How the implied constitutional freedom of communication on government and political matter may require the development of the principles of open justice

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Judicial Conference of Australia Colloquium 2007 – Sydney

Sunday 7 October 2007

Steven Rares*

It is just over 10 years since former New Zealand Prime Minister David Lange made his most significant contribution to Australian law – allowing the High Court of Australia to expound that the Constitution contained an implication of freedom of communication on government and political matters. This enables the people to exercise free and informed choice as electors (Lange v Australian Broadcasting Corporation1). But, does it affect the principles, or operation, of open justice? What can the public, and in particular, the media now see of any documentary material used in court? With more and more written and electronic material being used in court proceedings, what rights do persons who are not parties to the case being heard have to access this material?

  1. Today I want to discuss two concepts which are fundamental to the way we are governed. The first is the principle of open justice. That principle requires that justice should be administered in public, transparently and openly, and that every member of society has the right not only to see what takes place in open court but to make fair and accurate reports of it, to discuss it and to comment on it.

  2. The second principle has been the subject of more recent exposition but is rooted in similarly fundamental values. It is the freedom from legislative or executive control of citizens’ rights to discuss matters concerning government and politics. In 1997 the High Court of Australia identified this as an implication in the Constitution of the Commonwealth which constrained the making of laws or the use of executive power to inhibit citizens from being able to participate in the parliamentary democracy and mechanism for changing the Constitution by referendum for which the Constitution itself provided. If there are to be elections or referenda, the electors must be able to discuss freely matters of government and politics which fall within the spectrum of issues about which they may wish to cast their vote.

  3. Courts, too, are institutions of government in a democratic society. Each of the three arms of government, the Parliament, the executive and the judiciary, has a role in making and changing the laws under which citizens live. The Constitution defuses the power of each arm of government by distributing various responsibilities and functions among them.

  4. The Parliament is given the power to enact legislation which, subject to its constitutional competence, determines public and private legal rights, obligations, duties and discretions.

  5. The executive has the traditional function of enforcing the law although it can exercise powers delegated to it by the legislature to make regulations within limits. Moreover, the executive carries out tasks confided to it by laws made by the Parliament. These include the exercise of powers that affect citizens and non-citizens in their ordinary lives and activities such as the granting of licenses, permissions, concessions, pensions, the collection of revenues and the prosecution and confinement of offenders.

  6. The judicial branch has the function of declaring the law and applying it to the facts of particular cases. In a constitutional democracy such as ours, it is the role of the courts to determine whether, ultimately, the Parliament or the executive have acted within the constitutional bounds of their powers. But judicial decisions can have political consequences. One only has to remember the controversy that emerged from the decision of the High Court in Mabo v State of Queensland (No 2)2 to appreciate that by declaring the law judicial decisions can have profound political impacts. Political and governmental reactions follow from decisions of the courts. Talk back radio and the tabloid press comment daily on the adequacy, or more usually the perceived inadequacy, of sentences imposed by magistrates and judges. Frequently, they assert the need for ‘… the government to do something about it’.

  7. Members of the community are entitled to agitate to change the law declared by the courts through the legal means afforded them by the Constitution. They may do this not only by discussing matters of government and politics and seeking to influence elections or politicians, but also by promoting a referendum to vest in or remove from the Parliament of the Commonwealth some legislative power under the mechanism in s 128 of the Constitution. Part of the debate on such a question may involve discussion about the judicial reasoning process which led to various judges determining the law which is sought to be changed, modified or addressed by a referendum. There is an open question whether discussion about the judicial reasoning process itself is protected by the implied constitutional freedom, as the diversity of views expressed by McHugh and Kirby JJ in APLA Ltd v Legal Services Commissioner (NSW)3 shows4.

  8. This suggests a capacity for interaction to occur between the rights of the public afforded under the principle of open justice and the implied constitutional freedom of communication on government and political matter. And it raises an important question as to whether each of those legal concepts affects the ability of third parties, including the media, to have access at any particular time to the material before the Court on which it is acting or asked to act. It is to those matters that I wish now to turn.

The principle of open justice

  1. A classic statement which goes to the heart of one aspect of the principle of open justice5, is the aphorism of Lord Hewart CJ in R v Sussex Justices; Ex parte McCarthy6:

It is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done.’

  1. A second fundamental aspect of the principle lies in its recognition that everyone is entitled to access to the Courts. This is achieved in two ways. First, members of the public are entitled to be present in court, not by leave or licence, but as of right. As long ago as 1829, in Daubney v Cooper7 the Court of King’s Bench held that:

‘… it is one of the essential qualities of a court of justice that its proceedings should be public, and that all parties who may be desirous of hearing what is going on … have a right to be present for the purpose of hearing what is going on.’

  1. Secondly, there is a right to publish a fair and accurate report of court proceedings which is of fundamental importance8. McHugh JA described the importance which the common law has attached to a fair and accurate report of court proceedings as being illustrated by the rule that its publication is not a contempt of court even though it is likely to prejudice the fair trial of pending proceedings9. McHugh JA said:

It is also illustrated by the rule that a fair and accurate report of court proceedings made in good faith is not an actionable defamation. Without the publication of the reports of court proceedings, the public would be ignorant of the workings of the courts whose proceedings would inevitably become the subject of the rumours, misunderstandings, exaggerations and falsehoods which are so often associated with secret decision making. The publication of fair and accurate reports of court proceedings is therefore vital to the proper working of an open and democratic society and to the maintenance of public confidence in the administration of justice. It is a right which can only be taken away by words of plain intendment.’ 10

  1. These values are by no means unique to Australian or English common law. A striking early formulation came when Mirabeau rose before the French National Constituent Assembly in the early 1790s and declared:

Donnez-moi le juge que vous voudrez, partial, corrupt, mon ennemi même, si vous voulez: peu m’importe pourvu qu’il ne puisse rien faire qu’à la face du public.’11

  1. As Lord Shaw of Dumfermline remarked in Scott v Scott12 the principle had moved Jeremy Bentham to say:

Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial.’13

  1. In applying Scott14, the High Court soon after said that the admission of the public to attend proceedings is ‘… one of the normal attributes of a court15.

  2. Nonetheless, the principle of open justice is not absolute. It is subject to the fundamental principle that the chief object of every court of justice must be to secure that justice is done. Thus, as Viscount Haldane LC remarked in Scott16, there are three recognised categories of exceptions to the open administration of justice. The first concerns proceedings involving wards of the Court or children. The second concerns persons who are incapable of conducting their own affairs, quaintly referred to in 1913 as ‘lunatics’. In each of those two classes of cases his Lordship explained that the Court was really sitting primarily to guard the interests of the ward or mentally incapable person. Thus its jurisdiction in that respect was paternal and administrative, and the disposal of controversial questions was an incident only in the exercise of the jurisdiction. In order to achieve the proper care of the child or mentally incapable person, it may often be necessary to exclude the public so that the Court can attain its primary object of achieving justice. Viscount Haldane LC explained that the broad principle of open justice then yields to the paramount duty which is the care of the ward or the mentally disabled person. The third class of exception involves commercial secrets, secret processes, confidential information and the like where the open administration of justice in respect of the secret would destroy its subject matter.

  3. Ultimately, the exceptions may be seen to resolve into the principle that the Court will sit in public unless it is necessary, in the interests of justice, not to do so. Necessity, not preference, is the metwand by which the Court is guided to move from the rigour of always sitting in public17.

  4. Every court has an implied jurisdiction to exercise powers which are necessary to ensure that justice is done in the case before it. The superior courts of record, in addition, have inherent jurisdiction, a more elusive concept, as Dawson J outlined in Grassby v The Queen18, to prevent abuse of their processes and to punish for contempt. Moreover, the inherent jurisdiction of a superior court of unlimited jurisdiction entails a general responsibility for the administration of justice. Under the Constitution, the division of powers, including judicial power, between the Commonwealth and the States may affect the ambit of the inherent jurisdiction of superior courts of record of their different polities, but that is a topic for another day.

  5. The implied or inherent power of a court to do justice in the proceedings before it authorises it to make such orders as are necessary in the interests of justice to protect the integrity of these proceedings. Thus, the Courts possess the power to make orders in the proceedings by prohibiting disclosure of matter or excluding the public so that the overriding purpose of the proceedings, namely to do justice between the parties according to law, may be achieved19. Examples of this are the power to exclude the public, to use a pseudonym20 or to limit the disclosure of evidence or matter in order to protect:

    • a person’s identity (such as an informer21);

    • a victim of an alleged or attempted blackmail from identification22;

    • trade secrets;

    • confidential information;

    • matters attracting public interest immunity23.

  6. If such things were revealed in court, it could have the effect of entirely deterring a person seeking to exercise his, her or its legal rights. Legislatures also create express power in courts to limit publicity for more abundant caution24.

