Buckley v Council of the Law Society of New South Wales

1. [1]

   HER HONOUR: In this matter, the plaintiff (Nathan Andrew Buckley), a solicitor, seeks judicial review of the decision made by the defendant (the Council of the Law Society of NSW) (Council) on 12 November 2021, pursuant to s 82(1)(d) of the Legal Profession Uniform Law (NSW) (Uniform Law), to suspend the plaintiff’s practising certificate until 30 June 2022 (Decision).

2. [2]

   By amended summons filed on 10 December 2021, the plaintiff seeks relief pursuant to s 69 of the Supreme Court Act 1970 (NSW) in the nature of certiorari, declaration and injunction. Although the amended summons identifies four grounds on which the relief is sought, at the hearing the plaintiff’s Counsel advised that the plaintiff did not press grounds 2, 3 and 4 (see T 6.45-46), thus pressing only ground 1 (which asserts that the defendant proceeded on a misunderstanding of the law, thereby committing jurisdictional error. In the plaintiff’s written submissions filed on 24 February 2022, that ground was distilled in effect into two sub-grounds (as I explain in due course).

3. [3]

   As set out in the amended summons, ground 1 is as follows:

4. [4]

   The two sub-grounds into which the plaintiff in his submissions distilled the above ground 1 are as follows:

5. [5]

   In opening oral submissions, Counsel for the plaintiff articulated these grounds as follows:

6. [6]

   Shortly prior to the hearing of the plaintiff’s application, the plaintiff served notices under s 78B of the Judiciary Act 1903 (Cth) on 25 February 2022, raising a constitutional matter. Section 78B(1) is as follows:

7. [7]

   The s 78B notice provided that the argument was twofold, setting out the two sub-grounds as they appeared in the plaintiff’s submissions, extracted above.

8. [8]

   Of those who responded, none of the Attorneys-General wished to intervene at the date of the hearing. The late stage at which the service of s 78B notices occurred would have been grounds for a temporary stay of the proceedings to allow for the expiry of a reasonable period of time for response by the Attorneys-General, were it not for the clarification by the plaintiff as to how the purported “constitutional matter” was to be argued (on the requirement of a reasonable period of time for response, see Australian Securities and Investments Commission v TAL Life Ltd (No 2) [2021] FCA 193 at [4] per Allsop CJ).

9. [9]

   Counsel for the plaintiff confirmed (contrary to what the plaintiff appeared to submit in his written submissions) that the plaintiff did not contend in the present case for the proposition that the freedom of political speech is a private right (a matter that I note has been determined in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25 at 560 (Lange); Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; [1994] HCA 46 at 168 per Deane J; Cunliffe v Commonwealth (1994) 182 CLR 272; [1994] HCA 44 at 327 per Brennan J). On that basis there would not be a duty upon the Court not to proceed pending the issue of notices to the Attorneys-General and the conclusion of a reasonable period of time in which the Attorneys-General were to consider those notices, see Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (1999) 95 FCR 292; [1999] FCA 1151 per French J, his Honour then sitting on the Federal Court; and Quach v New South Wales Civil and Administrative Tribunal [2020] NSWCA 295 at [10] and [11] per Gleeson JA). Counsel for the plaintiff framed the issue for determination by this Court in terms of jurisdictional error only (contending that the constitutionally implied freedom of political communication is relevant to the valid interpretation of legislation impinging upon the implied freedom as otherwise the legislation would not be constitutionally valid – see at T 6.5ff), I proceeded to hear the application on 4 March 2022 (directing that an affidavit be filed deposing to the service of the s 78B notices on the Attorneys‑General and any responses received – which direction was complied with during the course of the morning’s hearing).

Relevant provisions of the Uniform Law

1. [10]

   Section 82(1)(d) of the Uniform Law provides that the designated local regulatory authority (here, the Council) may vary, suspend or cancel a practising certificate on the grounds specified in (a) to (d), relevantly including:

2. [11]

   Section 83 of the Uniform Law provides that:

3. [12]

   Thus, If the Council considers that action should be taken pursuant to s 82 of the Uniform Law, it must give the holder of the practising certificate notice under s 83 stating, among other things, the action it proposes to take and the grounds for the proposed action, as well as inviting the holder to respond in writing within a specified period.

4. [13]

   If a person’s practising certificate is suspended, that person becomes a “disqualified person” for the period of the suspension (see s 6(c) of the Uniform Law which defines a “disqualified person” as “a person whose Australian practising certificate is suspended (for the period of suspension)”). A disqualified person cannot act as an “associate” (including as principal) or “lay associate” of a law practice (see ss 121-122, read together with s 6 (definition of “associate” and “lay associate”)). Further, a solicitor whose practising certificate is suspended is not a “qualified entity” (s 6 of the Uniform Law) and is thus prohibited from engaging in legal practice or representing that he or she is entitled to engage in legal practice (ss 10-11).

5. [14]

   Pausing here, the defendant submits that, while it is the consequence of suspension of a person’s practising certificate that the person cannot provide services as a legal practitioner, under the Uniform Law the suspension of a person’s practising certificate has no direct effect on a person’s speech. In particular, it is said that neither s 82(1)(d) nor any of the other relevant provisions in the Uniform Law is concerned specifically with the regulation of speech; rather, that those provisions are concerned, inter alia, with the regulation of the legal profession, as well as the protection of clients and the public generally (reference being made in this context to s 3 (Objectives)).

Background

1. [15]

   Briefly (noting that there is no challenge by the plaintiff to the merits of the Decision – for which it would have been necessary for the plaintiff to exercise his statutory right of appeal from the Decision – see below) it is relevant to note by way of background that the plaintiff acted for a group of plaintiffs (the Henry plaintiffs) in proceedings in this Court challenging the validity of public health orders made during the COVID-19 pandemic. Those proceedings were heard by Beech-Jones CJ at CL, who dismissed the plaintiffs’ application (see Kassam v Hazzard; Henry v Hazzard (2021) 362 FLR 113; [2021] NSWSC 1320 (Kassam/Henry Judgment)).

