Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication Adrienne Stone

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The theoretical confusion that this argument has revealed is rather disappointing. The confusion is perhaps the inevitable result of the compromise struck in Lange, where the freedom was retained, despite waning judicial support, but in an apparently confined form.219 I have argued elsewhere that the revised doctrine shows a misplaced confidence in the constraining power of ‘constitutional text and structure’.220 In this article, I address the consequences that might be thought to follow from the statement that the freedom of political communication is not a personal right: that it covers only communication that is explicitly about federal politics, that it serves only ‘institutional’ values, and that it limits only federal legislative and executive power. I have challenged all three conclusions. I have argued that, even accepting that the freedom is not a personal right, it covers a wide range of communication and may (depending on how the High Court develops its understanding of representative government) require some protection of the ‘personal’ value of autonomy. Further, it should be understood to have direct application to the common law. These findings are potentially very significant for the future development of the freedom of political communication. Although the courts are currently interpreting the freedom very narrowly, it would be consistent with basic principles for it to confer rather extensive protection of freedom of speech.

*This article was published in the Melbourne University Law Review, Volume 25, Number 2, 2001
Faculty of Law, Australian National University. This article forms part of the author’s JSD dissertation at Columbia University School of Law. Thanks are due to Kent Greenawalt, Vincent Blasi and Michael Dorf for their supervision of my doctoral work and to Graeme Hill for insightful reviews of several earlier drafts.

1 See Australian Capital Television v Commonwealth (1992) 177 CLR 104, 135 (Mason CJ), referring to the ‘[i]mplication of fundamental rights’; 227 (McHugh J): ‘ [T]he people of Australia have constitutional rights of participation, association and communication in relation to federal elections.’ See also, Geoffrey Kennett, ‘Individual Rights, the High Court and the Constitution’ (1994) 19 Melbourne University Law Review 581, 596, 604-09; George Williams, Human Rights under the Australian Constitution (1999) 62, George Winterton et al, Australian Federal Constitutional Law (1999) 606, Leslie Zines, The High Court and the Constitution (4th ed 1999) 389.

2 See for example, Australian Capital Television (1992) 177 CLR 104, 140 (Mason CJ), 149 (Brennan J), 168 (Deane and Toohey JJ); 208 (Gaudron J); 227 (McHugh J).

3 See Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 560. See also below n 142 and accompanying text.

4 The freedom of political communication is a structural implication drawn from the existence of certain institutions of representative and responsible government found in the text. See Australian Capital Television (1992) 177 CLR 104; Lange (1997) 189 CLR 520. That is, the representative and responsible government set up by the Australian Constitution is said to imply the freedom of political communication necessary to sustain it. The argument that gives rise to the freedom of political communication is similar to that proposed by Professor Charles Black in Structure and Relationship in Constitutional Law (1969). Professor Black suggested that much of the protection of freedom of speech, assembly and petition currently granted under the First Amendment, could be implied, even in the absence of constitutional text, as necessary to ensure the proper workings of the national government. Black, ibid, 40-48.

5 See Williams, above n 1, 168: ‘By comparison [with freedom of speech under the First Amendment and the Canadian Charter of Rights and Freedoms] the freedom of political communication implied from the Australian Constitution is far more limited in its scope. It has an institutional rather than an individual foundation in that it is designed to facilitate the operation of representative government and not, except incidentally, to promote the general welfare of the individual.’

6 Civil and political rights such as those found in most Constitutions, are usually conceived as ‘negative’ rights - rights against certain kinds of interference (usually by government). See, for example, Bowers v De Vito, 686 F. 2d 616, 618 (1982) (Posner J.): ‘The Constitution is a charter of negative liberties; it tells the state to let people alone; it does not require the federal government or the state to provide services, even so elementary a service a maintaining law and order’. ‘Social and economic rights’ such as rights to education, health care, housing and social security are commonly advanced forms of positive rights. It may be preferable to use the distinction, drawn in international human rights law between ‘first generation’ rights (the traditional civil and political liberties) and ‘second generation’ rights (the social and economic claims). See Philip Alston, ‘A Third Generation of Solidarity Rights’ (1987) 29 Netherlands International Law Review 307, discussing ‘third generation’ rights, which seek to secure the welfare of communities or peoples rather than individuals.

7 By ‘coverage’ I mean the category of communications that are accorded some level of protection under the freedom. ‘Protection’, on the other hand, refers to the degree or extent to which such communications are immune from regulation. See generally, Frederick Schauer, Freedom of Speech: A Philosophical Enquiry (1981), 89-91. The distinction is reflected in the two stage test set out in Lange (1997) 189 CLR 520, 567: ‘When a law … is alleged to infringe [the freedom of political communication] two questions must be answered … First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to a legitimate end the fulfilment of which is compatible with the … system of government prescribed by the Constitution[?]’ [footnotes and internal quotation marks omitted].

