief Justice's decision on the notice, declaration and Order-in-Council that the first appeal comes. His Honour held all three to be invalid. So far as concerns the notice under s.34 and the declaration under s.35 of the Customs and Excise Act, it was ultimately conceded by counsel for the Appellants that there was no power to ban future editions of a newspaper by a notice or declaration under these sections. On this concession being made, it was accepted that the appeal must fail, to the extent that it is based on these sections. There were a number of other grounds for his Honour's decision, but in the circumstances, it is unnecessary to examine them all in this Court.

[11] That leaves the issue of the Order-in-Council. This was based on s.3 of the Prohibited Publications Act (Cap 54):

"3. (1) If His Majesty in Council is of the opinion that the importation of any publication is contrary to the public interest, he may prohibit the importation of such publication.

(2) In the case of a publication to which subsection (1) applies and which is issued periodically, or in parts or numbers at intervals, whether regular or irregular, His Majesty in Council may prohibit the importation of any part or future issue thereof.

(3) Prohibition shall be notified by Order in Council."

It will be seen that s.3 expressly refers to future issues of a publication. But the Appellants' reliance on it raises at least three questions: whether the Privy Council was obliged to accord the Respondents natural justice before making an Order-in-Council specifically aimed at the Taimi 'o Tonga on the grounds alleged by the Attorney-General; whether those grounds included irrelevant matters so as to vitiate the decision; and whether the decision or the extremely broad terms of s.3 of the Prohibited Publications Act violated the Constitution, and particularly Clause 7.

[12] So far as natural justice is concerned, there was once a view that this doctrine could not be applied to the making of such an instrument as an Order-in-Council. But that view was firmly rejected by the High Court of Australia in FAI Insurances Ltd v Winneke (1982) 41 ALR I, and may also be seen as inconsistent with the subjection of the prerogative power, in a proper case, to a requirement to accord natural justice which the House of Lords affirmed in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. In the High Court case, Gibbs CJ said (at 4):

"I can see no reason in principle why the rules of natural justice should not apply to an exercise of power by the Governor in Council, who is of course not above the law."

This case concerned the State of Victoria, where the Governor was the representative of the Queen. Gibbs CJ also pointed out (ubi supra) that in Canada an exercise of power vested in the Governor in Council was reviewable; that in New Zealand "the discretion of the Governor-General has been held to be examinable" (Reade v Smith [1959] NZLR 996); and that in Australia it had previously been held "that the court is free to inquire whether a statutory power granted to the Crown has been exercised for [a] purpose which the statute did not authorize."

[13] The Appellants' counsel attempted to avoid the impact of these authorities by arguing that the Order-in-Council was protected from review by the terms of s.9 of Government Act (Cap 3), which gives force to an Order-in-Council pending a decision of the Legislative Assembly. But s.9 applies also to regulations, rules and orders of far less exalted status than an Order-in-Council; it cannot reasonably be construed as aimed at excluding any review in all these cases. In reality, it is concerned with a different topic, the giving of effect to subordinate legislation that is validly made in the first place.

[14] It was then submitted that an alternative remedy had been available to the Respondents, to seek rescission of the Order-in-Council from the Privy Council, and that judicial review should have been refused until the exhaustion of the alternative remedy. But this submission is unreal in the circumstances, and in any case it was acknowledged that the suggested bar to relief could only be discretionary. Even if the argument were otherwise correct, as we do not think it is, we would not interfere with his Honour's discretion to entertain the Respondents' suit.

[15] On the question whether natural justice was in fact accorded to the Respondents, counsel for the Appellants was driven to the contention that the letter of the lawyer for Taimi 'o Tonga in response to the section 34 notice was "in effect ... an exercise of the right to natural justice." But this is to misapprehend the principle completely. The lawyer's letter was a protest written out of the dark, and in ignorance of the grounds alleged against his clients that they had to answer. A reasonable opportunity to answer allegations demands sufficient notice of what those allegations are. This was never afforded to the Respondents at any time. The point was made in Minister of Police v. Moala [1997] Tonga LR 210 at 218, where knowledge of the case to be met was described as "the central requirement of natural justice". It is unnecessary to multiply citations of authority for so basic a rule. The learned Chief Justice cited Kanda v Government of Malaya [1962] UKPC 2; [1962] AC 322 and Ridge v Baldwin [1963] UKHL 2; [1964] AC 40. In the former case, Lord Denning said (at 337), speaking for the Privy Council (Lord Denning, Lord Hodson and Lord Devlin):

"If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him."