2. [16]

   Following that decision, the plaintiff made (and does not dispute making) a number of public statements, as well as posting comments on the Facebook and Twitter pages of his law firm (G&B Lawyers) which were highly critical of the decision (and it is conceded by the plaintiff that there is no issue in respect of those comments being discourteous and not in accordance with a solicitor’s obligations of professional courtesy – see T 12.13-47). Certain of those comments also (on their face) appear to incite or encourage (or at the very least do not discourage) the commission of criminal conduct (though the plaintiff’s submission to the defendant was that these comments were “tongue-in-cheek” or facetious).

3. [17]

   It appears, from the material before me, that the plaintiff was already the subject of regulatory investigation or discipline in relation to earlier conduct by him responding to measures taken by various governments during the pandemic (see the particulars set out in the Council’s s 83 notice set out below, not all of which are here pressed; and the plaintiff’s submissions to the Council of 15 October 2021, which were incorporated by reference into the response the plaintiff sent to the s 83 notice in respect of the conduct the subject of the suspension notice). I raise this only by way of background as it provides relevant context for the purposes of the present application.

4. [18]

   On 20 October 2021, the Council issued to the plaintiff a notice pursuant to s 83 of the Uniform Law (the s 83 notice), notifying him that the Council was proposing to suspend his practising certificate on the ground specified in s 82(1)(d) for a period ending 30 June 2022. The grounds for the proposed action were set out in the s 83 notice and the plaintiff was invited to respond in writing to the Council as to why the proposed action should not be taken, by no later than 4.00pm on 5 November 2021.

5. [19]

   The four grounds specified in the notice are set out in full in the schedule to these reasons. In summary, the grounds for the proposed action set out in the s 83 notice were that the plaintiff is unable to fulfil the inherent requirements of an Australian legal practitioner as he does not have the ability to discharge:

6. [20]

   For each of grounds 1-3, the same particulars were relied upon (as set out in relation to ground 1); for ground 4 only the particulars at (d)-(g) in respect of ground 1 were repeated. In summary, the conduct set out in the particulars to ground 1 was as follows:

7. [21]

   Particular (g), as noted above, applied to the conduct particularised at (e) and (f).

8. [22]

   Particular (h) (referring therein to the G&B Lawyers Twitter Page) provided that, by reason of the circumstances set out at (i)-(vi), the plaintiff engaged in conduct which encouraged, or at least publicly condoned, the making of public statements which were likely to impair the authority of Beech-Jones CJ at CL and this Court, and/or to undermine confidence in the administration of justice.

9. [23]

   Particular (i) was to similar effect as particular (h) but referred therein to the G&B Lawyers Facebook Page.

10. [24]

    As noted, the plaintiff was invited to respond in writing by 4.00pm on 5 November 2021 as to why the proposed action (i.e., suspension of his practising certificate for a period ending 30 June 2022) should not be taken.

11. [25]

    By email sent on 3 November 2021 at 11.53am (headed “Without prejudice save as to costs” and addressed to the Director, Legal Regulation), the plaintiff responded to the s 83 notice.

12. [26]

    As to ground 1, the plaintiff denied the proposition that he was unable to fulfil the inherent requirements of an Australian legal practitioner and further denied the proposition that he did not have the ability to discharge the paramount duty to the administration of justice. As to the particulars to ground 1, the plaintiff said, in respect of the matter at (a), that this had already been dealt with and was the subject to a reprimand that was the subject of a review at the NSW Civil and Administrative Tribunal and therefore that these particulars “amount to double jeopardy”. In relation to particulars (b) and (c), the plaintiff repeated submissions earlier made on 15 October 2021. As to the particulars at (d)-(i), the plaintiff denied the allegations made and went on to say:

13. [27]

    As to grounds 2-3 of the s 83 notice, the plaintiff’s response was “as per above, denied”.

14. [28]

    The email then went on, under a further heading “Without prejudice save as to costs – offer to resolve all matters”, to make an offer on a without admissions basis, stated to be open and capable of acceptance for 7 days and to close at 5.00pm on 10 November 2021, in the following terms:

15. [29]

    It is thus immediately apparent that the without prejudice offer extended to matters beyond the scope of the s 83 notice (insofar as it referred to separate regulatory investigations and a separate compulsive notice requiring the plaintiff to produce documents under s 371 of the Uniform Law). The defendant also points out that this offer did not contemplate in terms the imposition of conditions on the plaintiff’s practising certificate but, rather, proffered an undertaking to the Law Society in relation to the matters there stated.

16. [30]

    The email also stated the plaintiff’s intention (should the offer not be agreed and should the Council proceed with the suspension of the plaintiff’s practising certificate) to commence judicial review proceedings to challenge such a suspension (interestingly, that intention was evidently formed before the Council had made the relevant Decision and hence, one would have thought, before any jurisdictional error could have been identified in relation to the then non-existent Decision). The email also stated that the plaintiff would seek to have the s 371 notice issued on 26 October 2021 set aside in this Court.

17. [31]

    The response to this email by the Director, Legal Regulation, sent by email at 4.36pm on 3 November 2021, was to note that the s 83 notice had been issued by the Council and that any decision to be made pursuant to s 82(1)(d) of the Uniform Law concerning the alleged conduct would be a matter for the Council. In those circumstances, the Director advised that he could not, and did not, accept the plaintiff’s offer. The Director noted that the Council would not meet to consider any submissions in response to the s 83 notice until after expiry of the deadline specified in the notice (by which he must have been referring to the without prejudice offer, having regard to the deadline there set out). Further the email stated that:

18. [32]

    The plaintiff then sent an email on 3 November 2021 at 4.54pm, addressed to the Director, (this time not headed “without prejudice”) which repeated the earlier response as to Grounds 1-4 of the s 83 notice and which stated that there were no reasons to suspend the plaintiff’s practising certificate, again advising his intention to commence judicial review proceedings if the Council proceeded with the suspension. (Again, this email incorporated by reference submissions that had earlier been made by the plaintiff in response to an earlier disciplinary complaint made against him.) It is noted by the defendant that there is no allegation made by the plaintiff as to any denial of procedural fairness nor is there any allegation that there was a failure to take the plaintiff’s submissions into account.

