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The constitutional right to freedom of political speech.
Constitutional basis for the decision
The Sovereignty of Parliament
Implied doctrines in the Constitution
The doctrines implied by the Constitution
Separation of powers
Representative Government and
freedom of political discourse
What types of communication are given
Freedom of political discourse
is not absolute
The role of the Parliament and the Courts
in the balancing process
The tests to be applied
The nature of the restriction
The balancing test
How the Court balanced the interests in the
Political Ads Case
The implications from federalism
and protection of the States
Application of freedom of political discourse
to the Territories
Possible consequences of the cases
Election blackout period
Privilege for journalists
A de facto Bill of Rights?
On 30 September 1992, the High Court of Australia handed down its reasons for judgment in Australian Capital Television Pty Ltd v The Commonwealth 1 (the 'Political Ads Case') and Nationwide News Pty Ltd v Wills 2 ( 'Nationwide News').
In the Political Ads Case, the High Court held that Part IIID of the Broadcasting Act 1942 was invalid. In brief, Part IIID prohibited the broadcasting of political advertisements on radio or television during election periods except for those broadcast during 'free time' allocated by the Australian Broadcasting Tribunal.
Nationwide News dealt with s. 299(1)(d)(ii) of the Industrial Relations Act 1988, which stated that a person may not, by writing or speech, use words calculated to bring a member of the Industrial Relations Commission into disrepute. The main problem with the provision was that it did not allow a person to make valid criticisms of the Commission. The High Court held that this provision was invalid.
Both cases dealt with the right to communicate about political matters, whether they be elections or criticism of a government institution. 3 Although this Issues Brief concentrates the Political Ads Case, some of the Justices in that case referred to their respective judgments in Nationwide News for greater detail on particular points. Accordingly, this Issues Brief refers to statements from the judgments in both cases, the cases are distinguished in the paper and the footnotes. 4
Constitutional basis for the decision
The sovereignty of Parliament
Unlike the Westminster Parliament, the Commonwealth Parliament is not sovereign. It is subject to the paramount authority of the Constitution.
The specific powers granted to the Commonwealth under s. 51 of the Constitution, are expressed to be 'subject to this Constitution', and this phrase has been interpreted to mean both the words and structure of the Constitution.
Implied doctrines in the Constitution
As Justice Gaudron stated in the Political Ads Case:
Fundamental constitutional doctrines are not always the subject of exhaustive constitutional provision, either because they are assumed in the Constitution or because what they entail is taken to be so obvious that detailed specification is unnecessary. 5
Therefore, in order to give effect to the words of the Constitution, the High Court must have regard to the fundamental constitutional doctrines which the words and structure of the Constitution imply. This is by no means a new process of interpretation. It has long been recognised by the High Court that the Constitution contains more than the bare words on the page.
Back in 1937, Sir Owen Dixon, one of Australia's most eminent judges, stated in a judgment that the High Court should avoid pedantic and narrow constructions in dealing with the Constitution, and should not be fearful about making implications. 6
Justice Windeyer later made the point that the Court does not 'make implications', but rather reveals or uncovers implications which are already there. 7 In order to reveal or uncover an implication, one must seek it embedded in the text and structure of the Constitution.
The doctrines implied by the Constitution
There are three long established doctrines which have been implied from the Constitution:
(1) the separation of powers;
(2) federalism; and
(3) representative government.
These implications are based upon both the words of the Constitution, and the structure of government that it establishes.
Justices Deane and Toohey noted in their joint judgment in Nationwide News that most court attention has been directed to the first two of these fundamental implications of the Constitution. 8
Separation of powers
The doctrine of the separation of powers has led to court decisions as to the extent of judicial power and the conclusion that no body other than a court established under Chapter III of the Constitution can exercise the judicial power of the Commonwealth.
