The freedom of political communication is often described as an ‘implied constitutional right’ or simply an ‘implied right’.1 The High Court, however, has been rather wary of that description, usually preferring to describe it as a ‘freedom’ or ‘guarantee’.2 The Court has been particularly adamant that the freedom is ‘not a personal right’3 and has drawn some important conclusions from this statement, including conclusions as to the relationship between the common law and the Constitution.
In this article, I consider why the Court is wary of the description ‘right’ and, in particular, why it insists that the doctrine does not confer ‘personal rights’. I argue that this statement can be understood in two ways. First, it means that the freedom exists to support a certain system of government4 rather than to protect values more closely associated with the individual, such as autonomy. Thus the freedom could be described as ‘institutional’5 (its rationale being protection of certain institutions of government) rather than ‘personal’. Secondly, in saying that the freedom is not a ‘personal’ right, the High Court also means that the freedom operates in only limited ways. First, it is a ‘negative’ right rather than a ‘positive’ right6, which means that it provides freedomfrom interference, rather than the right to engage in certain activities or to be provided with certain benefits. Further, it has a ‘vertical’ rather than ‘horizontal’ operation, which means that is concerned with relationships between the individual and the state rather than relationships between individuals.
I will argue, however, that these ideas have been misunderstood by the High Court and the Australian courts in general. First, I will address the conclusions that the courts have drawn from the institutional rationale for the freedom. In Part I, I will address the limits placed on the coverage7 of the freedom. Australian courts have drawn the category of ‘political communication’ very narrowly to cover only certain, very obviously political, kinds of communication.8 I will argue that, even taking into account the narrow concept of ‘representative and responsible government’ that the High Court has adopted,9 a much wider range of communication is relevant to the proper functioning of government at the federal level.
More fundamentally, in Part II, I will challenge the generally accepted view that the institutional rationale of the freedom of political communication precludes consideration of ‘personal’ values like autonomy, by reviewing arguments that respect for autonomy is a necessary part of democratic government. The doctrinal consequences of these arguments have yet squarely to confront the courts. However, as I will explain, the place of autonomy as a value relevant to the freedom of political communication is likely to make an important difference to judicial attitudes to matters such as campaign finance legislation.
In Part III, I will address the consequences of the idea that the freedom of political communication is a ‘negative’, ‘vertical’ right. I will show that the High Court’s misunderstanding of these concepts has led it to make one serious conceptual mistake. From these ideas, it draws the conclusion that the freedom is primarily addressed to legislative and executive action and thus, as a general matter, does not directly apply to the common law. I will argue that this conclusion is not supported by its premises and is ultimately contradicted by the Court’s simultaneous assertion that common law rules must conform to constitutional requirements.10 I will suggest that the High Court ought to acknowledge that, at least in cases like Lange v Australian Broadcasting Corporation,11 the common law is subject to constitutional requirements in much the same way as are laws made by the legislature and executive. I conclude by considering some possible consequences of, and objections to, my arguments.
An Institutional Right: Coverage
One way to categorize rights is to distinguish between rights that serve interests closely identified with the holder of the right, such as autonomy, ‘self-realization’,12 human dignity or the well-being of individuals (which could be described as ‘personal’ rights) and ‘rights’ that serve larger interests.13 This distinction provides one explanation for the statement that the freedom of political communication is not a ‘personal right’. By its very nature the freedom of political communication falls squarely into the latter category. It is directed toward protecting a larger interest,14 the protection of representative and responsible government or, as the Court has insisted, particular institutions of that form of government identifiable in the text of the Constitution.15 Thus the freedom protects communication that enables that voters in federal elections (and constitutional referenda) to exercise a ‘true choice with ‘an opportunity to gain an appreciation of the alternatives’’ 16 and that ensures that the federal Executive can be held responsible to the federal Parliament.17
The freedom of political communication thus relies upon a very specific justification that is institutional rather than personal. This feature of the doctrine seems to have brought the Australian courts to the conclusion that the category of political communication is very narrow. As the law currently stands, ‘political communication’ apparently includes only discussion of laws and policy of the federal Parliament, the conduct of members of Parliament,18 and the political affairs of a state that are very closely connected to federal affairs.19 However, as I will now show, that conclusion is not compatible with the freedom’s basic justification.