8 See below Part I A.

9 Since Lange (1997) 189 CLR 520, the Court has insisted that the doctrine is limited to protecting only those institutions of representative and responsible government identifiable in the text. See below n 15-17 and accompanying text.

10 Lange (1997) 189 CLR 520, 566.

11 See below nn 214-16 and accompanying text.

12 See below nn 119-24 and accompanying text.

13 See, Richard Fallon, ‘Individual Rights’ (1993) 27 Georgia Law Review 343; Kent Greenawalt, ‘Free Speech Justifications’ (1989) Columbia Law Review 119, 127.

14 Referring to the ‘interest’ the freedom serves seems to suggest that its justification is ‘consequentialist’ i.e., that is justified because it gives rise to some desirable state of affairs (as opposed to a ‘non-consequentialist’ justification which would assert that the principle is ‘right’ or ‘just’ irrespective of its consequences). See Greenawalt above n 13, 127-28. However, the argument better falls into a category that Professor Greenawalt describes as ‘coherence arguments’, arguments that ‘given certain institutions or practices, having freedom of speech is required, or at least is positively indicated.’ Ibid, 129. As Greenawalt points out ‘[a] full defense of such an argument requires reasons why the underlying institutions may be taken as starting points and reasons why free speech connects to the underlying institutions.’ Ibid, 130. I will not attempt that full justification here. Suffice it to say the argument would have two steps: (1) an argument for the legitimacy of the Australian Constitution; and (2) an argument that these institutions ought give rise to a freedom of political communication. On the first point see Geoffrey Lindell, 'Why is Australia's Constitution Binding? The Reasons in 1900 and Now, and the Effect of Independence' (1986) 16 Federal Law Review 29. The second point is addressed most clearly by the High Court in Lange (1997) 189 CLR 520, see also Australian Capital Television (1992) 177 CLR 104.

15 Lange (1997) 189 CLR 520, 566-67.

16 Lange (1997) 189 CLR 520, 560, quoting Australian Capital Television (1992) 177 CLR 106, 187 (Dawson J).

17 Lange (1997) 189 CLR 520, 561.

18 Though it apparently does not cover ‘offensive’ satire of members of Parliament. See below nn 34-35 and accompanying text.

19 See below Part I A.

20 Nationwide News (1992) 177 CLR 1, 50 (Brennan J). Other expressions include ‘public affairs and political discussion’, ‘the government of the Commonwealth’; ‘all political matters’; political discourse’ and ‘communication in relation to federal election Australian Capital Television (1992) 177 CLR 106, 138 (Mason CJ); 169 (Deane and Toohey JJ); 214 (Gaudron JJ) and 227 (McHugh J).

21 See below nn 88-89 and accompanying text.

22 For a review of these decisions, see Adrienne Stone, ‘The Freedom of Political Communication since Lange’ in Adrienne Stone and George Williams (eds) The High Court at the Crossroads: Essays in Constitutional Law (2000).

23 For a critique of this part of the Lange decision, see Adrienne Stone ‘The Limits of Constitutional Text and Structure’ (1999) 23 Melbourne University Law Review 668.

24 (1997) 189 CLR 579.

25 Levy (1997) 189 CLR 579, 596 (Brennan J); 626 (McHugh J).

26 See, Theophanous (1994) 182 CLR 104, 122 (Mason CJ, Toohey and Gaudron JJ); 164 (Deane J).

27 (1998) 154 ALR 67.

28The article contained the declaration that ‘the injunction against stealing from capitalism is itself a capitalist ideology and should be spurned as such’. Brown v Classification Review Board (1998) 154 ALR 67, 89.

29 (1998) 154 ALR 67, 87 (Heerey J). See also the judgment of Sundberg J: ‘[T]he article does not relate to the exercise by the people of a free and informed choice as electors.’ (1998) 154 ALR 67, 98. Sundberg J also took this view because only a small portion of the article was devoted to material that could be described as ‘political’, the article was ‘overwhelmingly a manual about how successfully to steal.’ Ibid

30 John Fairfax Publications Pty Limited v Attorney-General (NSW) [2000] NSWCA 198

31 Section 101 of the Supreme Court Act 1970 (NSW) allowed the Attorney-General of New South Wales to bring appeals against an acquittal for contempt. The appeals, which were to be held in camera, had no legal effect on the acquittal but allowed the Court of Appeal to clarify matters of law. The New South Wales courts exercise state and federal jurisdiction and, as a result, the contempt proceedings the subject of s 101 might relate to the prosecution of a federal offence. Therefore, ‘the policy of a State Attorney manifest in the contention put on her or his behalf may be relevant to decisions at a Commonwealth level on the exercise of such powers as the Commonwealth may have to affect the operations of State courts in the exercise of federal jurisdiction or, indeed, whether to modify the conferral of such jurisdiction.’ Fairfax [2000] NSWCA 198 para 105 - 106.