[16] The learned Chief Justice held the Order-in-Council to be invalid on a number of grounds. Whatever else may be said about it, we are clearly of the opinion that it had to be set aside upon the basis that the Respondents were denied natural justice. We shall consider the ground of violation of the Constitution when we deal with the second appeal, but the reasons we have so far given are sufficient to require the dismissal of the first appeal.

[17] We now turn to the second appeal.

[18] The reserved judgment of the Chief Justice in the matters just dealt with was delivered on 4 April 2003. On the same day, a further ordinance issued from the Privy Council, being published in a Supplement of the Tonga Government Gazette. It had been "approved for submission to Privy Council" at a meeting of Cabinet on the previous afternoon. This further Ordinance, omitting some provisions not essential to an appreciation of the relevant questions, reads as follows:

"TONGA GOVERNMENT GAZETTE SUPPLEMENT
EXTRAORDINARY
No. 8 4^th April 2003

AN ORDINANCE

for

THE PROTECTION OF THE KING,
ROYAL FAMILY, GOVERNMENT AND PEOPLE
OF THIS KINGDOM FROM
ABUSE OF PRESS FREEDOM

BE IT ORDAINED by the King and the Privy Council in pursuance of the powers conferred by the Act of the Constitution of Tonga and by the Government Act as follows:

1. This Ordinance may be cited as the Protection from Abuse of Press Freedom Ordinance 2003.
   
2. In this Act [sic] unless the contrary intention appears –
   

"import" means to bring into the Kingdom by any means and in any form including electronic transmission;

"publication" means any publication, or part thereof, listed in the Schedule.

3. (1) It shall be unlawful for any person to –

(a) publish;
(b) sell or offer for sale;
(c) distribute;
(d) copy or reproduce;
(e) possess; or
(f) import

any publication to which this Ordinance applies.

(2) Any person who commits an offence under this Ordinance is liable upon conviction to a fine not exceeding $1,000 or imprisonment for any period not exceeding 2 years.

...

6. (1) The Cabinet may be [sic] regulation delete from or add to the list of publications in the Schedule.
   
   • (2) Any action may only be done under subsection (1) if in the opinion of Cabinet such action is for the protection of the King, the Royal Family, the Government or the people of this Kingdom.
     
   • (3) An action done under this section shall not be subjected to any judicial review.
     

...

SCHEDULE
Taimi 'o Tonga newspaper
Lali Media Limited publications

Made at Nuku'alofa this 4^th day of April, 2003.

By Order
Hon. Ma'afu
Acting Clerk to Privy Council"

[19] The Chief Justice having held in further proceedings brought by the Respondents that this Ordinance was ultra vires and also violated the Constitution, and particularly Clause 7, the Appellants bring their appeal to the Court of Appeal. At the forefront of their argument, they place the proposition that the Ordinance was passed pursuant to an absolute prerogative power of the King. The first difficulty confronted by this argument is that the instrument itself purports to be made "in pursuance of the powers conferred by the Act of the Constitution of Tonga and by the Government Act": it claims no other authority. The relevant provisions appear to be Clause 50 of the Constitution and sections 7 and 8 of the Government Act. Clause 50 relevantly provides:

"No Ordinance which may be passed by the King and Privy Council shall have any effect until the signature of the minister to whose department such Ordinance relates is affixed thereto and if such Ordinance shall be illegal such minister alone shall be responsible and when the Legislative Assembly shall meet it may confirm such Ordinances and make them law or rescind them."

[20] Two things should be noted at once about Clause 50. In the first place, it lends no support to any idea that an Ordinance may be passed under some prerogative power outside the ordinary operation of the Constitution; on the contrary, the Ordinances to which it refers do not have "any effect" except upon compliance with the Constitution, and it is expressly contemplated that a particular Ordinance may be found to "be illegal", in which case the relevant minister is made "responsible". Such illegality could, of course, be determined by the Supreme Court under Clause 90 (and see also Clause 82). In the second place, Clause 50 regulates the making of Ordinances which the King and Privy Council are otherwise empowered to make; it is not itself an independent source of power. That is quite clear from the words "which may be passed", words assuming that power has been granted in a particular case to pass an Ordinance. For the grant of power, it is necessary to go to a law enacted, as Clause 56 provides, by the King and the Legislative Assembly, the law making body under the Constitution. An Ordinance made pursuant to an Act is, of course, a form of delegated legislation, and its validity will be subject to review on that basis: Touliki Trading v. Fakafanua & Kingdom of Tonga (No.2) at 152; Minister of Police v. Moala at 213, 215-216. The purported exclusion of judicial review in certain cases cannot be effective to prevent the Supreme Court exercising its constitutional function of determining whether or not there has been a violation of the Constitution.

