LWB242 Constitutional Law

1. LWB242 Constitutional Law • Lecture 12: Rights and freedoms implied in the Constitution Photo: “Free Speech” by Newtown Graffitti from Flickr http://www.flickr.com/photos/newtown_grafitti/5363515370/ (Licensed under a Creative Commons License Attribution 2.0 Generic (CC BY 2.0)

2. Activity Online Quiz

3. Freedom of Political Communication “Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates by directing that the members of the House of Representatives and the Senate shall be ‘directly chosen by the people’ of the Commonwealth and the States, respectively.” (Lange v Australian Broadcasting Corporation(1997) 189 CLR 520 at 559)

4. Background • The founding fathers deliberately included few express rights and freedoms in the Constitution, as Dawson J noted in Kruger v Commonwealth at 61: • In a number of recent cases it has been pointed out that the Australian Constitution, with few exceptions and in contrast with its American model, does not seek to establish personal liberty by placing restrictions upon the exercise of governmental power. Those who framed the Australian Constitution accepted the view that individual rights were on the whole best left to the protection of the common law and the supremacy of parliament. Thus the Constitution deals, almost without exception, with the structure and relationship of government rather than with individual rights. The fetters which are placed upon legislative action are, for the most part, for the purpose of distributing power between the federal government on the one hand and State governments on the other, rather than for the purpose of placing certain matters beyond the reach of any parliament. The Constitution does not contain a Bill of Rights. Indeed, the 1898 Constitutional Convention rejected a proposal to include an express guarantee of individual rights based largely upon the 14th Amendment to the United States Constitution and including a right to due process of law and the equal protection of laws. The framers preferred to place their faith in the democratic process for the protection of individual rights and saw constitutional guarantees as restricting that process. Thus the Constitution contains no general guarantee of the due process of law.

5. Background • However, while the Constitution contains few express rights and freedoms, the High Court has recognised that the system of representative government created by the Constitution gives rise to an implied freedom of political communication. • While this implied freedom of political communication is now an accepted feature of Australian constitutional jurisprudence, it remains quite controversial and questions persist about its ambit. • Key features of the implied freedom of political communication include: • it is an implication derived from the text and structure of Constitution - implied from representative and responsible government. • it relates to communication on government and political matters. • it protects political discussion in relation to all levels of government. • it limits Commonwealth and States. • it is not absolute.

6. Background • The origins of the implied freedom of political communication can be found in these cases: • Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 • Miller v TCN Nine Pty Ltd (1986) 161 CLR 556 • Davis v Commonwealth (1988) 166 CLR 79

7. Breakthrough • Australian Capital Television Pty Ltd v Commonwealth • The Political Broadcasts and Political Disclosures Act 1991 (Cth) inserted Part IIID into the Broadcasting Act 1942 (Cth). Part IIID introduced a ban on electronic broadcasting of political advertising during election periods and required broadcasters to make available free time for election advertising by political parties, as allocated by Australian Broadcasting Tribunal. • Held, by a majority of six judges (with Dawson J dissenting), that the Constitution contained an an implied guarantee of freedom of communication on political matters, which is required by the system of representative democracy for which the Constitution. Mason CJ, Deane, Toohey, Gaudron and McHugh JJ invalided the statute as an infringement of this implied freedom. • Mason CJ at 139: “Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives; government would cease to be responsive to the needs and wishes of the people and, in that sense, would cease to be truly representative.” • McHugh J at 227:“When the Constitution is read as a whole and in the light of the history of constitutional government in Great Britain and the Australian colonies before federation, the proper conclusion to be drawn from the terms of ss.7 and 24 of the Constitution is that the people of Australia have constitutional rights of freedom of participation, association and communication in relation to federal elections.” • Brennan J recognised the implied freedom of political communication but held that it was proportionate to the legitimate aim of reducing corruption in the political process.

