Supreme Court of New South Wales. Is the question of whether, in applying a legislative power or discretion that does not infringe on the Constitution and is thus valid, the application of that power infringes on the Constitution a question of constitutional law? If not, does it mean that the implied freedom of political communication may not be a relevant consideration in the exercise of a discretion under any legislation?
Section 78B(1) of the Judiciary Act 1903 (Cth) provided as follows:
(1) Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys‑General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys‑General, of the question of intervention in the proceedings or removal of the cause to the High Court
Some of the questions to the Supreme Court of New South Wales (SCNSW) were as follows:
Question 1: May the late stage at which the service of s 78B notices occur "be 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"?
Question 2: Is the question of whether, in applying a legislative power or discretion that does not infringe the Constitution and is thus valid, the application of that power infringes on the Constitution a question of constitutional law?
Question 3: If the answer to Question 2 is 'no', does it mean that the implied freedom of political communication may not be a relevant consideration in the exercise of a discretion under any legislation?
The SCNSW answered those questions as follows: