The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication Adrienne Stone* Introduction

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The Limits of Constitutional Text and Structure:

Standards of Review and the Freedom of Political Communication

Adrienne Stone*

The High Court’s early decisions on the freedom of political communication were marked by an adventurousness that attracted much controversy.1 Some argued that the Court had departed from proper methods of interpretation in favour of a view, drawn from extra-constitutional sources, that the protection of free political communication was a desirable outcome.2 Perhaps then it was to the relief of some that the High Court appeared to retreat from that view in Lange v Australian Broadcasting Corporation.3 Although that decision confirmed that the freedom of political communication was an established feature of Australian constitutional law, it also confirmed the arrival of a renewed4 conservatism in the High Court’s approach to constitutional interpretation and to the freedom of political communication in particular.5 The implication from representative and responsible government that had given rise to the freedom of political communication was considerably confined. The Court announced that the freedom of political communication would be interpreted only by reference to those aspects of representative and responsible government that could be identified in the “text and structure” of the Constitution,6 eschewing any reference to “political principles or theories” extraneous to the Constitution.7

Although I have elsewhere joined in the criticism of the early freedom of political communication cases,8 especially the decision in Theophanous v Herald & Weekly Times,9 I do not share wholeheartedly in the relief felt by others in response to Lange. In this article, I argue that the High Court in Lange committed itself to an unsustainable interpretive theory. I will demonstrate this through consideration of an undecided doctrinal issue: the standard of review to be applied to laws implicating the freedom of political communication.

I should begin, then, by explaining the nature of that issue. Despite the High Court’s unanimity in Lange, the High Court has not yet clearly indicated the level of protection that political communication is to be given. Although the Court has given sustained attention to the question of what kinds of communications are covered by the freedom,10 the question of how much protection such communication receives from the freedom has not been clearly answered. If a particular communication falls within the coverage of the freedom of political communication, does this mean that no regulation of that communication can be justified? Or can reasonable regulation pursuing some legitimate interest be justified? Or, perhaps, does political communication, or some types of it, require special protection?11

The High Court’s answer to these kinds of questions has been rather unclear, even confused. Although at times the High Court appears to have settled on a proportionality test, at other times some members of the High Court have departed from this test and have held that a stricter standard of review, closely resembling the “strict scrutiny” test seen in American constitutional law,12 should apply to certain categories of cases. These doctrinal swings, moreover, have been neither acknowledged by the Court nor the subject of sustained scholarly attention.13

The resolution of this issue is a matter of considerable practical importance, but more importantly for my purposes, it demonstrates the limits of the interpretive method the Court adopted in Lange. Deciding on answer to the standard of review question will require that the High Court depart from its commitment to text and a limited kind of structural implication and develop the freedom of political communication by reference to some values or ideas that are not, at least according the High Court’s avowed interpretive method, readily identifiable in the Constitution.

I will begin, in Part I, with a review of how the High Court has interpreted the freedom of political communication, showing the shift in Lange to a reading more closely confined by the text. In Part II, I will consider the current state of the High Court’s doctrine on the standard of review question. I will show that the Court has fluctuated between adopting the relatively deferential proportionality test (or some synonymous formulation) as a single test to be applied to all regulation of political communication, and a “two-tiered” test that applies strict scrutiny in certain cases.

In Part III, I analyse these tests and the nature of the choice they present to the Court. With the help of some important debates that have occurred in the context of the First Amendment, I show that although each of these tests involves the balancing, or weighing up, of the interest protected by the freedom of political communication against some other interest, an important difference between the two tests lies in the degree of discretion each accords to the judge applying the rule. I conclude that in determining the future development of the standard of review, the Court essentially has to decide how much discretion is appropriate.

In Part IV, I will show that the method of constitutional interpretation to which the Court appears to have confined itself in Lange cannot provide it with the answers to this problem. The choice actually requires it to revisit more fundamental issues about the role of judicial decision-making, specifically the relative merits of, on the one hand, an approach that leaves judges with much flexibility and, on the other, one that constrains their choice but provides greater certainty.

I conclude by considering how the High Court ought to develop the doctrine in the future. I argue that whichever course it pursues, departure from the Lange method is inevitable. Although the proportionality test appears to be compatible with the Lange method, that test will only allow the High Court to postpone, rather than avoid, identifying the extra-constitutional values or principles underlying the freedom of political communication. The weighing of interests required by the proportionality test requires the High Court to draw upon values that underlie the freedom of political communication and over time the proportionality test will produce a doctrine that reflects decisions about those values.

Thus, the only choice for the High Court is how it chooses to express those value judgments. Although the flexibility provided by the proportionality test is especially to be valued as the freedom of political communication develops, I will argue the ultimate expression of these value judgments in relatively defined rules (like the strict scrutiny part of the two-tiered test) is a desirable outcome and, moreover, is actually supported by the Court’s general interpretive approach exhibited in Lange. For although that the Court’s commitment to “text and structure” cannot solve the problem of choosing a standard of review, the same values that gave rise to it would be well served by the development of more defined tests.

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