The implied constitutional freedom

  1. An implication is a curious thing. It is an expression or meaning conveyed by, or inherent within, words spoken or used in a document. But it involves a different concept, idea or matter. The statement or document necessarily conveys, at the same time and by the same medium, something which has not been explicitly stated. Politicians have a gift for creating implications of all sorts, particularly in the language they use in legislation. An implication is not, however, connoted by Sir Winston Churchill’s prognostication of the likely action of Russia in October 1939 as being:

‘… a riddle wrapped in a mystery inside an enigma …’

  1. Our country’s founding fathers were wise enough to create a constitution in which implications abound. As Dixon J said in Australian Communist Party v The Commonwealth25, the Constitution:

‘… is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption.

  1. That assumption profoundly affects the way in which the Australian nation is governed. Even though New Zealand has not yet taken up the opportunity afforded by s 6 of the Commonwealth of Australia Constitution Act 1900 (Imp)26, to be admitted as part of the Commonwealth of Australia, its former Prime Minister, the Rt Hon David Lange was instrumental in exposing an implication in the Constitution of the Commonwealth. The High Court noted that discussion of matters concerning New Zealand may often throw light on government or political matters in Australia27. This was because of matters such as geography, history and the constitutional and trading arrangements between our nations. It is unlikely that their Honours had in mind what Mr Lange said in his valedictory speech in 1996 to the Parliament of New Zealand:

I want to thank those people whose lives were wrecked by us. They had been taught for years they had the right to an endless treadmill of prosperity and assurance, and we did them. People over 60 hate me.’28

  1. He noted that his mother had attacked him publicly on a surcharge his government had imposed, saying ‘She was Australian.

  2. The subject matter of the defamation on which he sued is not revealed by the report of Lange v Australian Broadcasting Corporation29. Mr Lange had commenced the proceedings in 1989, while Prime Minister. He alleged that the ABC had broadcast a ‘Four Corners’ program which conveyed a number of defamatory imputations including that he was guilty of abuse of public office and he was unfit to hold public office. The defendant broadcaster sought to plead a defence of qualified privilege arising pursuant to a freedom guaranteed by the Constitution.

  3. The High Court held that freedom of communication on matters of government and politics was an indispensable incident of the 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, respectively30. So, when a law of a State or federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution, the Court said that two questions had to be answered before the validity of the law could be determined. Those questions were:

1. Does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect?

2. If the law effectively burdens that freedom, is it reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people?31

  1. If the first question were answered ‘Yes’ and the second ‘No’, the law is invalid32.

  2. In Lange33, Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ characterised the implication as being negative in nature: it invalidates laws and, consequently, creates an area of immunity from legal control, particularly from legislative control, but the implied freedom confers no rights on individuals.

  3. The second question involves the formation of a value judgment, rather than a determination that the law is either essential or unavoidable. There is little difference between the concept of ‘reasonably appropriate and adapted’ and the notion of ‘proportionality34.

Are courts, judges or judgments within the implied constitutional freedom?

  1. An underlying rationale in Lange35 is that the electors must have the ability to acquire relevant information in order to cast a fully informed vote in an election for members of the Parliament. Accordingly, the ability to cast such a fully informed vote depends upon the freedom of communication which Lange36 identified as an indispensable incident of the representative government mandated by the Constitution37. Gummow, Kirby and Crennan JJ pointed out in Roach38 that a law will be invalid which proscribes communication under the guise of characterising it as ‘abusive’ or ‘insulting’ or ‘offensive’ if the words used are not so hurtful that they may be regarded as intended, or to be reasonably likely, to provoke unlawful physical retaliation. Gummow, Kirby and Crennan JJ explained the decision in Coleman v Power39, saying40:

Were that not so, and were a broader meaning given to the area of proscribed communication then the end served by the statute would necessarily be the maintenance of civility of discourse; given the established use of insult and invective in political discourse, that end could not satisfy the second question or test in Lange41.’

  1. Another effect of the constitutional implication is that the common law must conform with it. As the Court said in Lange42:

The development of the common law in Australia cannot run counter to constitutional imperatives43. The common law and the requirements of the Constitution cannot be at odds.’
So, the Court decided that the common law of qualified privilege in defamation proceedings should be developed consistently with the existence of the implied constitutional freedom to discuss government and political matters44.

  1. Gleeson CJ, Gummow, Hayne and Heydon JJ said in D’Orta-Ekanaike v Victoria Legal Aid 45:

The community has a vital interest in the final quelling of controversies which are brought to the judicial arm of government to resolve.’

  1. They said that the reference to the ‘judicial branch of government’ was more than a mere collocation of words designed to instil respect for the judiciary. They said it reflected a fundamental observation about the way in which our society was governed.

  2. The extent to which communication about the judicial branch is included within the umbrella of ‘government and political matter’ is a topic of on-going judicial consideration. Debate abounds46. Perhaps this is a consequence of the view taken by Gleeson CJ and Heydon J in APLA47 that the meaning of the expression ‘freedom of communication about government or political matters’ is ‘imprecise48.

