Implied Freedom Of Political Communication: Scope And Validity Under Australian Law

The Scope of Implied Freedom of Political Communication

Discuss about the Implied Freedom of Political Communication.

There is no guarantee under the Australian Law which expressly provides with freedom of speech(Coleman v Power, 2004), there has been acknowledgment of this by the High Court under various decisions (Nationwide News Pty Ltd v Wills, 1992) (Australian Capital Television Pty Ltd v Commonwealth, 1992) (Theophanous v Herald & Weekly Times Ltd, 1994) that with respect to government and political matters there exists under the Constitution an implied freedom of communication(Stone, 1999). However, there has been much debate with respect to the this freedom’s scope and the test which is to be made applicable for the determination of the law’s validity which restricts it (Coleman v Power, 2004). In the case of Mulloholland v. Australian Electoral Commission (Mulloholland v. Australian Electoral Commission, 2004), Coleman v. Power (Coleman v Power, 2004) the decision of the High Court has been in particular with respect to the principle which had been set in the case of Lange v Australian Broadcasting Corporation (Lange v Australian Broadcasting Corporation, 1997).

The powers of the legislature and executive are restricted by the implied freedom, and it is not a grant of the personal right to the individuals (Walker, 1997). There is the inclusion of not just speech but also any communication which is non-verbal with respect to government and political matters (Levy v Victoria, 1997), and it is not just to election periods that its application is confined to (Lange v Australian Broadcasting Corporation, 1997). It was found originally by the court that it was from the notion of democracy that was representative that the implied freedom was derived from (Blackshield & Williams, 2002). However, the Court in Lange stated that it was the Constitution’s structure and text by which the implications had arisen (Lange v Australian Broadcasting Corporation, 1997). It was opined by the High Court that there was an established system of responsible and representative government under the Constitution, particularly in the sections 7, 24, 64 and 128 and that the freedom of discussing any matters which was governmental and political was indispensable for these government’s systems (Lange v Australian Broadcasting Corporation, 1997). It is not necessary that the law is invalid only because of the fact that it is infringing upon the freedom (Lange v Australian Broadcasting Corporation, 1997) (Lange v Australian Broadcasting Corporation, 1997). The Court in Lange had delivered a decision which was unanimous; wherein there was an outlining of a test for the determination of a law’s validity. The Constitution’s sections 24 and 7 had been emphasized by the Justices – and this was further reinforced by various other sections is concerned mainly with the notion of a government that is responsible and Constitution’s amendment works in a manner as being the restriction of the powers of the legislature. It was further noted by the High Court that there would not be any law which is invalidated by the freedom which is enacted and was satisfying a different legitimate goal.  The first test was whether there was a burden which had been placed effectively by the law on the freedom of communication with respect to political and government matter either in its operation, terms or effect? The second test being that if there was an effective burden which was being placed by law, is it a adapted and reasonably appropriate law which will aid in achieving the legitimate goal, the accomplishment of which is compatible with the constitutionally prescribed system’s of responsible and representative government’s maintenance and the procedures which have been prescribed under the section 128 for submission of a amendment which has been proposed in the Constitution to the people’s informed decision (Lange v Australian Broadcasting Corporation, 1997). It is only if in the first limb the answer is yes and the answer in the second limb is no, that the law is valid under this test (Walker, 1997). Therefore there is no absolute implied freedom, but there are limitations to which it is subjective of what for the system’s effective operation of the system of responsible and representative government provided under the constitution is essential (Lange v Australian Broadcasting Corporation, 1997).

Validity of Laws that Restrict Implied Freedom

It was in the case of Nationwide News Pty. Ltd. v. Wills and Australian Capital Television Pty. Ltd. v. Common Wealth (“ACTV Case”) (Australian Capital Television Pty Ltd v Commonwealth, 1992) in the year 1992 where there was a significant dealing with the issue of freedom of speech. It was in the ACTV Case that there was a consideration of whether there existed a Constitutional right which was implied for free speech with respect to political and government affairs. It was held by the majority in High Court that there was indeed a freedom political communication which was implied under the Constitution, this decision was based on the representative nature of the democracy of Australia. Due to this decision of the High Court in the ACTV case, there was a limitation which was placed on the Commonwealth’s ability to legislate against the freedom which was implied with respect to the communication.

