The Australian Plaintiff Lawyers’ Association (APLA) challenged the validity of Part 14 of the Legal Professions Regulation 2002 (NSW) made under the Legal Professions Act 1987 (NSW) that makes it an offence of professional misconduct for a legal practitioner to publish advertisements that have a connection with personal injury.
PIAC represented the NSW Combined Community Legal Centres Group Inc and Redfern Legal Centre who sought leave to appear as amici curiae in the matter. The amici were concerned that the Regulation significantly impedes the work of its member community legal centres (CLCs), by preventing solicitors working in CLCs from giving information to individuals about their rights. CLC solicitors provide legal advice and representation in a broad range of areas including discrimination, domestic violence, social security and victims’ compensation matters. All of these areas may have a connection with personal injury, as it was defined.
APLA filed an application in the original jurisdiction of the High Court seeking a declaration that the Regulation is invalid. Justice Gummow decided that the claim was arguable and decided to refer the matter to the full bench for hearing.
PIAC filed an application, and affidavits in support, on behalf of the amici applicants. The Court granted them leave to appear. In addition the Court granted the amici a right to present oral submissions and a right of reply. It is highly unusual for the Court to grant an amici such extensive involvement in a matter. The Attorneys General of the Commonwealth, Queensland, South Australia, Victoria and Western Australia also intervened in the matter.
During the hearing the Court canvassed a broad range of constitutional law issues including;
- Whether the Regulation breached the implied Constitutional right to freedom of communication on political and governmental matters and the express Constitutional provision of freedom of interstate trade and commerce and intercourse.
- Whether an implied right to freedom of access to federal courts arises from the text and structure of the Australian Constitution, in particular from Chapter III, and to what extent this could be impeded by the Regulation in question.
- Whether the Regulation is invalid for reasons of inconsistency with a Commonwealth law under section 109 of the Constitution or exceeding the legislative power of the State of New South Wales by virtue of its extra-territorial operation.
- If the Regulation is invalid for any of the above reasons, whether the Regulation can be severed.
The High Court found that the Regulation did not impermissibly infringe the freedom of communication on political and governmental matters, or the requirements of Chapter III of the Constitution. In dissent, McHugh and Kirby JJ found that the Regulation did impermissibly infringe the latter.
The consequence of the decision for CLCs, which in the words of Justice Callinan ‘provide useful legal services on a non-profit basis’, is that they are bound by the Regulation and cannot publish information that relates to personal injury. As the amici pointed out in their affidavits in support of their application, the Regulation prohibits them from publishing information about civil liberties, discrimination, domestic violence, sexual assault, social security and victims compensation. CLCs have had to edit the information they provide and curb their services accordingly.