APLA Limited v Legal Services Commissioner (NSW)
High Court of Australia · 2005
APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44
Personal injury lawyers challenged a NSW ban on advertising their services on several constitutional grounds, and the Justices did not all reach the same questions.
Palmer v Western Australia changed the threshold question. All four sets of reasons treat the intercourse limb as concerned with discriminatory burdens on interstate movement rather than every burden on it: Kiefel CJ and Keane J at [48]-[50], Gageler J at [113]-[114], Gordon J at [187]-[188] and Edelman J at [241]. Kiefel CJ and Keane J held that a law directed to discriminating against, or in fact discriminating against, interstate movement is invalid unless justified by reference to a non-discriminatory purpose, and may be justified if it goes no further than is reasonably necessary to achieve a legitimate object ([50]). Gageler J described the "reasonably required" standard as adopted and applied by a majority in APLA to provisions that burdened interstate intercourse in the same way as intrastate intercourse, and said that no argument was put in APLA that a burden that was not differential needed no justification, so neither APLA's outcome nor its reasoning stands in the way of confining the limb to discriminatory burdens ([113]). On those reasons the first question for a law that burdens interstate and intrastate movement alike is whether the burden is discriminatory; the question of justification, which APLA answered by asking whether the impediment was greater than reasonably required, arises for a discriminatory burden. Palmer also bears on intercourse that occurs in trade or commerce, which Gummow J and Hayne J in APLA assigned to the trade and commerce limb. Gageler J held that, to the extent the two limbs overlap for intercourse occurring in trade or commerce, the guarantee of each must be observed, so that a law differentially burdening such intercourse must pass both ([115]-[116]); Gordon J held that where a law arguably burdens both limbs it must satisfy both, that the trade and commerce limb does not prevail, and that earlier decisions to the contrary no longer reflect the law on s 92 ([189]).
What happened?
Regulations made under the Legal Profession Act 1987 (NSW) took effect on 23 May 2003 ([2]). Clause 139 forbade a barrister or solicitor to publish an advertisement that referred to or depicted personal injury, circumstances in which personal injury might occur, or a personal injury legal service; the maximum penalty was 10 penalty units and a contravention was declared professional misconduct ([4]). "Advertisement" and "publish" were defined widely enough to reach print, broadcast and Internet website publication ([5]).
The plaintiffs were APLA Limited, a company whose members are lawyers and whose name is an acronym for an association of plaintiffs' lawyers; Maurice Blackburn Cashman, an incorporated legal practitioner carrying on business as solicitors in Victoria, New South Wales and Queensland, whose website was uploaded to a server in Victoria and could be downloaded in New South Wales, Queensland and elsewhere; and a New South Wales sole practitioner who wished to advertise in trade union journals circulating in New South Wales ([11], [13]). They sued in the High Court's original jurisdiction, and the parties stated a special case ([98], [101] (Gummow J)). The plaintiffs relied on the implied freedom of political communication, Ch III, s 92, extra-territoriality and inconsistency with federal legislation ([14]-[15]). Two community legal centres appeared as amici curiae, concerned that non-profit communications might fall within the regulations ([429] (Callinan J)).
What did the Court decide?
The Court's order answered question 1, whether Pt 14 was invalid in whole or in part on one or more of those grounds, "No", and questions 2 and 3 did not arise. Gleeson CJ and Heydon J ([46]), Gummow J ([254]), Hayne J ([428]) and Callinan J ([487]) each answered question 1 "No". McHugh J would have held the regulation invalid for infringing Ch III ([96]-[97]); Kirby J would have answered the political communication, Ch III and inconsistency questions "Yes" ([372]).
Proposition
What is the principle?
Where a law burdens interstate intercourse by its practical operation and is not aimed at it, four Justices asked whether the impediment was greater than reasonably required to achieve the law's objects, and held that the NSW advertising prohibition did not infringe s 92 on that footing. Gleeson CJ and Heydon J (jointly) applied that question, on the assumption that at least some of the advertising was not trade or commerce ([38]). Gummow J said the approach taken in AMS v AIF "should be accepted as the doctrine of the Court" ([177]) and applied it ([179]). Hayne J agreed with Gummow J that the principles stated in AMS v AIF "should now be accepted as the applicable doctrine" ([420]) and found the inhibition no greater than necessary to achieve the regulations' purpose ([427]); he added that such a test means few laws not directly aimed at interstate intercourse would fail it ([421]). Callinan J answered the s 92 question on the basis propounded in Cole v Whitfield, treating the regulations as no impediment to interstate trade, commerce or intercourse ([462]-[464]). McHugh J and Kirby J held the s 92 question unnecessary to answer ([97], [372]). On intercourse that forms part of trade or commerce, Gummow J held that validity is assessed by the trade and commerce character alone ([165], [170]), and Hayne J reasoned that, if a distinction between the limbs is to be drawn, a law dealing with such intercourse is judged by whether it discriminates in a protectionist sense ([408]); Gleeson CJ and Heydon J found it unnecessary to decide the point ([39]).
Why does this case matter?
A paragraph number without a name behind it is how this report is easily misused: seven Justices sat, six sets of reasons were written, and the short form "the High Court in APLA" does not say whose. A student who presents one Justice's formulation as the words of the other Justices who agreed in the result, or who treats the decision as a ruling on freedom of interstate movement generally, has taken more from a case about advertising by lawyers than the facts carry.
The standard it applied has also been revisited since 2005, so an answer on interstate intercourse that stops here is out of date.
Exam and application relevance
Start with what was before the Court: regulations aimed at advertising of legal services to be provided in New South Wales, which reached some interstate communication ([36]). Attach each statement of the test to its Justice and paragraph, and report that the order answered question 1 "No" with five Justices in that result.
Where a problem concerns a burden on interstate movement or communication, set out the position as it stood in 2005, with the Justices who adopted it, and then take the change made by Palmer v Western Australia, which asks first whether the burden is discriminatory.
Check your understanding
1. Which Justices asked whether the impediment to interstate intercourse was greater than reasonably required to achieve the law's objects, and at which paragraphs? How does Hayne J's wording at [427] differ from Gummow J's at [179]? 2. How did McHugh J ([97]) and Kirby J ([372]) answer question 1(c), and how does that bear on how many Justices decided the s 92 point? 3. In Palmer, what did Gageler J say at [113] about the argument that was, and was not, put in APLA?