8. Breakthrough • Nationwide News Pty Ltd v Wills • Section 299(1)(d)(ii) of the Industrial Relations Act 1988 (Cth) made it an offence for any person to use words calculated to bring a member of the Industrial Relations Commission, or the Commission, into disrepute. The defences which were ordinary available to persons charged with such an offence, defences such as “fair comment” or “honest and reasonable mistake of fact” had been removed. • Held, the prohibition was unconstitutional. Brennan, Deane, Toohey and Gaurdon JJ relied on the implied freedom of political communication to strike down the provision. Mason CJ, Dawson and McHugh JJ struck down the law on other grounds. • Brennan J at 48-9: “where a representative democracy is constitutionally entrenched, it carries with it those legal incidents which are essential to the effective maintenance of that form of government. Once it is recognized that a representative democracy is constitutionally prescribed, the freedom of discussion which is essential to sustain it is as firmly entrenched in the Constitution as the system of government which the Constitution expressly ordains.” • Deane and Toohey JJ at 72-3: • “the doctrine of representative government ... presupposes an ability of represented and representatives to communicate information, needs, views, explanations and advice. It also presupposes an ability of the people of the Commonwealth as a whole to communicate, among themselves, information and opinions about matters relevant to the exercise and discharge of governmental powers and functions on their behalf. • It follows from what has been said above that there is to be discerned in the doctrine of representative government which the Constitution incorporates an implication of freedom of communication of information and opinions about matters relating to the government of the Commonwealth.”

9. Expansion • Theophanous v Herald and Weekly Times • Bruce Ruxton, a former President of the Returned Services League, wrote a letter that was published by Herald and Weekly Times Ltd which accused Theophanous, a member of the House of Representatives and chair of a joint parliamentary committee on migration, as being biased towards Greek immigrants and “idiotic”. Theophanous brought proceedings against the defendant for defamation. The defendant argued, amongst other things, that the implied freedom of political communication had an impact on the law of defamation which effectively immunised them against suits by politicians. • Held, the implied freedom of political communication could be pleaded as a defence in defamation to actions brought by politicians and others engaged in public debate. Mason CJ, Deane, Toohey and Guadron JJ held that: • (1) There is implied in the Commonwealth Constitution a freedom to publish material: (a) discussing government and political matters; (b) of and concerning members of the Parliament of the Commonwealth of Australia which relates to the performance by such members of their duties as members of the Parliament or parliamentary committees; (c) in relation to the suitability of persons for office as members of the Parliament. • (2) In the light of the freedom implied in the Commonwealth Constitution, the publication will not be actionable under the law relating to defamation if the defendant establishes that: (a) it was unaware of the falsity of the material published; (b) it did not publish the material recklessly, that is, not caring whether the material was true or false; and (c) the publication was reasonable in the circumstances. • (3) A publication that attracts the freedom implied in the Commonwealth Constitution can also be described as a publication on an occasion of qualified privilege. Whether a federal electionis about to be called is not a relevant consideration.

10. Expansion • Stephens v West Australian Newspapers • The plaintiffs were members of the Western Australian Legislative Council, who had undertaken an overseas study trip at taxpayers’ expense and were the subject of criticism in a number of articles in the West Australian newspaper that said that the politicians had gone overseas without the knowledge of the parliament and had undertaken “a junket of mammoth proportions”. The plaintiffs sued for defamation. • Held, the implied freedom of political communication (which they found existed in the Commonwealth Constitution and the Constitution Act 1899(WA)) extended to “criticism of the conduct, performance and fitness for office of a member of Parliament”.

11. Expansion • Although Theophanousand Stephensmark the zenith of the implied freedom of political communication, in both cases the following division emerged: • dissents from Brennan, Dawson & McHugh JJ as to the nature and extent of the implied freedom; and • Deane J in the majority had a wider view of the scope of the freedom in regard to defamation than Mason CJ, Toohey and Gaudron JJ. • In Lange v Australian Broadcasting Corporation, in a rare unanimous joint judgment, the High Court clarified the scope of the implied freedom of political communication.