On the implication to be derived from the federal structure of the Constitution, Justices Deane and Toohey stated:
...it is a fundamental implication to be derived from the nature of the federal system established by the written terms of the Constitution that the legislative and executive powers conferred upon the Commonwealth are confined to the extent necessary to preclude their use in a manner which would be inconsistent with either the continued existence of the States as independent entities or their capacity to function as such. 9
Although two of the Justices relied on this constitutional implication in relation to one aspect of the Political Ads Case, most attention was paid to the third implication of 'representative government'.
The doctrine of representative government is derived principally from sections 7 and 24 of the Constitution which provide that the members of the two Houses of Parliament shall be directly chosen by the people. The constitutional requirement of s. 64, that Ministers of State be elected members of Parliament (if they are to hold office for longer than three months), also ensures that the Executive is accountable to the people through the Parliament and through elections.
Chief Justice Mason stated in the Political Ads Case:
The very concept of representative government and representative democracy signifies government by the people through their representatives. Translated into constitutional terms, it denotes that the sovereign power which resides in the people is exercised on their behalf by their representatives.... The point is that the representatives who are members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act. 10
Representative Government and freedom of political discourse
The essential elements of representative government are the free election of the representatives, and the responsibility of those representatives to the will of the people. Six of the seven members of the High Court reached the conclusion that freedom of communication about political matters and public affairs is necessary to maintain representative government.
Chief Justice Mason followed his statement above in the Political Ads Case by saying:
Indispensable to that accountability and that responsibility is freedom of communication, at least in relation to public affairs and political discussion. Only by exercising that freedom can the citizen communicate his or her views on the wide range of matters that may call for, or are relevant to, political action or decision. Only by exercising that freedom can the citizen criticise government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives.... 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. 11
Justice McHugh discussed similar concerns, but focussed more closely upon the formation of the decision by electors of how to vote. If voting is to be the free choice of the people, then they must have uninhibited access to information upon which to base that decision. His Honour stated:
If the institutions of representative and responsible government are to operate effectively and as the Constitution intended, the business of government must be examinable and the subject of scrutiny, debate and ultimate accountability at the ballot box. The electors must be able to ascertain and examine the performances of their elected representatives and the capabilities and policies of all candidates for election. Before they can cast an effective vote at election time, they must have access to the information, ideas and arguments which are necessary to make an informed judgment as to how they have been governed and as to what policies are in the interests of themselves, their communities and the nation. 12
Justice Brennan described the freedom of public discussion of government, and its institutions and agencies, as 'inherent in the idea of a representative democracy'. He went on to conclude:
... 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 recognised 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. 13
Justices Deane, Toohey and Gaudron also agreed that freedom of political discussion is essential to representative government, and therefore effectively entrenched by the Constitution. Only Justice Dawson dissented on this point, concluding that it is up to the Parliament to determine what type of representative democracy shall prevail in Australia.
The decision of the six Justices of the High Court to recognise that freedom of political discourse is essential to representative democracy has significant international precedent. The Chief Justice listed authorities in England, the United States, Canada and the European Court of Human Rights which recognise the fundamental importance of free political discourse to the system of representative government. 14 The most important decisions are those of the Supreme Court of Canada, as the structure of the Canadian Constitution is almost the same as Australian Constitution. As far back as 1938, Justices of the Supreme Court of Canada recognised that freedom of speech was an essential part of the democratic structure of their Constitution, and thus afforded constitutional protection from legislation which may trench upon it 15 .
What types of communication are given constitutional protection?
The Political Ads Case, and Nationwide News were concerned with communications about matters relating to government, namely the political matter involved in election advertisements, and criticisms directed at a government body. It was not necessary for the High Court to take the matter any further, or define the precise limits of protection.