  3. In APLA49 McHugh J said that there was a difference between a communication concerning legislative and executive acts or omissions involving the administration of justice on the one hand and, on the other hand, communications concerning that subject which did not involve, expressly or inferentially, acts or omissions of the legislature or executive government. Included in the topics which could attract the Lange freedom were discussion of appointment or removal of judges, the prosecution of offences, withdrawal of charges, the provision of legal aid and the funding of courts. McHugh J reasoned that that was because each of these concerned activities of the legislature or executive government. But, he said, communications concerning the results of cases or the reasoning or conduct of the judges who decide them, were not ordinarily within the Lange freedom. He recognised that this distinction ‘may sometimes appear to be artificial’ but said that it resulted from the necessity to promote and protect representative and responsible government. He continued50:

Courts and judges and the exercise of judicial power are not themselves subjects that are involved in representative or responsible government in the constitutional sense.’51

  1. So, in APLA, McHugh J held52 that the implied freedom does not extend to communication about the exercise of judicial power by courts. He said:

‘Lange refers to “political or government matters”. But those words must be read in the context of the decision. That context leaves no doubt that the term “government” is used to describe acts and omissions of the kind that fall within Chs I, II and VIII of the Constitution. It refers to representative and responsible government. In a broad sense, “government” includes the actions of the judiciary as the third branch of government established by the Constitution. But the freedom of communication recognised by Lange does not include the exercise of the judicial power of the Commonwealth by courts invested with federal jurisdiction or, for that matter, the judicial power of the States. Nothing in Lange or the subsequent decision of this Court in Coleman v Power supports the proposition that the exercise of judicial power is within the freedom recognised by Lange.’ (Footnotes omitted.)

  1. On the other hand, Kirby J tellingly disagreed with McHugh J, saying53:

Communication about access to courts is communication about government and political matters. The courts are part of government. They resolve issues that are, in the broad sense, political, as this case clearly demonstrates.’

  1. In John Fairfax Publications Pty Limited v Attorney-General (NSW)54, Spigelman CJ described the task undertaken by the High Court in Lange as one of ‘explaining the elliptical and expounding the unexpressed’. In that case the Court of Appeal of the Supreme Court of New South Wales held that part of s 101A of the Supreme Court Act 1970 (NSW) was not a valid law. The section permitted the Attorney-General to refer questions of law arising out of the acquittal of a person on a charge of criminal contempt to the Court of Appeal. This procedure would not impugn the acquittal. It is similar to the well known power to refer to criminal appellate review questions of law arising out of acquittals55.

  2. In Fairfax56 the section required the proceedings to be heard in camera and prohibited publication of any submissions made on the reference and the identity of the alleged contemnor. Any contravention of those restrictions on publication was punishable as a contempt of the Supreme Court. Spigelman CJ, with whom Priestley JA agreed on this point, held that the requirement that the whole of the proceedings be in camera went well beyond what was necessary in order to achieve the objective of the legislation. They also held that the prohibition against publication of a report of any reference also went well beyond what was required in order to serve that objective57. But, they held that the legislation was valid in prohibiting publication disclosing the acquitted person’s identity.

  3. The majority held that the State Attorney-General had power under s 101A to make a reference in respect of contempt charges that arose in the exercise of federal jurisdiction by State courts. Thus, his or her role in making a reference was the same whether the charges arose under State or federal jurisdiction. Furthermore, Spigelman CJ pointed out that the policy of a State Attorney-General, manifest in contentions or submissions put to a court on his or her behalf, may be relevant to government or political decisions at a Commonwealth level. Questions could arise about whether the Commonwealth should exercise such powers as it may have to affect the operations of State courts in the exercise of federal jurisdiction, or indeed, whether it should confine or remove the conferral of such jurisdiction. The law of contempt, being part of the common law of Australia applicable to all courts, including Federal courts and State courts exercising federal jurisdiction, could also affect the exercise of rights protected by the implied constitutional freedom of communication on government and political matters. Spigelman CJ said that when a State Attorney-General institutes and prosecutes proceedings with respect to the law of contempt, he or she is exercising a function of government with respect to the law of contempt that could involve the protection of the process of the Court exercising federal jurisdiction58.

  4. The Chief Justice and Priestley JA rejected the contention that the requirement to sit in camera and the prohibition of publicity of the institution of the reference were reasonably appropriate and adapted to serve a legitimate objective, namely the protection from further adverse publicity of a person acquitted of a criminal charge59.

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