It was, however, in the case of Theophanous v Herald & Weekly Times (1994) 182 CLR 104 where there was a political communication’s implied freedom which actually made head’s turn, where there a constitutional defense which had been allowed by the High Court to put forth with respect to the defamation action.

It was stated in the Lange case by High Court that the freedom of communication protection which has been provided under the Constitution is not an absolute free, and that there is a limitation of it to what is important for the operation that is effective of that system of responsible and representative government which has been provided for under the Constitution.

At first, the connection that exists between the political communications’ implied freedom and the laws of the state are no obvious. As mentioned above the implied freedom derived from the Constitution of the Commonwealth was identified by the High Court first in the year 1992 (Australian Capital Television Pty Ltd v Commonwealth, 1992) on the basis that it was important for supporting the representative system of the government that had been established by the Constitution of the Commonwealth. This implication for a short period was based broadly upon the system’s requirement of a government that was representative in nature(Theophanous v Herald & Weekly Times Ltd, 1994), but the High Court in the years 1996-97 turned back from the said position, grounding firmly the implied freedom that had been mentioned  in the Common Wealth Constitution’s text (McGinty v Western Australia, 1996) and particularly in the Consitution’s section 7 and 24 which provided that the senators and members are required to be chosen by the people directly and the section 128 which provided that the constitutional amendment are required to be approved by the voters through the manner of a referendum prior to such amendment coming into force. It was opined by the High Court that the choice which the electors made in the referendums, as well as the elections of the Commonwealth, must be choices that are informed and free, this can only take place if there is freedom amongst the people to receive and make with respect to matters that are political in nature communications.

Relationship with State Laws

It was held by the High Court that in the Lange case that the section 24 and 7 and the sections which are related to the Constitution protect essentially the freedom to communicate with the people concerning government or political issues which will enable the people to exercise their informed and free choice as the electors of the Common wealth (Lange v Australian Broadcasting Corporation, 1997) during the referenda or elections.

Issues essential is that extent to which the implied freedom of political communication of the Commonwealth limits the power of the legislature of the state. There is the potential of limiting the freedom of political communication by the state law, such as that of defamation concerning the matters which are relevant to the elections of the Commonwealth. The extent, for example, to which there is limitation by the law of state the person’s capacity of criticizing the policies of the ministers of the Commonwealth or the integrity or capacities of the candidates standing for election or members of the parliament of the Commonwealth, there will be a potential breach of the freedom which has been implied (Theophanous v Herald & Weekly Times Ltd, 1994). It however, essential that it be kept in mind the basis of the constitution of which there is an effect on the state law. This, however, is not a case of inconsistency with the Commonwealth Law wherein under the section 109 where the state law is to be rendered as being inoperative to the extent to which it is inconsistent with the law of the Commonwealth. It is instead an inconsistency with the Constitution of the Commonwealth. It has been provided by the Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12 covering Clause 5 that the Constitution shall be binding on the judges, courts and every state’s people notwithstanding anything which is stated by any law of any of the States.

The most important attribute which can be gathered with the abovementioned discussion and the unanimous decision in the Lange case and the other related case is that there is certain amount of certainty which has been provided by the High Court with respect to the Freedom of communication political communication thus aiding in giving rise to a system of responsible and representative government.

References

Australian Capital Television Pty Ltd v Commonwealth, 177 CLR 106 (1992).

Blackshield, T. & Williams, G. (2002). Australian Constitutional Law & Theory (3rd ed.).

Coleman v Power, 209 ALR 182, 232 (Kirby J) (2004).

Gray, A. (2013). Government funding of non-governmental organisations and the implied freedom of political communication: The constitutionality of gag clauses. Australian Journal Of Political Science, 48(4), 456-469. https://dx.doi.org/10.1080/10361146.2013.846295

Lange v Australian Broadcasting Corporation, 145 ALR 96 (1997).

Levy v Victoria, 189 CLR 579, 594-5 (1997).

McGinty v Western Australia, 186 CLR 140 (1996).

Mulloholland v. Australian Electoral Commission, 209 ALR 582 (2004).

Nationwide News Pty Ltd v Wills, 177 CLR 1 (1992).

Stone, A. (1999). The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication. Melbourne University Law Review, 668.

Theophanous v Herald & Weekly Times Ltd, 182 CLR 104 (1994).

Walker, K. (1997). It’s a Miracle! High Court unanimity on free speech. Alternative Law Journal, 179, 180.