The Chief Justice offered some guidance by noting that public affairs and political discussion are indivisible. They cannot be divided according to whether a matter is a 'state issue' or one concerning local government. 16
Justice Gaudron made similar comments, noting that the Constitution does not postulate a society that is free and democratic only at election time. 17 Nor does it confine its implication of freedom of political discourse to matters relating to Commonwealth powers. Her Honour pointed out:
Given the inter- relationship of State and Commonwealth powers and the recognition in the Constitution of the States' democratic processes, the freedom of political discourse must be seen as extending to matters within the province of the States. The freedom thus involves, at the very least, the free flow of information and ideas bearing on Commonwealth, State and Territory government, government arrangements and institutions, matters within the province of Commonwealth, State and Territory governments, their agencies and institutions, those persons who are or would be members of their Parliaments and other institutions of government and such political parties or organizations that exist to promote their cause. 18
Justices Deane and Dawson agreed with Justice Gaudron upon this matter. 19
Freedom of political discourse is not absolute
Each of the six Justices who held that freedom of political discourse was the subject of an implied constitutional protection, stated that this freedom is not absolute. 20 Their Honours recognised that this freedom, although important, may be subject to more important competing interests, such as national security, the administration of justice, or other laws necessary in an ordered and democratic society. In order to determine which interest should prevail, a balancing process must be undertaken.
The role of the Parliament and the Courts in the balancing process
This balancing process must be first undertaken by the Parliament. Justice Brennan saw the role of courts as merely supervisory. His Honour stated:
The balancing of the protection of other interests against the freedom to discuss governments and political matters is, under our Constitution, a matter for the Parliament to determine and for the Courts to supervise.
The role of the court in judicially reviewing a law that is said to curtail the freedom unduly and thereby to exceed legislative power is essentially supervisory. It declares whether a balance struck by the Parliament is within or without the range of legitimate legislative choice. In a society vigilant of its democratic rights and privileges, it might be expected that the occasions when the Parliament deliberately steps outside the range of legitimate choice would be few. 21
Chief Justice Mason also referred to the role of the Parliament in balancing freedom of political discourse against competing interests. His Honour stated that in balancing the interests, the Court will give weight to the legislative judgment on the matters, but in the end it is for the Court to determine whether the guarantee has been infringed. He continued by stating that the Court must 'scrutinise with scrupulous care any restrictions affecting free communication in the conduct of elections for political office.' 22
The tests to be applied
The nature of the restriction
In balancing the competing interests, it is important to ascertain the nature of the restriction on freedom of political discourse. If the restriction is on the content of the political discourse, then, in the words of Chief Justice Mason:
... only a compelling justification will warrant the imposition of a burden on free communication by way of restriction and the restriction must be no more than is reasonably necessary to achieve the protection of the competing public interest which is invoked to justify the burden on communication. Generally speaking, it will be extremely difficult to justify restrictions imposed on free communication which operate by reference to the character of the ideas or information. 23
If the restriction is only upon the time, place, manner or form of the communication, then it is less difficult to justify. The Chief Justice noted that the Political Ads Case involved this lesser kind of restriction.
The balancing test
The balancing test involves consideration of numerous factors, of which the following are the most important: 24
(1) the extent to which freedom of political discourse is restricted, and the effect this may have upon representative government;
(2) the importance of the competing interest in an ordered democratic society;
(3) whether the restriction on freedom of political discourse is proportionate to the interest served;
(4) whether the restriction does not go further than what is reasonably necessary to protect the competing interest; and
(5) whether there are other methods of protecting the competing interest which do not restrict freedom of political discourse.
How the Court balanced the interests in the Political Ads Case
The Justices of the Court considered the application of Part IIID of the Broadcasting Act 1942, and the extent to which it restricted political discourse. In summary, 25 the aspect of the legislation that drew most concern was that it favoured those individuals and parties who were already in the Parliament, and discriminated against those candidates who were not entitled to 'free time' for advertisements. It was not the 'level playing field' that it was claimed to be. Moreover, it prohibited other interest groups who had a contribution to make to the political debate, from advertising through the electronic media, which was generally acknowledged to be the most effective medium for such communications.