32 In particular, the majority in Fairfax recognized that the possibility that Commonwealth might chose to act in relation to some issue might make discussion that issue one that the freedom should cover. I make this point below nn 61- 64 and accompanying text. (Spigelman CJ with whom Priestly JA agreed).

33 [2000] NSWCA 198 para [83].

34Australian Broadcasting Corporation v Hanson (Unreported, 28 September 1998).

35 The Court’s reasoning as to the freedom of political communication issue is strikingly brief: ‘Enjoining the broadcast of this material could not possibly be said to infringe against the need for free and general discussion of public matters fundamental to our democratic society. These were grossly offensive imputations relating to the sexual orientation and preference of a Member of Parliament as part of a fairly mindless effort at cheap denigration.’ Australian Broadcasting Corporation v Hanson (Unreported, 28 September 1998). The High Court subsequently denied special leave to appeal with no further argument about the freedom of political communication. See Australian Broadcasting Corporation v Hanson, Transcript, 24 June 1999 (High Court of Australia).

36 Especially considering that in Fairfax the freedom of political communication claim succeeded. See above n 31.

37 In Levy, the countervailing interest was the physical safety of protesters close to the duck hunt, in Hanson, the protection of Ms Hanson’s reputation and in Fairfax, the ‘in camera’ requirement protected the acquitted person from further public scrutiny. Brown could be justified on the basis that the interest in the prevention of illegal activity outweighed the value of the political message in the suppressed speech, a conclusion that would be strengthened by the fact that the ideological material in the article was overwhelmed by the material describing how to commit a crime. This final point was made by Sundberg J, see above n 29.

38 See above n 7.

39 Levy (1997) 189 CLR 579, 599 (Brennan CJ); 609 (Dawson J); 614-615 (Toohey and Gummow JJ); 619-20 (Gaudron J); 627-28 (McHugh J); 648 (Kirby J). This was also the position taken by Justice French, the third member of the Court in Brown. See Brown (1998) 154 ALR 67, 80.

40 Where a court reaches that conclusion, a claim for infringement fails at the first step, and it is unnecessary to consider the separate question of whether the particular law in question was a permissible regulation of political communication. Lange (1997) 189 CLR 520, 567-68.

41 See above n 16 and accompanying text.

42 Levy (1997) 189 CLR 579, 592.

43 See Tasmania v Commonwealth (1983) 158 CLR 1 (upholding legislation protecting wilderness areas in Tasmania enacted pursuant to the external affairs power in s 51(xxix)).

44 See Murphyores v Commonwealth (1976) 136 CLR 1 (upholding federal legislation designed to protect the environment of Fraser Island under the trade and commerce power found in s 51 (1)).

45 The federal Parliament’s power under section 96 of the Constitution to make grants to states ‘on such terms and conditions as the Parliament thinks fit’ is subject to few, if any, restrictions. See Victoria v Commonwealth (1957) 99 CLR 575, 604 (Second Uniform Tax Case).

46 This interpretation was rejected by Justice Brennan who found that ‘the plaintiff’s intended protest related to the discrete State issue of the appropriateness of the relevant Victorian law.’ Levy (1997) 189 CLR 579, 596. His analysis of the plaintiff’s intention [the protester against the duck hunt] is at least questionable. An activist against duck hunting may well have a broader environmental agenda that she intends to promote by protesting a discrete issue. In any event, it is not clear why the intention of the plaintiff on this matter should be relevant. If the message the plaintiff intends to communicate actually is relevant to federal matters, then why shouldn’t it be within the coverage of the freedom? Further, even if the message was as limited as Justice Brennan’s suggests, the Federal Parliament might have the power to render the state law invalid by passing its own law or, at least, could seek to influence Victorian policy on these matters through its section 96 power to make conditional grants to states.

47 The purpose behind a law is generally irrelevant for the purpose of determining whether a law is within power. The exception being the few powers recognized to nominate a purpose that the Parliament may pursue such as the defence power (s 51 (vi)) and the treaty implementation aspect of the external affairs power (s 51 (xxix)). Typically, a law will be within power as long as it operates in a manner that it is sufficiently closely related to the ‘subject matter’ of the power. Herald and Weekly Times Ltd v Commonwealth (1966) 11 CLR 418; Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1. See, Leslie Zines, The High Court and the Constitution (4th ed, 1997) 27-8.