19. [33]

    The 15 October 2021 submissions (to which reference was made by the plaintiff in his response to the s 83 notice) were exhibited to his affidavit on the present application and were clearly before the Council when it made its Decision (as evidenced by the reasons for the Decision – see, for example, [27] of the reasons which summarised the relevant part of the earlier submissions relied upon in answer to particular (b)). Those submissions related to an earlier complaint. There was, however, some overlap in the allegations to which the plaintiff there responded (hence, no doubt, his incorporation of the response thereto when responding to the s 83 notice).

20. [34]

    In its meeting on 12 November 2021, the Council resolved to suspend the plaintiff’s practising certificate for a period ending 30 June 2022 pursuant to s 82(1)(d) of the Uniform Law on the ground that it reasonably believed the plaintiff was unable to fulfil the inherent requirements of an Australian legal practitioner. The Council’s reasons for the suspension were set out in Attachment A to a notice dated 12 November 2021 issued pursuant to ss 81, 84 and 464 of the Uniform Law. Those reasons clearly identified the relevant legislation and set out the principles that the Council considered relevant. The reasons made express reference to the fact that a less onerous form of action relative to a suspension is the imposition of conditions (see at [7]); and included the statement that:

21. [35]

    The Council also noted (at [9]) that issues involving professional rights to practise concerned the protection of the public, which meant that the public interest was always entitled to significant weight (see at [9], citing New South Wales Bar Association v Stevens (2003) 52 ATR 602; [2003] NSWCA 95 at [104]).

22. [36]

    From [10]-[15], the Council addressed the inherent requirements of an Australian legal practitioner; at [16]-[17] noted that the Council had issued the s 83 notice and invited the plaintiff to respond thereto; and that the plaintiff had done so, in summary denying each ground. The Council then addressed (from [19]) each of the four grounds set out in the s 83 notice and in so doing set out its conclusions in relation to each of the particulars to ground 1. Relevantly, for present purposes, although the Council did not accept the plaintiff’s double jeopardy submission in relation to particular (a), the Council said that there was no need presently to rely on it as the plaintiff’s other conduct provided a sufficient basis to take the proposed action against him.

23. [37]

    The Council concluded that the conduct the subject of particulars (b) and (c) had been established; that the conduct (of making public statements encouraging others to breach laws) was contrary to a solicitor’s duty to the administration of justice; that by engaging in that conduct the plaintiff had demonstrated that he does not have the ability to discharge his paramount duty to the administration of justice; and that his response and submissions did not demonstrate any understanding or insight into the fact that encouraging others to breach laws was contrary to his paramount duty to the administration of justice (see at [26]-[38]).

24. [38]

    As to the conduct the subject of particulars (d)-(i) (which the Council characterised as relating to two broad matters – the conduct in making public statements in relation to the judgment and the conduct in encouraging, or publicly condoning the making of certain public statements by others), the Council considered this from [39], noting that the plaintiff did not dispute that he made the relevant posts and comments. The Council concluded that the plaintiff’s public statements as to the Kassem/Henry Judgment did not honestly or accurately characterise the effect of the judgment and were likely to mislead persons as to its effect (see at [45]); and that further statements by the plaintiff (see at [46]) were likely to undermine confidence in the administration of justice and to impair the authority of his Honour.

25. [39]

    The Council addressed (but did not accept) the submissions made to the effect that the conduct on social media was not made in the course of legal practice; that the posts and comments did not take the form of formal advice or case analysis; and rejected the proposition that they were properly characterised as facetious or tongue-in-cheek. The Council concluded (see at [52] and [54]) that the particulars at (d)-(g) were made out. The Council accepted at [56] that judgments delivered by the court may be the subject of “fair and even robust criticism” but said that such criticism should be based on an honest (and, as much as possible, accurate) statement of the findings and legal effect of pronouncements made by the court, particularly where the criticism was advanced by a legal practitioner in whose analysis and opinion the public was entitled to place confidence. The Council said that it is contrary to a solicitor’s duty to the administration of justice to make public statements about judicial determinations which are inaccurate and misleading “and, as such, likely to produce or encourage misgivings about the integrity, propriety or impartiality of the judicial officer or the relevant court” (see at [56]).

26. [40]

    A similar conclusion was reached (at [57]) that by engaging in the conduct in particulars (d)-(g), the plaintiff had demonstrated that he does not have the ability to discharge his paramount duty to the administration of justice; and that his response did not demonstrate any understanding or insight into the fact that this conduct was contrary to his paramount duty to the administration of justice.

27. [41]

    Particulars (h) and (i) were dealt with from [58] of the reasons, the Council concluding at [61] that neither the posts on social media the subject of these particulars nor the adverse comments that followed fell within the ambit of fair and legitimate criticism of the judgment; and that the adverse comments suggested, without any proper basis, that amongst other things the judgment was motivated by an improper purpose. It was noted that the plaintiff did not take action to remove, delete or conceal the adverse comments and thereby allowed them to remain publicly available on his law firm’s social media accounts and that this, together with the matters referred to at [60], was a form of encouragement, or at least a public condoning of the making of statements which were likely to impair the authority of Beech-Jones CJ at CL and the Court and to undermine confidence in the administration of justice. The Council reiterated its conclusions as to the submissions that the conduct on social media was not done in the course of legal practice; did not take the form of legal advice or case analysis; and was facetious or tongue-in-cheek (see [63]).

28. [42]

    The conclusion as to particulars (h) and (i) was set out from [64]-[67] and, again, the Council considered that the complaint was made good.

29. [43]

    The reasons then addressed each of grounds 2, 3 and 4, concluding in each case that the conduct had been engaged in and that it demonstrated an inability to discharge the relevant duties of the legal practitioner (and that his response did not demonstrate any understanding or insight in relation to the fact that his conduct was contrary to the relevant duty).