Members of the Court also noted that Part IIID was only applicable where regulations had been made in relation to an election, to grant free time. The Executive therefore had the power to either apply the ban on political ads, or discard it, according to its own advantage in the case of any election. As Justices Deane and Toohey observed, this 'scarcely serves to make the relevant legislative provisions more compatible with the standard of a democratic society'. 26 Chief Justice Mason was more direct stating:
It is difficult to conceive of a compelling, even of a reasonable, justification for a regime restricting freedom of communication which confers such an advantage on the Executive government. 27
Chief Justice Mason, and Justices Deane, Toohey, Gaudron and McHugh, all held that although the prevention of corruption is an important and legitimate interest, there was a disproportionate and impermissible infringement of freedom of political discourse.
Justices Deane and Toohey summed up the matter when they stated:
The elimination of corruption in the political processes is, of course, of great importance in the public interest. The argument that to achieve the postulated objectives it is necessary effectively to exclude the people of the Commonwealth, including legitimate special interest groups, from political communication on the electronic media during an election period unless they be political parties or candidates seems to us, however, quite unconvincing. 28
Justice Brennan, however, dissented on this point. He concluded that the minimisation of the risk of corruption is an important interest, and that the restrictions on freedom of political discourse aimed to achieve this end, were proportionate. 29
The implications from federalism and protection of the States
Although Justice Brennan concluded that the provisions regulating political advertising were not rendered invalid, he then went on to consider the provisions in relation to State elections.
His Honour stated:
Laws which affect the freedom of political discussion in matters relating to the government of a State, whether by enhancement or restriction of the freedom, are laws which burden the functioning of the political branches of the government of the State with statutory constraints and restrictions. Section 95D(3) and (4) is such a law.... Although s. 95D(3) and (4) is a law with respect to broadcasting, it is offensive to the implication which protects the functioning of the States from the burden of control by Commonwealth law. It is invalid on that account. 30
Justice McHugh also found subsections 95D(3) and (4) invalid 'because their immediate object was to control the States and their people in the exercise of their constitutional functions'. 31 The other Justices concluded that they did not need to consider the matter.
Application of freedom of political discourse to the Territories
Chief Justice Mason, and Justices Brennan and Gaudron noted that it was not necessary to decide whether Part IIID could be justified in the territories under s. 122 of the Constitution. 32
Justices Deane and Toohey did not firmly decide the matter, but indicated the following view:
In any event, we are not presently persuaded that s. 122's power to make laws "for the government of any territory surrendered by any State" is immune from the implications to be discerned in the Constitution as a whole, including the implication of freedom of political communication. 33
Justice McHugh dissented upon this point, concluding that:
There is nothing in s. 122 or anywhere else in the Constitution which suggests that laws made by the Commonwealth for the government of a territory are subject to prohibitions or limitations arising from the concepts of representative government, responsible government or freedom of communication. 34
Possible consequences of the Cases
Election blackout period
It is debatable whether the election blackout period for political advertising from midnight on the Wednesday preceding an election, if re- enacted, would be upheld. The limitation on political discourse would be clearly less severe because of the short duration of the blackout, but it would be at a vital period during the election campaign.
Some clues are provided in the judgments. Justice Brennan observed:
It is both simplistic and erroneous to regard any limitation on political advertising as offensive to the Constitution. If that were not so, there could be no blackout on advertising on polling day; indeed, even advertising in the polling booth would have to be allowed... 35
Justices Deane and Toohey, after discussing the 'level playing field' argument, stated that:
It may, for example, arguably support a total blackout of political advertisements in or on the media on election day. 36
It is interesting to note that both references are confined to the actual polling day.
In the United States, the principle that freedom of political discourse is essential to the democratic process, led the Supreme Court in New York Times v Sullivan 37 to develop different laws of defamation for 'public figures'. Public figures have the higher burden of proving 'malice' before they can receive damages for otherwise defamatory statements.