Coverage – The Category of Political Communication
1. Current Boundaries
In the early cases, the coverage of the freedom of political communication was often described in rather vague terms as ‘government and political matters’ or some similar concept20 or described broadly.21 Since Lange there has not been an authoritative High Court statement on the issue and most lower court decisions have avoided the question of coverage by finding that the legislation in question is valid as ‘reasonably appropriate’ regulation.22 However, the principal thrust of Lange was to confine the freedom by reference to constitutional text23 and, in keeping with that conservative approach, there is a discernable trend toward narrowing the coverage of the freedom. I will give four examples:
In Levyv Victoria,24 decided shortly after Lange, the two High Court Justices who addressed the issue found that protest against a state law limiting duck hunting had no significance for representative and responsible government by the federal Parliament.25 This finding departed from an earlier majority position that the freedom would generally cover discussion of state political matters.26
In Brown v Classification Review Board,27 a majority of a full court of the Federal Court found that a censored student newspaper article advocating shop-lifting and containing a critique of capitalism28 would not bear on the kind of choice a reader would make at a federal election and therefore contained no relevantly political message.29
In John Fairfax Publications Pty Limited v Attorney-General (NSW),30 the New South Wales Court of Appeal considered legislation requiring certain appeals to be held ‘in camera’. The majority ultimately concluded that the role of the Attorney-General in initiating appeals brought the legislation within the scope of the freedom31 and, in this respect, the case is a rare exception to the narrowing trend.32 However, in other respects the majority judgment exhibited the tendency to define political communication narrowly. In the course of its reasoning, the majority stated that ‘[t]he conduct of courts is not, of itself, a manifestation of any of the provisions relating to representative government upon which the freedom is based.’33 It therefore rejected the argument that the discussion of the conduct of courts is, as a general matter, covered by the freedom.
Finally, in Australian Broadcasting Corporation v Hanson,34 the Queensland Court of Appeal upheld the grant of an injunction to prevent the broadcast of a song satirising Pauline Hanson, a controversial federal politician, on the basis that the song contained no communication relevant to the freedom of political communication. The Court refused to recognise the existence of a political communication issue on the grounds that the song was ‘grossly offensive’ and ‘part of a fairly mindless effort at cheap denigration’.35
It may be possible to defend the results in each of these cases.36 There were countervailing interests to be weighed against the freedom of political communication37 that could perhaps have justified the regulation of the speech under the second limb of the Lange test.38 Indeed, in Levy, where only two judges addressed the question of coverage, this was the principal basis of the decision.39
However, the conclusion that the communication at issue in each of these cases had no political content40 is very weak. In each of these cases, the communication in question bears some relation to a central concern of the freedom of political communication, namely the casting of a free vote for federal parliamentary representatives.41
In Levy, a part of the protesters’ concern was the environmental damage caused by the destruction of endangered species.42 The Federal Parliament has considerable power to regulate environmental matters through, among other powers, the external affairs power,43 the trade and commerce power44 and the power to make conditional grants to state governments.45 So, by raising awareness of the destruction of endangered species, the protesters could affect the attitudes of voters toward matters over which the federal Government has influence and thus their votes in federal elections.46
Indeed, confining the freedom to matters relevant to federal politics is not a very significant limitation. The federal Parliament can use its powers in pursuit of an almost unlimited range of policies47 and, given the financial dominance of the Commonwealth, it is difficult to imagine any matter on which the Commonwealth could not seek to assert itself, even if only through a ‘tied’ (i.e., conditional) grant to a state pursuant to section 96.48 Discussion of the political affairs of a state will, therefore, usually have some relevance to federal politics even if it is only because of the possibility of some form of federal intervention.
In Brown, the second case discussed above, the message was a radical challenge to ‘capitalism’, a vision of social order of importance in a western industrialized nation like Australia. Although there is no discussion of any particular law or policy proposal, this kind of a challenge does invite voters to re-think the overall direction of government and thus could conceivably affect their federal electoral choices.49
In Fairfax the majority concluded that the general discussion of conduct of courts is not covered by the freedom.50 In so far as the statement applies to federal courts, it is easy to dispute. Federal courts are established under federal legislation, much of their administration is determined by federal legislation and regulation, and judges are appointed the federal Executive. To that extent, then, the conduct of the federal courts reflects the state of federal law and federal executive policy.
