IFPC - Implied Freedom of Political Communication PDF

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Implied Freedom of Political Communication...

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IMPLIED FREEDOM OF POLITICAL COMMUNICATION APPLIES TO STATE ISSUE 1: Does ------------- breach the implied freedom of political communications (IFPC)? The High Court has held that an implied freedom of political communication exists as limitation to Commonwealth and State parliaments (Nationwide News). This limitation is derived from the Commonwealth Constitution, which reflects the principle of representative government through requiring the Parliament to be ‘directly chosen by the people’ (ss7 and 24), suggesting the existence of a right to vote which in turn implies the right to freedom of political communication (Nationwide News). If the ________ legislation fails the proportionality test put forth in Brown, it is likely that it breaches the implied freedom of political communication and will be held invalid. If state: From Unions NSW, This implied freedom extends to a state level, as political discourse is also likely to be relevant at a state level (Lange). LIMB 1 BURDEN: Does the law effectively burden the freedom in its terms, operation or effect? (Brown) The limitation only applies where the restriction of communication concerns ‘political or governmental matters’ (Lange). In Unions NSW, it was stated that this is a low bar, and the burden only needs to be more than ‘inconsequential’. Refer to p97 and 47 for more examples ccc & model ans i. Does X constitute as communication? In ACTV, Mason J expressed that communication must be between parties (generally the government and the public or the public alone), and does not include ‘one way traffic’. o In Levy, McHugh J stated that signs, symbols, gestures or images all constitute as forms of communication. o In Levy, Kirby stated that silent protest, lifting a flag, wearing a symbol of dissent, public prayer and meditation, turning away from a speaker, or even boycotting a big public event clearly constituted forms of political communication. o In Levy, Brennan CJ held that non-verbal conduct still constitutes communication. o In Levy, McHugh J also stated that communication can be emotive, irrational, inflammatory, offensive, insulting and unreasoned, protests designed to shock are still forms of communications o Similarly in Coleman, the offensive allegations against police officers were still political communications o Monis, hateful and insulting comments were still political communication o In Theophanous, it was held that criticism of candidates in their capacity of holding office was political communication. Therefore, as _______ is analogous to the example used by X, it is likely to constitute as communication. ii. Is the communication political/concern government? According to Nationwide News political communication constitutes of information that is likely to affect electors’ opinions and elections, as the ability to ‘vote intelligently’ depends on free flow of information. Here, the communication

‘discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office’ – Theophanous. Yes:  

Radio, TV (Australian Capital TV) Provision on insulting invalid if about political communication (Coleman)

     No: 

o Police, powerful arm of government (ability to speak about powerful people) Non-verbal communication is crucial to political expression (Levy: Brennan, McHugh, Kirby) Photographs (Levy) Assembly (ACTV) Everything is, you just need to find a way of justifying it Some kind of speech will be able to impact the way people vote, then it is political

Published letter accusing bias due to ethnic background (Theophanous)

Defamation: As X is a political figure, it is likely that Y will not be liable for defamation if they were not actuated by malice and took reasonable steps to verify truth of defamatory imputation (Lange). Here, Therefore, it is likely the court will find the X act places a burden on the IFPC. LIMB 2 COMPATIBILITY: Is the purpose of the law legitimate, in that it is compatible with the constitutionally prescribed system of representative and responsible government? The second limb of Brown requires that purpose of X is compatible with the system of representative and responsible government. o In Adelaide City Corporation, Justice Hayne states that the purpose of ensuring the safety and convenience of road users was consistent with responsible and representative government. Similarly in Levy, the safety of the public in hunting areas was considered legitimate o In Monis, French J stated the actual purpose of preventing the dissemination of material that it prohibited was too broad, and thus was not consistent with the system of responsible government. Here, as the X’s purpose is quite specific and narrow, it is likely that it will not be held inconsistent. o In Unions NSW, while the general anti-corruption purpose of the Act was compatible, the selective targeting in the impugned sections, which seemed to target the opposition party, were deemed incompatible, and thus the purpose of the act was judged as being not legitimate. Here, the facts can be distinguished from Therefore, it is likely the X Act will be held compatible. LIMB 3 PROPORTIONALITY: Is the law reasonably appropriate and adapted to advance that legitimate purpose? Where the law is not directed at political communications, and the limitation occurs as an incidental effect, it is likely that the IFPC will not apply. (Crennan & Kiefel, Adelaide City Corporation) a) Suitability: Is there a rational connection to the purpose? a. As it is likely the X Act will set out to achieve its purpose, as [facts]. Therefore, it is likely to be found rationally connected to its purpose and suitable. b) Necessity: Could a less restrictive means fulfil the same purpose? is there no obvious and compelling alternative, reasonably practicable means of achieving the same purpose with less restrictive effect? In ACTV, it was held that the law was invalid as there were other less drastic means by which the objective could have been achieved through. This is reflected in Levy, where the law was held valid, as it was strictly limited in its scope regarding the time and space it operated.

In Coleman, it was held the law was disproportionate as the provisions were too broad and restrictive. Here, it is entirely possible for the Act to be less restrictive in its application, for example by… therefore, it is likely to be held unnecessary. As governments seek to achieve their goals at the lowest economic and social burden, it is likely that there will rarely be better alternative at less cost. In Levy, the court stated that safety holds precedence over communication. Therefore, in this case As stated by Mason CJ in ACTV, the ______ is likely to fail as it places a restriction on the subject matter rather than the mode of communication, which weighs a higher burden.

c) Adequacy: is there balance between importance of purpose and restriction on freedom, does the benefit outweigh the infringement? In McCloy, it was stated that the ‘greater the restriction on the freedom, the more important the public interest purpose of the legislation must be for the law to be proportionate’. CONCLUSION

DIY Map of IFPC:  Step 1 Burden: Judgments defining what counts as political communication: o Nationwide News Theophanous  Is the communication political?  What does communication mean?  Step 2 Compatibility: judgments suggesting what kinds of purposes are not legitimate: o French CJ in Monis, and Unions NSW  Mode v substance o Judgment enunciating this standard: ACTV, if a regulation is just a mode then its ok o Question: where in the Brown test might this arise? Most likely in step 3B and 3C  Must be intelligent/reformed speech? o Judgments suggesting this standard: Nationwide News, Theophanous, Monis (Crennen, Kiefel and Bell jj)  Justice French doesn’t think it is in Monis case  Rely on past judgments to say it’s a greater burden/restriction on speech, if intelligent speech o Question: where in the Brown test might this arise? Maybe step 1, Most likely in step 3B and 3C  How does HC make constitutional implications? Would the communist party case fail this test?  Is it political? Yes, political party. Is it communication? Yes, o Operation and effect  Purpose: o Exclusion of particular party, o Avoid communist take over o Can be argued either way  Purpose avoiding erosion of democracy  Proportionality: o No, rational connection?  Not specific and rationally connected  Too distant a link

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 Vagueness Adequate?  Are we likely to have a communist take over?...