There is a possibility that the law of defamation, particularly in relation to political figures, where the impugned statements are made as part of criticism of the person's political performance or policies, could develop in the same way as it has in the United States.
The judgments in the Political Ads Case do not give any indication that this will occur. Justice Brennan appears to support the present defamation laws. His Honour observed:
Though freedom of political communication is essential to the maintenance of a representative democracy, it is not so transcendent a value as to override all interests which the law would otherwise protect. For example, it is a substantial restriction on freedom of political communication to make the publication of matter defamatory of a public figure unlawful unless the defamer can plead and prove justification or a defence of qualified privilege. Yet our law has not exposed public figures to the risk of defamation to the same extent as the Bill of Rights has been thought to expose them in the United States. 38
Justice Gaudron also lends some support to current defamation laws, stating:
Thus, in general terms, the laws which have developed to regulate speech, including the laws with respect to defamation, sedition, blasphemy, obscenity and offensive language, will indicate the kind of regulation that is consistent with the freedom of political discourse. 39
Justice McHugh, in referring to types of communications which may justifiably be prohibited, gave as examples 'defamatory, seditious and treasonable statements'. 40
The High Court has not indicated that it anticipates any change in the defamation laws to flow from the principles in the Political Ads Case. Nevertheless, this will certainly be an argument that will pursued by lawyers in the future.
Privilege for journalists
Statements made about the fundamental importance of the flow of information, particularly in relation to political matters and public affairs, may lend further support to arguments by journalists that they should not be compelled to reveal their confidential sources in court.
Nevertheless, the High Court has already indicated that it requires a balancing process to be undertaken when considering such matters, and that the public interest in the fair administration of justice is of great importance. 41 It is doubtful whether the Political Ads Case would add anything further to that balancing process, except perhaps to increase the awareness of the courts of the fundamental importance of the free flow of information in political matters and current affairs.
It has been reported that the tobacco industry is studying the judgment in the Political Ads Case in order to assess whether legislation banning tobacco advertisements could also be held invalid.
As the Political Ads Case does not recognise a full freedom of speech, and as it would be extremely difficult to classify tobacco advertising as 'political discourse', it seems most unlikely that the legislation would be held invalid. Even if a balancing process were entered into, the interest in public health would seem likely to prevail over any public interest in maintaining tobacco advertising.
The High Court's judgments may have some implications concerning the proposed introduction of amendments to the Crimes Act 1914 (Cth) prohibiting racial vilification and incitment to hatred. 42
A de facto Bill of Rights?
Notwithstanding some assertions in the press, the High Court did not decide that fundamental rights and freedoms are guaranteed by the Constitution. Chief Justice Mason noted that the framers of the Constitution deliberately did not include a Bill of Rights, on the basis that a citizen's rights are best protected by the common law and by the Parliament. His Honour went on to state:
In the light of this well recognised background, it is difficult, if not impossible, to establish a foundation for the implication of general guarantees of fundamental rights and freedoms. To make such an implication would run counter to the prevailing sentiment of the framers that there was no need to incorporate a comprehensive Bill of Rights in order to protect the rights and freedoms of citizens. 43
Justice Brennan raised the same issue, stating:
A court will interpret laws of the Parliament in the light of a presumption that the Parliament does not intend to abrogate human rights and fundamental freedoms but the court cannot deny the validity of an exercise of a legislative power expressly granted merely on the ground that the law abrogates human rights and fundamental freedoms or trenches upon political rights which, in the court's opinion, should be preserved. A function of that kind may be conferred on a court exercising a jurisdiction to review judicially laws enacted under a Constitution containing a Bill of Rights, but our Constitution does not contain a Bill of Rights. 44
The High Court decisions in the Political Ads Case and Nationwide News were therefore based on the principle that only when a right is essential to maintain one of the three implied doctrines which form part of the Constitution, namely the separation of powers, federalism or representative government, will that right be granted constitutional protection, subject to competing public interests.