Further, there is another link between federal courts and federal government policy that is shared with the state courts. Both federal and state courts administer federal statutes, and thus the conduct of courts reveals the implications of a government’s enactment of legislation or support for existing legislation. For example, the federal law limiting the power of the Federal Court to review decisions of the Refugee Review Tribunal reflects federal policy on refugee issues.51 A full understanding of the effect of that policy can only be understood through a through an examination of the conduct of the judicial review process. Where state courts interpret state statutes they are similarly involved in the administration of federal policy, the discussion of which is relevant to a full understanding of the conduct of the federal Government.52 Even the common law role of the courts is relevant to government policy at least in areas over which the Commonwealth has some power. Without an understanding of how the common law operates, it would be hard to formulate views about where the Parliament should intervene.
The reasons for the dismissal of the Hanson case are similarly unconvincing. Ms Hanson’s political opponents accuse her of racism and her views on indigenous affairs (perhaps especially native title) and Asian immigration are among her most controversial. Although the banned song contains only sparse commentary on her political platform, it does contain some strongly critical statements – perhaps most pertinently, ‘I’m a back door man for the Ku Klux Klan with very horrendous plans’53- that were clearly inspired by and meant to inspire others to hostility towards her and her politics. The relevance of this kind of comment on a Member of Parliament to the federal electoral process need hardly be explained. The Queensland Court’s reservations really relate to the insulting and offensive tone of the communication and, although this fact might make regulation of it easier to justify, it does not eradicate the political significance of the message.54 The offensive nature of the portrayal of Hanson could be seen as part of its political nature, adding strength through its capacity to shock and perhaps amuse.55
3. New Categories of Political Communication?
The concept of political communication therefore needs a new and more generous definition. The redrawing of the boundaries should be guided by the underlying logic of the freedom of political communication, by consideration of what kind of communication must be protected in order for the institutions protected by the freedom to function properly. Considered in this light, there are at least four categories of communication that could be included in the concept of ‘political’ communication.56 Each of these categories would extend the concept further than it is currently drawn and, in some cases, would expand the concept dramatically.
(a) Explicitly Political Communication
The first category can be termed ‘explicitly political’ communication. Robert Bork developed this category in his attempt to confine the coverage of freedom of speech under the First Amendment:
The category of protected speech should consist of speech concerned with governmental behavior, policy or personnel, whether the governmental unit involved is executive, legislative, judicial or administrative. Explicitly political speech is speech about how we are governed, and the category therefore includes a wide range of evaluation, criticism, electioneering and propaganda.57 What distinguishes this kind of speech is that it is substantively about government. This is a good starting point for the Australian freedom, because these matters are obviously relevant to a voter’s choice in federal elections and the other institutions protected by the freedom. Of course, given that the freedom only protects certain federal institutions of representative and responsible government, Bork’s category would have to be modified to cover only communications about the behaviour, policy and personnel of the federal Parliament and federal Executive or about the referendum procedure. Most obviously, this category would cover discussion of current federal laws, proposed referenda, policy of government and opposition parties, the business of the federal Parliament and the public conduct of members of Parliament.
The adoption of this category would extend the coverage of the freedom at least to the discussion of the political beliefs of a Member of Parliament, raised by the Hanson case. The category ought also to extend to some discussion of the conduct of courts, the issue concerned in Fairfax. For the reasons I have explained, although courts are not themselves institutions protected by the freedom of political communication, sometimes discussion of courts closely reflects the policy of the federal Government and the state of its laws.58 At the very least, then, discussion of the operation of the federal courts, the appointment of federal judges and the interpretation of federal statutes (by state or federal courts) amounts to discussion of the behaviour of the federal Government.