[21] As we have said, the Ordinance under appeal is expressed as made in pursuance of powers conferred by the Constitution and the Government Act, and the relevant sections of the Act appear to be sections 7 and 8:

"7. The King and the Privy Council may between the meetings of the Legislative Assembly pass Ordinances –

(a) enacting regulations which may be required in consequence of circumstances arising between meetings of the Legislative Assembly; or

...

(d) enforcing the prerogative of the King which have been proposed by the King; or

...

8. Every Ordinance of Privy Council shall be signed by the King and the Minister of the department to which such Ordinance relates or if not relating to any department it may be signed by the Clerk of the Council and any Ordinance so signed shall upon promulgation have the full force and effect of law and it shall be placed before that session of the Legislative Assembly immediately succeeding the promulgation of the Ordinance to confirm, amend or rescind."

In the scheme of these provisions, it will be seen that s.7 states circumstances in which this form of delegated legislation may be made, and s.8 regulates that making in a manner partly reflecting the terms of Clause 50 of the Constitution.

[22] The Appellants sought to rely on s.7 (a) and (d) as empowering the making of the Ordinance. But there was no evidence that this was an Ordinance that had been proposed by the King under paragraph (d). On the contrary, the evidence was that it was Cabinet that recommended it to the Privy Council, where the only speech about it was that of the Attorney-General. Nor is it possible to see in the Ordinance an enforcement of any prerogative. Counsel referred to what he said was the King's prerogative to protect himself; but there is no prerogative power to ban the publication of opinions or information. By Clause 7 of the Constitution King Tupou I gave Tonga the benefit of freedom of the press without reserving any prerogative to encroach on that freedom. The limitations expressed in Clause 7 refer to "the law of defamation, official secrets" and "the laws for the protection of the King and the Royal Family". The obvious subjects of these reservations are not some undefined, and possibly doubtful, prerogatives, but the laws the King and the Legislative Assembly are empowered by the Constitution to make and, of course, the laws expressed by its own clauses. As the Chief Justice held, in point of fact this Ordinance "did not enforce any personal prerogative of the King", and it was beyond any power conferred by para. (d).

[23] So far as paragraph (a) is concerned, the Chief Justice held there was "no evidence that the Privy Council purported to act under [paragraph] (a)", but had it done so, there were, on the evidence, no such circumstances arising between meetings of the Legislative Assembly as could have justified it.

[24] It follows that the second appeal also must be dismissed, quite apart from the attack the Respondents mounted against the Ordinance on the basis of the Constitution.

[25] In the circumstances, we do not find it necessary to examine many arguments which, interesting though they might be, could not affect the result. However, it is, we think, desirable to deal with some further matters.

[26] The Respondents claimed that clause 10 of the Constitution avoided the Ordinance on the basis that it amounted to an impermissible punishment of them. But if the Ordinance had been otherwise valid, the fact that its effect would have been to inflict loss upon them would not have altered its character. Disbarment, for example, may be felt as severely punitive in its consequences for a lawyer; however, the object is not punishment, but protection of the community. We have no doubt Clause 10 would not apply to an ordinary provision for the disbarment of a practitioner.

[27] It is Clause 7 which provides the real constitutional objection both to the Order-in-Council in the first appeal and to the Ordinance in the second appeal. Clause 7 is a constitutional guarantee of freedom of speech and of the press. Some limitations are conceded by its language and, as applies to any provision in an instrument, some modification of it may be implicit in the context in which it appears (see, for example, Minister of Police v. Moala at 219, commenting on the effect on it of Clause 70). But such a guarantee is not to be ignored or brushed aside. Prohibitions aimed at a newspaper which has complied with the general law – as the prosecution record with respect to the Taimi 'o Tonga demonstrates it has – may not lawfully ban it simply because it expresses views inimical to those of the Government. Nor is advocacy of amendment of the Constitution by constitutional processes unlawful. How could it be, when Clause 79 of the Constitution expressly contemplates its amendment and the discussion of proposed amendments? In a system of responsible government which includes the participation of regularly elected representatives of the people and of the nobles, public discussion is an essential element, as the great King Tupou I plainly recognized: see also Minister of Police v. Moala at 219-220, a passage more accurately reported in [2001] NZAR 917 at 928.

[28] In our opinion, the appeals fail also on the ground that the actions taken under the various provisions earlier set out violated Clause 7 of the Constitution.