12. Current formulation: Lange • Lange v Australian Broadcasting Corporation • The plaintiff, a member of the New Zealand Parliament and former Prime Minister, brought a defamation action against the ABC alleging that he had been defamed during a Four Corners program. • Held, the Constitution conferred no private right of defence but instead created an immunity against legislative incursion into free communication in respect of political matters. • The court expanded the common law defence of qualified privilege to provide a protection for criticism of politicians. • The court took the opportunity to settle several of the disputed questions arising from their earlier decisions.

13. Current formulation: Lange • General principles from Lange(at 559-562): • Freedom of communication on matters of government and politics is an indispensable incident of the system of representative government which the Constitution creates. • Sections 7, 24 and related provisions necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors. • The freedom is not confined to an election period. • The freedom is not absolute: it is limited to what is necessary for the effective operation of the system of representative and responsible government.

14. Current formulation: Lange • The High Court in Lange said that in order to determine whether a State, Federal or Territorial Law is valid, two questions must be answered: • does the law effectively burden freedom of communication about government or political matters either in its terms, or its effect? • if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end, the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. • This remains the correct test, with the exception of a minor alternation made by the Court in Coleman v Power.

15. Current formulation: Coleman v Power • Coleman v Power • Coleman was protesting in Townsville. He was distributing pamphlets which contained charges of corruption against several police officers, including Power. Power had approached the Coleman and asked to see a pamphlet. Coleman pushed Power, and said loudly: "This is Constable Brendan Power, a corrupt police officer". The magistrate who dealt with the case said that the appellant was not protesting against any laws or government policies, but was conducting a "personal campaign related to particular officers of the Townsville Police". Although there was a dispute as to the precise sequence of events, the prosecution case against the appellant, which was substantially accepted by the magistrate, was that the pushing and the verbal insult were intended to provoke an arrest. Coleman was convicted of using insulting words in a public place, contrary to the Vagrants, Gaming and Other Offences Act 1931(Qld). • Held, that Coleman's conviction for using insulting words to a police officer should be set aside. • The majority (Gummow, Hayne, McHugh and Kirby JJ) held that s7(1)(d) of the Vagrants Actwas either constitutionally invalid under Lange or should be interpreted in a manner that did not capture Coleman's conduct. McHugh and Kirby JJ held that the implied freedom affected the outcome of this case - s7(1)(d) needed to be interpreted so that it did not capture insults made during communication about government or political matters. Gummow and Hayne JJ held that Coleman's words were not 'insulting words', and so did not need to apply the Lange test.

16. Current formulation: Coleman v Power • General principles from Coleman v Power: • A majority of the court held that communications alleging corruption by State police were capable of protection under the implied freedom of political communication. • A majority of the court also accepted that the political communication protected under Lange could include insults. Kirby J at [239] said: • “From its earliest history, Australian politics has regularly included insult and emotion, calumny and invective, in its armory of persuasion... Anyone in doubt should listen for an hour or two to the broadcasts that bring debates of the Federal Parliament to the living rooms of the nation.” • A majority of the court also slightly reformulated the test from Lange.

17. Activity Reading: Coleman v Power

18. Activity Online Quiz

19. Freedom of association “It is clear, and it has been so held, that the fundamental elements of the system of government mandated by the Constitution require that there be freedom of political communication between citizens and their elected representatives and also between citizen and citizen. However, just as communication would be impossible if ‘each person was an island’, so too it is substantially impeded if citizens are held in enclaves, no matter how large the enclave or congenial its composition. Freedom of political communication depends on human contact and entails at least a significant measure of freedom to associate with others. And freedom of association necessarily entails freedom of movement.” (Kruger v Commonwealth(1997) 190 CLR 1 per Gaudron J at 115

20. Not yet • The High Court is yet to recognise an implied freedom of movement and association. • In Kruger v Commonwealth, Toohey, Gaudron and McHugh JJ appeared in favour of recognising such a right. • As to political association, in Mulholland v Australian Electoral Commissioner (2004) 220 CLR 181, Gummow, Hayne & Heydon JJ recognised such a right only if related to freedom of political speech, McHugh and Kirby JJ were in favour, and Callinan J was against.