48 The fiscal dominance of the Commonwealth gives it much political influence, see Zines, ibid, [303-05].

49 (1998) 154 ALR 67, 80 (French J).

50 Though the case itself concerned state courts, the statement appears to be of more general import, implying that discussion of the conduct of federal courts is also excluded from the coverage of the freedom. The majority rejected the contention that ‘the conduct of the judiciary was itself a legitimate matter of public interest’ with a statement clearly directed to courts in general rather than state courts specifically: ‘[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.’ Fairfax [2000] NSWCA 198, paras [82], [84].

51See, Migration Act 1958 (Cth) Part VIII. The restrictions in Part VIII were introduced in 1994 in as a result of government frustration with ‘activist’ judicial decisions on refugee issues and in response to a perceived ‘refugee crisis’. See Mary Crock ‘Judicial Review and Part 8 of the Migration Act: Necessary Reform or Overkill?’ (1996) 18 Sydney Law Review 267.

52 The way state courts interpret federal statutes might, for example, be relevant to federal decisions as to whether state courts should continue to exercise federal jurisdiction either generally or in relation to some specific matter. Confusingly, the New South Wales Court of Appeal recognized this fact in the particular circumstances where the State Attorney-General was responsible for bringing appeals, but did not adopt the more general point. See Fairfax [2000] NSWCA 198, para [106], see above n 31.

53 The song (by a gay singer/comedian who used the name ‘Pauline Panstdown’) was entitled ‘I’m a Back Door Man’. It seems intended to satirize Ms Hanson’s conservative social views by portraying her as a homosexual man. It included the following lyrics: ‘ I’m a back door man, I’m very proud of it. I’m a back door man, I’m homosexual. I’m very proud that I’m not natural. I’m a backdoor man for the Ku Klux Klan with very horrendous plans’. The song used snippets of recordings of Ms Hanson’s voice, particularly her characteristic phrase ‘Please Explain.’

54 This conclusion is especially troubling in the light of statements in Levy, allowing for the coverage of communication that appeals to emotion (see Levy, (1997) 189 CLR 579, 613 (Toohey and Gummow JJ); 623 (McHugh J)).

55 In Hustler v Falwell (1988) 485 US 46, the Supreme Court of the United States, considering a particularly offensive and obviously inaccurate cartoon, recognized that ‘[t]he art of the cartoonist is not reasoned, or even handed but slashing and one-sided’, its force lies in ‘the emotional impact of its presentation’ and because ‘[i]t continuously goes beyond the bounds of good taste and conventional manners.’ Hustler v Falwell (1988) 485 US 46, 54 quoting C Press The Political Cartoon 251 (1981).

56 Remembering, of course, that any communication recognized as ‘covered’ by the freedom of political communication could still be regulated, even suppressed entirely, if the regulation meets the requirement, set down in Lange, that it be ‘reasonably appropriate and adapted to serve a legitimate end the fulfillment of which is compatible with the maintenance of … the system of government prescribed by the Constitution’. Lange (1997) 189 CLR 520, 567. See above n 7.

57 Robert H. Bork, ‘Neutral Principles and Some First Amendment Problems’ (1971) 47 Indiana Law Journal 1, 27-28.

58 See above nn 50-52 and accompanying test.

59 These issues that have been the subject of public debate in Australia but are not part of the policy proposals before the federal Parliament. It should be noted, however, that Pauline Hanson’s One Nation Party apparently supports a referendum on the introduction of the death penalty for certain offences see, http://www.onenation.com.au/Forms/Policies.html. However, there is only a single Senator representing that party in the Senate and the policy has not been seriously discussed in the Parliament.

60 For example, the Australian Labor Party specifically opposes the introduction of the death penalty. See Australian Labor Party, Platform and Policies 2000, as adopted at the 42nd National Conference - Hobart, 31 July to 3 August, Chapter 11 para 18; the National Party of Australia specifically opposes change to the Australian Flag. See ‘Our National Framework: Constitution and Parliament’ http://members.ozemail.com.au/~npafed/.

61 See below n 77.

62 The New South Wales Court of Appeal struggled with the breadth of this category in the Fairfax case. Although excluding the conduct of courts from the coverage of the freedom, the majority did concede that the prospect of a future constitutional referendum on the judicial power provisions of the Constitution could make the current discussion of the conduct of courts relevant to the referendum process (a constitutionally protected institution of representative government). Nonetheless, the majority did not accept that this argument brought the issue within the coverage of the freedom, noting that to accept it ‘would lead to the conclusion that there was virtually no subject that was not of a ‘governmental or political’ character’ See,

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