[29] Senior counsel appearing for the Respondents sought an order for indemnity costs, or costs as between solicitor and client. However, such an order is rarely made where proceedings raise real issues of importance, as the constitutional questions in these appeals undoubtedly are. We think the appeals should be simply dismissed with costs.

[30] A matter of considerable practical importance for the working both of the Legislative Assembly and of the Courts of Tonga was raised, arising out of the fact that the Appellants include members of the Legislative Assembly which is sitting, and is expected to continue to sit for some months. Clause 73 of the Constitution provides:

"The members of the Legislative Assembly shall be free from arrest and judgment whilst it is sitting except for indictable offences and no member of the House shall be liable for any thing he may have said or published in the Legislative Assembly."

For the Appellants, it is argued that an effect of this clause is to preclude the Court of Appeal from giving judgment while the Legislative Assembly is in session. Acknowledging there is no case law on the point, counsel submitted, on what he said were firm instructions, "that no judgments of the Court can or may be delivered until the House has risen from sitting and in this instance that is likely to be in October 2003". Although we assume that submission was overstated, and judgment could be delivered as against parties not members of the House, the extent of the disruption of the work of all courts in the Kingdom that the success of the submission would involve is very plain.

[31] Clause 73 closely reflects the terms of clause 76 of the original 1875 Constitution, except for the words "and judgment" which were inserted after "arrest" in 1914. As it was originally drafted, the 1875 version made the concluding provision, denying liability for anything said by a member in the assembly, a separate sentence beginning with the word "And ....". This emphasized the fact that the clause dealt with two distinct questions: the conferral of what was then a limited freedom from arrest; and the conferral of immunity from liability for statements made in the House. One thing, we think, is clear; that the putting together of these two subjects in one sentence, possibly because of a stylistic objection to a sentence beginning with "And", had no effect on the meaning: cf, to give one example, the deletion from the original Clause 74 of "And" which occurred in the framing of the modern Clause 71, also a provision amended in 1914.

[32] It is the former of these two distinct provisions of Clause 73 with which we are concerned. While it covered only "arrest", the conclusion seems clearly justified that its purpose was to protect the Legislative Assembly from the disruption of its proceedings that might be caused by the arrest of a member during a sitting of the House. When the words "and judgment" were added, did they change the object of the provision, or did they extend it to another form of interruption of a member's work in the House? If the word "judgment" is understood as an extension of "arrest" to cover also the other coercive effects, apart from arrest, of the orders of a court which might distract a member from the performance of his duties during the sitting of the House, a consistent and logical meaning will be preserved in the construction of the Constitution. On the other hand, given the Constitution's concern (expressed in Clause 65) that the people shall be represented only by members who are "not in debt for a larger amount than is allowed by law", and the possibility of disqualification otherwise (for instance, in certain cases also referred to in Clause 65, for "holding an office of emolument under the Crown"), if Clause 73 barred delivery of judgment in any case for a long period, it could result in a serious breach of the qualification of a member continuing unremedied with the sanction of the Constitution itself. That would be a result consistent neither with the purposes of the instrument as a whole nor with the achievement of any object likely to have been intended by Clause 73.

[33] To turn from a consideration of what may have been the purpose of the amendment of the clause to an examination of its language, the most noticeable feature of that language is the use of the word "free". As is the case with the notoriously problematic s. 92 of the Constitution of Australia, this word inevitably poses the question, free from what? Freedom from arrest is easy to understand, because the word "free" is commonly used to express the opposite state to that of being in custody. But to be free from judgment, in a corresponding sense, might simply be not to be bound by the judgment, or more precisely to be free of its incidents. The clause does not say "free from delivery of judgment", "but free from ... judgment". The observance of this distinction is assisted by the association of "judgment" with "arrest", which invites the application of the maxim "noscitur a sociis", that light is thrown on the meaning of a word by the words with which it is associated.

[34] In our opinion, both broad considerations of the apparent purpose of the provision, and also textual considerations, support the conclusion, to which we have come, that Clause 73 does not prevent the delivery of judgment, and the making and entry of orders pursuant to it, by any Court but, by freeing a member from its incidents during the continuance of the sitting of the House (where it is delivered during that sitting), the clause operates to suspend the effect of the judgment and orders as against a member. For the avoidance of any doubt, we add that this includes the running of time for appeal, where the judgment is appealable, so that time only begins to run against the member upon the rising of the House.

[35] Accordingly, we publish these reasons, and make the appropriate orders, without delay, notwithstanding the current sittings of the Legislative Assembly. The orders we make are that each appeal be dismissed with costs.

Burchett J
Tompkins J