30. [44]

    The Council’s ultimate conclusion (at [93]) was in terms that enlivened the application of the power to suspend the plaintiff’s practising certificate and affirmatively stated the Council’s reasonable belief that the plaintiff was unable to meet the inherent requirements of an Australian Legal Practitioner because the plaintiff was unable to discharge the following duties:

31. [45]

    At [94], the Council stated that, in his response, the plaintiff did not offer that any specified conditions be imposed on his practising certificate as a less onerous action (it will be recalled that the without prejudice offer was not put before the Council and that it proposed an undertaking – not conditions on the plaintiff’s practising certificate as such; and was conditional on resolution of other matters). Further, having regard to the matters set out in r 16 of the Legal Profession Uniform Rules 2015 (NSW) (Uniform Rules), the Council did not consider that the imposition of any available condition would appropriately address the deficiencies exhibited by the solicitor’s conduct concerning his ability to meet the inherent requirements of practice. Hence the Decision that the Council made for the suspension of the plaintiff’s practising certificate for a period ending on 30 June 2022.

The implied freedom of political communication

1. [46]

   At the outset, it is worthwhile setting out the principles applicable to the implied freedom of political communication, insofar as the plaintiff’s submissions appeared to misapprehend the nature of that freedom. Consistently throughout his submissions (both oral and written) the plaintiff referred to the implied freedom of political communication as “the freedom of speech” seemingly referring to the plaintiff’s personal right to exercise such freedom. Moreover, the plaintiff’s submissions appeared to conflate the implied freedom as a touchstone of constitutional validity of legislation (and the tests applicable to the determination of such (in)validity) with the principles of administrative law relevant to determining whether an administrative decision is ultra vires.

2. [47]

   In McCloy at [2] French CJ, Kiefel, Bell and Keane JJ explained the implied freedom of political communication thus:

3. [48]

   At [30] the plurality went on to say:

4. [49]

   At [119]-[120] of McCloy, Gageler J distinguished the implied freedom of political communication from the freedom of speech simpliciter:

5. [50]

   The implied freedom of political communication, as a limitation on legislative power, goes to the validity of any such legislation which (permissibly or impermissibly) burdens the freedom. The question of whether (in applying a legislative power or discretion that does not of itself burden the implied freedom and thus is valid) the application of a statutory power affects the implied freedom is not a question of constitutional law. Indeed, so much was made clear in Wotton v Queensland (2012) 246 CLR 1; [2012] HCA 2 at [22]-[23] per French CJ, Gummow, Hayne, Crennan and Bell JJ (Wotton):

6. [51]

   While the plaintiff eschewed the proposition that he was, in effect, challenging the validity of s 82 of the Uniform Law, his submissions did not appear to recognise or appreciate the distinction between the principles applicable to determinations of (in)validity due to infringements of the implied freedom, and principles of administrative law. Moreover, the plaintiff’s submissions appeared to allege that the implied freedom (and the proportionality test that forms part of the inquiry as to validity) was a mandatory consideration when exercising the discretion conferred by s 82 without engaging with the jurisprudence as to the nature of, and test for discerning, mandatory considerations. Nor did the plaintiff grapple with the requirement of materiality when alleging the existence of jurisdictional error on the part of the decision-maker.

Plaintiff’s submissions

1. [52]

   I have summarised above the twofold nature of the plaintiff’s submissions.

2. [53]

   The plaintiff outlined his understanding of the concept of “jurisdictional error”, by reference to cases such as Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 (Craig), where the High Court (at 179) said that:

3. [54]

   The plaintiff says that, for tribunals and administrative decision-makers, the errors of law which would constitute jurisdictional errors of law include situations where the decision-maker: identifies a wrong issue; asks itself a wrong question; ignores relevant material; relies on irrelevant material; makes an erroneous finding; or reaches a mistaken conclusion.

4. [55]

   As adverted to above, the principal basis on which the plaintiff submits that there has been jurisdictional error in the present case is the contention that the defendant misinterpreted or failed to interpret the relevant legislative restriction on the implied freedom of political communication in s 82(1)(d) of the Uniform Law, “namely [that it] suspend[ed] a lawyer’s practising certificate, [without] having proper regard to the principles of freedom of speech as proffered by the High Court in Lange and McCloy [McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34 (McCloy)]”. The plaintiff says that the defendant consequently misinterpreted, misapplied and/or failed properly to apply the relevant provisions of the Uniform Law, by failing to apply “proportionality testing” to the interpretation and application of the relevant legislative restriction on the implied freedom of political communication, being those provisions of the Uniform Law which facilitate the suspension of legal practitioners from practice (in this case, s 82(1)(d)). It is submitted that the Council thereby reached an erroneous conclusion. The plaintiff’s submission is, in effect, that the implied freedom of political communication, and thus the requirement that any burden on that freedom be proportionate, is a mandatory consideration when exercising the discretion pursuant to s 82(1)(d). There is. however, no ground in the summons that expressly alleges that the implied freedom and the requirement of proportionality were mandatory relevant considerations.

5. [56]

   The plaintiff’s submissions address the principles in relation to the implied constitutional freedom of political communication (reaffirmed in Lange and the subsequent reformulation in McCloy of the second limb of the Lange test to accommodate a structured proportionality approach). Those submissions in terms recognise that the test in Lange, and as reformulated in McCloy, is a test that applies to determine the validity of laws burdening communication. Here, as already noted, Counsel for the plaintiff made clear that the plaintiff does not challenge the constitutional validity of s 82(1)(d) of the Uniform Law.

6. [57]

   Rather, the contention is that, for the lawful interpretation and application of legislative provisions to an instance of political discourse, the correct interpretation and application must accord with the principles in Lange (and McCloy) “otherwise there may be erroneous application of principle as to freedom of political speech”. It is submitted that this may result in appealable error or judicial review in circumstances where a decision has been made (pursuant to a legislative power) which incorrectly interprets or misapplies that power in light of the implied freedom of political communication.