The real question then becomes, what elements are essential to the maintenance of representative government? Justice McHugh answered this question by stating that 'freedom of participation, association and communication in relation to federal elections' are to be discerned from sections 7 and 24 of the Constitution. 45
Justice Gaudron took the matter further by observing:
The notion of a free society governed in accordance with the principles of representative parliamentary democracy may entail freedom of movement, freedom of association and, perhaps, freedom of speech generally. But so far as free elections are an indispensable feature of a society of that kind, it necessarily entails, at the very least, freedom of political discourse. 46
Even the Chief Justice suggested there may be an opening for identifying a wider freedom of speech:
Whether freedom of communication in relation to public affairs and political discussion is substantially different from an unlimited freedom of communication and, if so, what is the extent of the difference, are questions which were not debated and do not call for decision. 47
This matter will undoubtedly be debated and arise for decision in the future.
1 Unreported, High Court of Australia, Judgment F.C. 92/033.
2 Unreported, High Court of Australia, Judgment F.C. 92/032. The High Court had handed down its decision in the two cases on ... August 1992, but without the reasons for judgment.
3 The cases raised other issues such as the interpretation of s.92 of the Constitution and the meaning of acquisition of property for the purposes of s.51(xxxi) of the Constitution.
4 References are to the High Court Judgments.
5 Page 92.
6 West v Commissioner of Taxation (N.S.W.) (1937) 56 CLR 657, 682.
7 The Payroll Tax Case (1971) 122 CLR 353, 401- 2.
8 Page 50.
9 Nationwide News, page 50.
10 Page 17.
11 Page 18.
12 Political Ads Case, p. 115.
13 Nationwide News, p. 29.
14 Political Ads Case, pp. 19- 20.
15 Re Alberta Legislation  2 D.L.R. 81, per Duff C.J. and Davis J. at pp. 107- 108.
16 Political Ads Case, p. 22.
17 Political Ads Case, p. 98.
18 Political Ads Case, p. 100.
19 Political Ads Case, p. 50.
20 Political Ads Case, Mason C.J. at p. 22; Brennan J. at p. 40; Deane and Toohey JJ. at p. 50; Gaudron J. at p. 100; and McHugh J. at p. 118.
21 Nationwide News, pp. 31- 32.
22 Political Ads Case, p. 24.
23 Political Ads Case, p. 23, and see also McHugh J. at p. 119.
24 These considerations have been gathered from statements made in the Political Ads Case by Mason C.J. at p. 23, Deane and Toohey JJ. at p. 55, Gaudron J. at p. 101, McHugh J. at p. 120 and Brennan J. in Nationwide News at pp. 30- 32.
25 See generally in the Political Ads Case, Mason C.J. at pp. 25- 27; Deane and Toohey JJ. at pp. 53- 54; Gaudron J. at p. 103- 104; and McHugh J. at pp. 120- 124.
26 Political Ads Case, p. 55.
27 Political Ads Case, p. 27.
28 Political Ads Case, p. 56.
29 Political Ads Case, pp. 40- 42.
30 Political Ads Case, p. 44.
31 Political Ads Case, p. 125.
32 Political Ads Case, Mason C.J. at p. 27; Brennan J. at p. 43; and Gaudron J. at p. 99.
33 Political Ads Case, p. 57.
34 Political Ads Case, p. 129.
35 Political Ads Case, pp. 39- 40.
36 Political Ads Case, p. 56.
37 376 U.S. 254 (1963).
38 Political Ads Case, p. 40.
39 Political Ads Case, p. 100.
40 Political Ads Case, p. 120.
41 John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346.
42 This issue may be addressed in a later paper. The issue of racial vilification and free speech has received extensive analysis in the United States.
43 Political Ads Case, p. 15.
44 Nationwide News, p. 23.
45 Political Ads Case, p. 111.
46 Political Ads Case, p. 95.
47 Political Ads Case, pp. 21- 22.
ISSN 1038- 0116
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