(b) Potential Subjects of Government Action
The first category might be taken to exclude matters that are not the subject of an existing law or of the current attention in the federal Parliament but which might become the subject of a law or policy in the future. On this view, the freedom would not cover discussion of issues like changing the Australian flag, reintroducing national service, abolishing the states or reintroducing the death penalty.59
In my view the distinction between these two categories is rather difficult to draw because the fact that some issue is not currently the subject of some action might indicate satisfaction with the status quo60 or represent a failure to appreciate the need for governmental action. Either way, the failure to make a policy proposal or to take action will often reveal the nature of governmental behaviour just as much as if a government has acted or some party or person in the Parliament has proposed to act. In any event, the discussion of issues before they reach the political agenda has intrinsic value. A voter’s understanding of many issues, especially the most complex ones, is likely to be developed over time and cannot realistically be left to the point at which the judgment of voters is to be exercised.
Therefore, to make the matter perfectly clear I suggest that we should recognise that the freedom of political communication covers a second category of communication: communication about issues that could become matters of federal law or policy or in some way the subject of federal governmental action. Although this extension simply anticipates a change in the political agenda, it will broaden the category of political communication greatly. The federal Parliament considers a wide array of issues, and the breadth of federal government involvement in modern life means that, subject to some common-sense limitations,61 it is almost impossible to be sure that any matter will not become the subject of federal political debate.62 Who would have predicted, before the tragic shootings at Port Arthur in April 1996, that gun control would become a federal issue? Or that sexual privacy would become a federal issue as it did following the successful appeal to the United Nations Human Rights Committee.63
To return to the examples discussed above, this second category would allow the coverage of the matters at issue in Levy. The point in Levy is that the criticism of the state law is a matter on which the Federal Parliament could choose to respond,64 thus making the matter one relevant to federal government policy. Second, to return to the issue raised by Fairfax, this category would also extend coverage to some discussion of state courts not included in category one. In areas of concurrent state and federal power, the federal Parliament will have the power to intervene to override interpretations of the common law by state courts, or to render state laws invalid. The conduct of state courts in these areas is a matter over which the Commonwealth could act and therefore, on the analysis just advanced, discussion of this conduct comes within the freedom of political communication.
(c) Communication that Influences Attitudes towards Public Issues
The third category of political communication suggested by the basic logic of the freedom of political communication would include discussion of matters that are not themselves likely to be the subject of law or government action, but might nonetheless influence the attitudes of voters toward the government. Of the cases discussed above, this category would expand the coverage of the freedom to matters at issue in Brown (political theory touched on in the censored article) and, more generally, will greatly expand the category of political communication. Consider just the issues underlying two recent controversies: the Prime Minister Howard’s refusal to issue a formal national apology to the ‘Stolen Generation’65 and the federal Government’s proposal to amend the Sex Discrimination Act 1984 (Cth) to allow states to deny single and lesbian women access to state funded invitro-fertilisation (IVF) services.66 Debate over the Stolen Generation has touched on questions of historical fact (the numbers of children removed under the policy, the nature of their removal and their subsequent treatment),67 competing interpretations of Australian history68 and questions of collective and individual responsibility.69 At the heart of the IVF debate are questions of appropriate parenting,70 the ‘rights’ of adults to be parents and of children to have parents of a certain kind,71 the use of reproductive technologies generally72 and, on some views, of federalism.73 In these debates, questions of religion, moral philosophy, history, medical science and sociology all arise. Voters’ understanding of and attitudes to these matters can affect their attitudes on questions of public policy, their attitudes to the Howard government, and ultimately their vote at a federal election.
(d) Communication that Develops Qualities Desirable in a Voter
Finally, and most broadly, it is possible to argue that communications that develop the capacities or qualities necessary to make a ‘true choice’ in a federal election are included within the ‘political communication’ category. The potential for this category to expand the coverage of the freedom of political communication is particularly dramatic. Alexander Meiklejohn, the foremost exponent of self-government arguments for the First Amendment, included education, science, philosophy, art and literature within the category of political communication.74
Some of these matters (philosophy and science most clearly) would be included in category three above. However, the fourth category covers some communication not included in the third. It includes communication that is relevant to democratic government because of the qualities it develops in the citizenry. Meiklejohn argued for the coverage of matters that help the voter ‘acquire the intelligence, integrity, sensitivity, and generous devotion to the general welfare that, in theory, casting a ballot is assumed to express.’75 In short, he argued, ‘the people do need novels and dramas and paintings and poems, because they will be called upon to vote.’76
4. Defining Political Communication - Can the Concept Be Limited? The breadth of these categories suggests a difficulty that has attended other attempts to define the concept of ‘political communication’: if the concept is infinitely expandable it becomes meaningless.77 Partly because of this problem, many First Amendment scholars have criticized attempts to justify freedom of speech solely by the argument from democratic government.78
The Australian High Court, however, cannot escape the task, because it developed the freedom of political communication to serve precisely that purpose. For those wanting to limit the concept, Bork’s argument that political speech should only include ‘explicitly political’ speech will probably seem very attractive. Although it is not a very influential First Amendment theory,79 it looks like a more promising theory of the freedom of political communication, given the limited nature of the Australian doctrine.