7. [58]

   The plaintiff submits that the implied constitutional guarantee of freedom of political communication necessarily affects private rights of expression; and, in particular, that the interpretation of legislative provisions which have application to political discourse necessarily affects whether the discourse is lawful and permitted or unlawful and impermissible. It is said that “these are practical ramifications on private rights of expression which depend on the interpretation of the implied constitutional guarantee of political communication” and that the correct or lawful interpretation of the implied constitutional guarantee of political communication must thus accord with the principles in Lange and McCloy otherwise there would be erroneous application of principle.

8. [59]

   The plaintiff contends that the right of free political discourse, to which reference is made in Lange (citing from 561) is not merely a legal basis upon which to challenge legislative or executive action; it is “the people’s essential private right which is the basis for the creation of such legislation in a manner which is constitutionally valid”. It is submitted that the private right must necessarily exist for legislation to be validly enacted in the first place. However, in oral submissions the plaintiff conceded that he need not establish that the freedom of political communication is indeed a private right (see T 6.4-9): a wise concession in light of the High Court authority that provides that the implied freedom is not a private right (see Unions NSW v State of New South Wales (2013) 252 CLR 530; [2013] HCA 58 at [30] and [36]; and McCloy at [30]).

9. [60]

   In the present case, the plaintiff contends that the principles in Lange and McCloy mean that speech relating to political matters is a protected dialogue; and that such protected dialogue includes discussion of activities that have become the subject of “political debate”. It is noted that the relevant court proceedings upon which the plaintiff commented were widely broadcast and watched on “Youtube” by thousands of members of the public (and it is submitted that they had thus realistically become the topic of “political debate” among members of the public).

10. [61]

    The plaintiff argues, in essence, that there is a legislative restriction on the power of suspension in that it must be understood and applied having regard to “proportionality testing”; and that if the Council did not have regard to “proportionality testing” in its interpretation and application of the legislative restriction on the implied freedom of political communication, in this case suspension under the Uniform Law, then it has “arguably misinterpreted” both the principles applicable to the implied freedom in Lange and McCloy and their lawful application to the relevant restriction in s 82 of the Uniform Law and consequently misapplied them.

11. [62]

    It is submitted that for a correct understanding of implied freedom of political communication and correct application of the relevant legislative restriction in s 82, the Council of the Law Society’s interpretation and application of s 82(1)(d) must be shown to have been suitable (having a rational connection to the purpose of the provision), necessary (in the sense that there is no obvious and compelling alternative reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom); and adequate in its balance (i.e., balancing the importance of the purpose served by the restrictive measure and the extent of the restriction imposed on the freedom), in accordance with the judicial exposition of the implied freedom.

12. [63]

    The plaintiff says that the relevant legislative restriction is the power to suspend a solicitor’s practising certificate and it contends that the Council, in coming to the decision to suspend the plaintiff, did not properly nor sufficiently apply proportionality testing; (in particular, the criterion of “necessity”) because there were other obvious and compelling alternative, reasonably practicable means of achieving the same (protective rather than punitive) purpose which would have had a less restrictive effect on the implied freedom.

13. [64]

    By way of example, the plaintiff raises the alternative of the imposition of conditions, a mandatory course of professional education or an undertaking that the plaintiff submit to such a course, the imposition of a supervision condition, or even a public reprimand (this last being something that it is said would bring considerable disgrace to the practitioner, without being overly punitive in respect of his livelihood).

14. [65]

    The plaintiff contends that there is evidence that the defendant failed to consider reasonably practicable alternatives to suspension, or did not consider such alternatives even when such alternatives were proposed by the plaintiff prior to the Decision to suspend him (referring to [5]-[10] of the plaintiff’s 10 December 2021 affidavit); and so failed to have regard to the touchstone of proportionality in its interpretation and application of the relevant legislative restriction on the implied freedom of political communication as it applies to lawyers contained in s 82(1)(d).

15. [66]

    For these reasons, it is submitted that the defendant misunderstood or misapplied the principles applicable to the implied freedom when construing the legislative restriction of suspension from practice in s 82, and thereby committed jurisdictional error: see, eg. Re Patterson; Ex parte Taylor (2001) 207 CLR 391; [2001] HCA 51 at [89] per Gaudron J, and at [189] per Gummow and Hayne JJ; Craig at 177-178.

16. [67]

    The second way in which it is submitted that the defendant committed jurisdictional error is in the exercise of its discretion as to penalty. This is put on the basis that the penalty imposed on the plaintiff (suspension) was punitive rather than protective and hence excessive having regard to reasonably available alternatives that would have achieved the same protective function. It is submitted that, in misapplying its discretion, the Council reached a mistaken conclusion as to penalty (on the misunderstanding of the nature of a discretion and thus the misapprehension as to the nature of the power conferred by statute, see MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [68] per Mortimer J).

17. [68]

    In that regard, the plaintiff says that the main purpose served by disciplinary proceedings against lawyers is to protect members of the public from misconduct by lawyers (rather than to punish the lawyers); and hence that protection of the public is paramount.

18. [69]

    The plaintiff argues that (cf Clyne v New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40 at 202), loss of a licence to practise has a punitive effect (noting that such a loss can lead to diminished status, loss of reputation and loss of income).

19. [70]

    Reliance is placed on Harvey v Law Society of New South Wales (1975) 7 ALR 227, for the proposition that orders requiring a lawyer to cease practice immediately (and supply the Law Society of New South Wales with the names of all his clients in the previous 12 months or who had lent money to companies associated with him) were punitive in nature. Pausing here, on my reading of the Decision, what was regarded as punitive was the restriction on the sale of the lawyer’s practice, not the removal of his name from the roll of solicitors (that remaining unaffected by the variation of the orders that had been made). In any event, removal of a solicitor’s name from the roll is of a different nature entirely to a brief suspension from practising.

20. [71]

    Nevertheless, the plaintiff submits that it follows that, where practicable alternatives to the most severe punishment of disbarment or suspension of practising rights are available so as to protect the public (such as undertakings to desist from the subject conduct, warnings that continuing such conduct may lead to suspension, a significant fine which may act as a specific and general deterrent, reprimands, imposition of appropriate conditions on practice such as supervision and/or mandatory courses of education), then such alternatives must be considered and imposed (if appropriate and effective in achieving the protective function) so as to avoid unnecessary punishment of the lawyer (in particular “the grave punishment of suspension involving the deprivation of the means of earning a livelihood”).

21. [72]

    The plaintiff submits that in the present case the evidence does not establish that the plaintiff had been warned that if he engaged, or continued engaging, in the impugned conduct he would be suspended. It is submitted that there is also no evidence that the plaintiff was offered the opportunity to engage in an appropriate course of professional education so as to address “his alleged offending behaviour”. It is suggested that the defendant did not consider such alternatives; and that, for the proper exercise of its discretion, it was necessary for the defendant sufficiently to have turned its mind to (and properly to have considered) these alternatives before exercising its discretion as to penalty.

22. [73]

    The plaintiff submits that the defendant reached an erroneous conclusion as to penalty by failing to consider these reasonably available alternatives while exercising its discretion and contends that such misapplication of discretion amounts to jurisdictional error as it caused an erroneous conclusion (being the imposition of suspension on the lawyer) to be reached.

Defendant’s submissions

1. [74]

   Insofar as the plaintiff contends that, in exercising its powers under s 82(1)(d) of the Uniform Law, the Council was required to apply the test of proportionality, as described in McCloy, the defendant notes that there is no challenge to the validity of s 82(1)(d) pursuant to which the Council acted; and hence that no constitutional issue arises; the issue being one of administrative law only (a proposition with which the plaintiff expressly agrees).

2. [75]

   The defendant notes that the implied freedom of political communication “is a qualified limitation on legislative power implied in order to ensure that the people of the Commonwealth may ‘exercise a free and informed choice as electors’” (McCloy at [2]; citing Lange at 560); and is not a personal right (McCloy at [30]; Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 23 (Banerji) at [20]; LibertyWorks Inc v Commonwealth of Australia (2021) 391 ALR 188; [2021] HCA 18 at [44]). It is noted that, given that the implied freedom is a constitutional limitation on legislative power, it is concerned with the validity of legislation.

3. [76]

   The defendant points out that the question of whether a particular application of a law, by the exercise of a power or discretion conferred by statute, is valid is not a question of constitutional law; rather, the question is whether the repository of power has complied with the statutory limits (citing Wotton at [22] per French CJ, Gummow, Hayne, Crennan and Bell JJ; Commonwealth v AJL20 (2021) 391 ALR 562; [2021] HCA 21 at [43] per Kiefel CJ, Gageler, Keane and Steward JJ (AJL20)).

4. [77]

   It is noted that, in Banerji, the Court (having found that the relevant statutory provision was valid) rejected the submission that a decision was vitiated by the decision-maker’s failure to take the implied freedom into account in determining the sanction to be imposed (it there being argued that the implied freedom was an essential mandatory consideration in the exercise of the discretion, with the failure to consider it therefore resulting in jurisdictional error) (see at [43]). The Court there said at [44]-[45]:

5. [78]

   The defendant submits that an administrative decision-maker is not required to consider, in respect of every administrative decision, whether the implied freedom of political communication will be burdened by the decision. It is said that whether such a requirement exists must be determined by reference to the statute under which the decision is made and the discretion being exercised; and that in the present case the question is whether the Council’s exercise of power under s 82(1)(d) of the Uniform Law in suspending the plaintiff was within the scope of that statutory provision.

6. [79]

   The defendant submits that the first of the two sub-grounds alleged by the plaintiff (that the Council misunderstood, misinterpreted or misapplied the law, thereby falling into jurisdictional error) should be rejected for the following reasons.

7. [80]

   First, that s 82(1)(d) is valid in all its applications and no constitutional question arises (see AJL20 at [43]); and, to the extent the plaintiff submits that there is a private right of political discourse, as distinct from a constitutional limitation on legislative power, that submission is contrary to express High Court authority (referred to above). Similarly, it is submitted that the plaintiff’s submission that the interpretation and application of any legislation attracts the application of the three-step analysis in McCloy is wrong for the reasons outlined in Banerji and AJL20.

8. [81]

   Second, that the relevant question (as outlined in the line of cases comprising Wotton, Banerji and AJL20) in the context of an administrative decision is whether the decision-maker acted within the scope of the power conferred by the legislation (which may, by reason of its nature and scope, require consideration of the implied freedom of political communication – see Banerji at [45]). The defendant says that (to the extent that the plaintiff’s case on ground 1 is that: the exercise of the particular power in s 82(1)(d) of the Uniform Law required the Council to consider whether there would be an unnecessary burden imposed on the implied freedom of political communication; the Council failed to do so; and the failure to do so meant that the Council overlooked one or more reasonable alternative sanctions that would have imposed a less restrictive burden on the implied freedom) there is nothing self-evident in the nature and scope of the power conferred by s 82(1)(d) which requires that the Council consider the implied freedom when exercising its powers (cf Banerji at [44]-[45]). It is noted that the plaintiff has not pointed to any textual or contextual features of s 82(1) of the Uniform Law which would compel such an interpretation. Thus, the defendant contends that the plaintiff’s argument based on implied freedom has no foothold in the statutory provision.

9. [82]

   Third, the defendant says that the Council acted within the scope of the power conferred by s 82(1)(d) in resolving to suspend the plaintiff’s practising certificate. In this regard reference is made to the statement by the Council in its reasons at [7]-[8] (referred to above) to the effect that a less onerous action relative to suspension was the imposition of conditions, and it is said that the Council was mindful that it should consider that form of action. Reference is made to [94] of the reasons (also noted earlier) that:

10. [83]

    It is noted that the Council expressly referred to r 16 of the Uniform Rules, which prescribes the parameters for the imposition of discretionary conditions under s 53 of the Uniform Law (Reasons at [7], [94]). The defendant emphasises that, under that rule, the availability of conditions that may be imposed is not at large.