The principal virtue of Bork’s argument is that it does draw a line, thus ending what he calls the ‘analogical stampede’ that threatens the viability of the concept.80 He acknowledges that, wherever the line is drawn, there will be hard cases, but argues:
Any theory of the first amendment that does not accord absolute protection for all verbal expression, which is to say any theory worth discussing, will require that a spectrum be cut and the location of the cut will always be, arguably, arbitrary. The question is whether the general location of the cut is justified.81
There is much to be said for drawing the line somewhere. At their extreme, arguments about what is necessary to protect democratic government (or even just free voting in federal elections) can be quite implausible. Bork makes the point:
I agree that there is an analogy between criticism of official behavior and the publication of a novel like Ulysses, for the latter may form attitudes that ultimately affect politics. But it is an analogy, not an identity. Other human activities and experiences also form personality, teach and create attitudes just as much as does the novel, but no one would on that count, I take it, suggest that the first amendment strikes down regulations of economic activity, control of entry into a trade, laws about sexual behavior, marriage and the like.82
In the context of the freedom of political communication the need to draw a line seems at least as pressing. The concept of what protects responsible and representative government is open to very broad interpretation. Further, because there is no text that mentions ‘speech’ or ‘communication’ it would be especially easy to argue for the coverage of non-communicative activity.
Nonetheless, there is some question as to whether Bork draws the line in even approximately the right place. There are doubts voiced in the United States as to whether focusing on government behaviour neglects the role that private bodies play in public affairs.83 A further concern is that, even supposing Bork has correctly identified the speech that should count as ‘political’, the line should be drawn more generously to allow for the possibility of error,84 especially given difficulties that courts might experience in distinguishing between political and non-political speech.85
Further, in the Australian context at least, there are good reasons to include communications in categories two and three in the concept of political communication. First, in these cases the analogy to explicitly political communication is relatively strong. With these communications, it is the substance of communication that helps voters assess a government and determine their vote. By contrast, communications in category four relate to the vote more indirectly. They contribute to the development of certain qualities like open mindedness, tolerance and capacity for critical thinking and these qualities in turn affect the voter’s response to more overtly political communication.86
Further, it is not even obvious that explicitly political communications ought to be the touchstone against which all other communication is assessed. Under the freedom of political communication the overriding concept is what enables electors to make a ‘true’ electoral choice.87 Taking explicitly political communication as the starting point seems to assume that it is the most important communication for ensuring free voting in a federal election. However, other kinds of communication might be at least as important as explicitly political speech, or even more so. For example, people may form their political opinions by discussion of matters not on the political agenda, including matters like religion and philosophy that develop more fundamental commitments. Again, this point counsels the inclusion of categories two and three in the concept of ‘political communication’.
Thus, if we take the logic of the freedom of political communication seriously, the concept of political communication is very broad. It may be possible to place some limits on it, such as the exclusion of communications whose only relevance lies their capacity to develop qualities in the citizenry that assist in the exercise of the vote.88 However, the concept of 'political communication covers a far broader range of communication than the Australian courts currently recognise. Indeed, in this respect the courts would do well to return to the pre-Lange position. In Theophanous v Herald & Weekly Times Chief Justice Mason and Justices Toohey and Gaudron recognized that ‘what is ordinarily private speech may develop into speech on a matter of public concern with a change in content, emphasis or context’89 and stated:
‘[P]olitical discussion’ includes discussion of the conduct policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office [and] … refers to all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about.’’90
Most importantly for this argument, stating that the freedom of political communication is not a ‘personal’ right provides few obvious limitations. Despite its apparently political or ‘institutional’ nature, much apparently non-political communication is relevant to that rationale for the freedom.91