11. [84]

    It is submitted (by reference to the Council’s reasons) that the Council was aware of the appropriateness of considering less onerous action. It is submitted that there was no obligation on the Council to consider action which would specifically have a less restrictive effect on the implied freedom of political communication.

12. [85]

    Insofar as the plaintiff submits that the Council should have considered alternatives, such as professional education, the imposition of a supervision condition or a public reprimand, the defendant points out that, while variation of a certificate is contemplated in s 82(1), that provision does not provide for a public reprimand as a form of action. In any event it is said that the Council was not required to recite every possible action it could, but did not, take. It is said that the Council adverted to, and considered, a less restrictive option of imposing conditions (again referring to the reasons at [7]-[8], [94]).

13. [86]

    It is noted that the arguments made by the plaintiff in his response were comprehensively addressed by the Council (referring to the reasons at [20]-[21], [25]-[27], [31][34], [48], [50]-[51], [57], [63], [68], [77]-[78], [83]-[84], [89], [92]) and that the plaintiff does not make any complaint about the adequacy of the reasons or the way in which the Council addressed his Response.

14. [87]

    As to alternatives proposed by the plaintiff in his without prejudice offer, the defendant emphasises the following matters.

15. [88]

    First, that the Council was not required to consider arguments proposed as part of an offer to “resolve all matters” (including matters unconnected to the proposed action in the s 83 notice) on a “without admissions basis”. It is said that there was nothing to stop the plaintiff from formally stating in the response that a less onerous action than suspension should be taken and identifying such an action; and that the without prejudice offer is of no relevance.

16. [89]

    Second, it is noted that the Council is required to exercise its powers within the scheme of the Uniform Law, rather than arriving at a conclusion based on negotiation with the holder of the practising certificate. The defendant points out that the Council was not persuaded that the plaintiff had any understanding or insight into the fact that his conduct was contrary to his duties as a legal practitioner (referring to the reasons at [57], [77], [83], [92]); and considered that suspension was an appropriate action. The defendant says that that was a decision open to the Council to make on the merits.

17. [90]

    Third, it is noted that, in the without prejudice offer, the plaintiff did not propose that conditions of supervision and/or professional education be imposed but, rather, that he would provide an undertaking, among other things, to cease utilising social media accounts in the name of “G&B Lawyers”, both on Facebook and Twitter. The defendant says that insofar as the plaintiff now seeks to rely on that offer as effecting a lesser restriction on his freedom of political communication than the action of suspension taken by the Council, the plaintiff does not clarify how ceasing to utilise all social media accounts in the name of “G&B Lawyers” would have had a less restrictive effect on his ability to engage in political communication than the action of suspension.

18. [91]

    Fourth, the defendant argues that under the Uniform Law a suspension does not have any direct effect on a person’s speech and it is noted that the plaintiff has not explained how his ability to engage in political discourse has been stymied by reason of his suspension, nor has he adduced any evidence to that effect.

19. [92]

    As to the second ground raised in the plaintiff’s submissions (as an aspect of ground 1 in the plaintiff’s amended summons – not ground 2 as articulated in the amended summons), which raises an argument that the “penalty” imposed by the Council was punitive rather than protective (and hence excessive having regard to reasonably available alternatives that would have achieved the same protective function) the defendant emphasises that s 82(1) is concerned with three forms of action that the Council may take on the grounds specified in sub-sections (a) to (d) (i.e., to vary, suspend or cancel a certificate). The defendant says that the section does not create, in the manner suggested by the plaintiff, a disciplinary proceeding where a conclusion of unsatisfactory professional conduct or professional misconduct is reached, followed by the imposition of a protective “penalty” (referring by way of contrast to ss 299 and 302 of the Uniform Law).

20. [93]

    The defendant says that there is nothing in the reasons which shows that the Council’s action was punitive in character, i.e., that it was designed to punish him; and that the plaintiff’s submission (without citation of authority) is merely that if an alternative is available, it must be imposed, rather than suspension. Again, the defendant points to the fact that the Council considered the alternative of imposing conditions and concluded that the imposition of any available condition would not appropriately address the deficiencies exhibited by his conduct (reasons at [7]-[8], [94]). In this regard, the defendant emphasises that the Council found that the plaintiff had shown no understanding or insight into his actions (reasons at [57], [77], [83], [92]). Thus, it is submitted that the contention of the plaintiff that the Council should have properly considered alternatives has no force.

21. [94]

    It is submitted that, having considered the actions available under s 82(1), it was open to the Council to take the action of suspending the plaintiff’s certificate; and that, to the extent that the plaintiff submits that, having considered the availability of alternative measures, the Council should have preferred one of those alternative measures, that is a challenge to the merits of the Decision (impermissible on a merits review).

22. [95]

    The defendant further says that it is incorrect for the plaintiff to submit (as he does at [31]) that he was not warned that his practising certificate would be suspended. The defendant says that the plaintiff was given the appropriate notice under s 83 of the Uniform Law (reasons at [94]). It is said that there was no other obligation for the Council to warn him or offer him different avenues on an informal basis, as submitted by the plaintiff.

23. [96]

    Finally, it is submitted that if, contrary to the defendant’s submissions, any of the grounds of review is established, the relief sought by the plaintiff should be refused on discretionary grounds on the basis that the plaintiff had available to him a statutory right to appeal under s 100 of the Uniform Law, which he did not invoke.

24. [97]

    It is noted that the plaintiff seeks prerogative writs pursuant to s 69 of the Supreme Court Act 1970 (NSW) and that the grant of such relief is discretionary, with one compelling bar to relief being the availability of alternative remedies (the defendant referring to Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 197 ALR 389; [2003] HCA 26 at [33] per Gummow and Callinan JJ; Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 at [121] per Sackville AJA (Leeming JA and Adamson J agreeing); JS v Secretary, Department of Family and Community Services [2014] NSWCA 441 at [55] per Sackville AJA). Reference is made to the observation that prerogative relief “aimed at a first instance decision of a statutory tribunal will often be declined on discretionary grounds where there exists a statutory appeal mechanism of which an applicant is yet to (or has chosen not to) avail him or herself” (McKerlie v RateIt Australia Pty Ltd [2020] FCA 1112 at [30]; and reference is also made in this context to Alajmi v Macquarie University [2019] NSWSC 1026 at [248]).

25. [98]

    The defendant says that the plaintiff had available to him an alternative statutory remedy under s 100 of the Uniform Law. It is noted that s 100(1)(b) relevantly provides that the holder of an Australian practising certificate may appeal to the designated tribunal against a decision of the Council to suspend the practising certificate; and that, pursuant to s 100(2), the appeal may be made to review the merits of the decision concerned.

26. [99]

    Pursuant to s 11(3) of the Legal Profession Uniform Law Application Act 2014 (NSW), this Court is the designated tribunal for the purposes of an appeal pursuant to s 100 of the Uniform Law in respect of a decision made under s 82. It is noted that the Court may make any order it considered appropriate on an appeal (see s 100(3) of the Uniform Law) and that fresh evidence, or evidence in addition to or in substitution for matters before the regulatory authority may be given (see s 100(6)). It is noted that at the time the Council’s Decision was provided to the plaintiff, he was notified that he could appeal the Decision to this Court pursuant to s 100(1) of the Uniform Law.

27. [100]

    The defendant says that the statutory remedy available to the plaintiff gave him the opportunity to obtain a merits review, including based on fresh evidence, and to allege errors of law as required; and that the plaintiff chose not to pursue that course, which he was required to do within 28 days of being notified of the Decision (see r 50.3 of the Uniform Civil Procedure Rules 2005 (NSW)); instead, on the 28th day after the Decision, the plaintiff commenced these proceedings for judicial review.

28. [101]

    The defendant says that, in light of the plaintiff’s failure to utilise a more appropriate avenue of statutory appeal, this is an appropriate case to refuse relief in the exercise of the Court’s discretion.

Determination

1. [102]

   It is relevant at the outset to note the limits of an application for judicial review for jurisdictional error (which have been comprehensively explained in Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCA 294 per Leeming JA and by the majority of the Court of Appeal in Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337 (Stanley)). It is worth setting out these principles at some length.

2. [103]

   In Stanley, Bell P said:

3. [104]

   In Stanley, Basten JA said:

4. [105]

   In Quinn, Leeming JA said (addressing submissions that the failure in that case of the decision-maker to address “community safety”, which was argued to be a mandatory consideration when the decision-maker (being the sentencing court) is deciding whether to make an intensive correction order, was an error going to jurisdiction, for which proposition the parties relied upon Wany v Director of Public Prosecutions (2020) 103 NSWLR 620; [2020] NSWCA 318) (Wany) as to the reasoning in [67]-[68] of Wany:

5. [106]

   In Quinn, Leeming JA was dealing with a piece of legislation which, by its terms, required the Court to consider various matters. That is not the case here.

6. [107]

   The plaintiff in the present case contends, in essence, that the Council was required (when determining whether to vary, suspend or cancel the plaintiff’s practising certificate) to take into account and apply principles that would be applicable had the issue been one as to the constitutional validity of s 82(1)(d) of the Uniform Law. I do not accept that there is anything in the text or context of the Uniform Law (or s 82(1)(d) in particular) that makes it a condition of the jurisdiction to suspend a practitioner’s practising certificate that such principles (and in particular the requirement of proportionality) be applied. What is necessary for the discretion to be enlivened is the formation of a reasonable belief that the legal practitioner is unable to fulfil the inherent requirements of an Australian legal practitioner. Here, the defendant clearly addressed in its reasons what those inherent requirements entailed and how it was that the impugned conduct failed to meet those requirements; the Court is not (and cannot be) called upon to review the merits of those findings. The defendant was not required by the terms of the Uniform Law to consider the implied freedom and the requirement of proportionality, and, in any event, the failure to do so cannot be said to go to jurisdiction. The defendant also reached conclusions as to the inability of the plaintiff to understand or appreciate that his conduct was in breach of those requirements and not only is there no merits review as to those findings but also on the material those findings were clearly open to the defendant.

7. [108]

   In my opinion, there has been no jurisdictional error established as contended for in the first way in which the plaintiff puts his argument. As to the question whether there was jurisdictional error by not taking into account alternative remedies that might have been imposed (and noting the defendant’s submission that s 82(1)(b) itself provides only for a variation, suspension or cancellation of the legal practitioner’s practising certificate), the first difficulty with the plaintiff’s argument is that the defendant clearly did take into account that there might be less onerous actions available (such as the imposition of conditions). The Council expressly noted its opinion that the imposition of any available condition would not appropriately address the deficiencies exhibited by the plaintiff’s conduct (see at [94]). That opinion was not so inherently unreasonable as to suggest any jurisdictional error. It is certainly not a decision that no reasonable person in the position of the defendant could have reached. Nor can it be described as having been imposed as a punitive measure. The Council clearly had regard to the paramountcy of public interest in the administration of justice (see its reasons) and the fact that the comments were made by a legal practitioner on a law firm’s social media accounts and carrying with them the imprimatur of the legal practitioner’s status as a legal practitioner and officer of the Court, coupled with the fact that the solicitor was the solicitor on the record in the very proceedings the subject of the impugned comments, makes clear the need to give weight to the upholding of public confidence in the administration of justice (a fundamental tenet of the rule of law).

8. [109]

   For those reasons, the plaintiff’s claim should be dismissed. Had I been persuaded that there was jurisdictional error, I would have declined to exercise the discretion to grant the relief sought in circumstances where the plaintiff had available to him a merits appeal and chose not to take that course and in circumstances where the suspension will shortly come to an end in any event.

Orders

1. [110]

   For the above reasons, I make the following order:

   1. (1)

      Dismiss the plaintiff’s amended summons with costs.