Implied freedom of political communication notes PDF

Preview

Summary

constitutional law - political communications implied freedom...

Description

IMPLIED FREED OM OF POLITIC AL COMMUN ICATION The court can discern from the system of responsible and representative government and the doctrine of separation of powers established by the Constitution, a number of important guarantees. It was in a series of judgements by Murphy J during the 70s where the possibility of a jurisprudence of implied rights and freedoms first emerged. His Honour argued that the rights came from the ‘democratic theme of the Constitution’: A-G (NSW); Ex rel McKellar v Cth (1977) 139 CLR 527 at 569. The High Court rejected the legitimacy of developing an implied constitutional Bill of Rights in the manner suggested by Murphy J: Kruger v Cth (1997) 190 CLR 1. However, the court has developed a jurisprudence of implied rights and freedoms, most notably in Australian Capital Television Pty Ltd v Cth (No 2) (1992) 177 CLR 106 and Nationwide News Ltd v Wills (1992) 177 CLR 1 in which the court found that Constitution confers an implied right to freedom of political communication through its provisions which create a responsible and representative government. The implied freedom is a limitation on legislative and executive power, not a personal right: ACTV Pty Ltd v Cth To effect democracy, citizens must be able to communicate freely: Brennan J in ACTV. The implied freedom is a limitation on both Commonwealth and State legislative and executive power (Nationwide News; Lange). The limitation is derived from ss 7 and 24 of the Constitution which reflect the system of responsible and representative government by requiring members of the Senate and House of Reps to be directly chosen by the people. This derivation suggests the existence of the right to vote which in turn suggests that there is an implied freedom of political communication (Nationwide News).

THRESHOLD QUESTION: IS THE COMMUNICATION POLITICAL IN THE CONSTITUTIONAL SENSE? What is political communication?

Communication between the electors and the elected representatives, the electors and the candidates, and the electors themselves on matters that could affect a persons choice in elections or referenda or shed light on the performance of the Executive: Lange Deane J in Cunliffe v Cth (1994): ‘extends to the broad national environment in which the individual citizen exists and in which representative govt must operate.’ Defined in Theophanous as including ‘conduct, policies or fitness for office eof government, political parties, public bodies, public officers and those seeking public life’. It also includes political views and political conduct of persons who are engaged in activities that have become the subject of political debate: Levy. HCA has extended the implied freedom to be a defence to defamation: Theo Extends beyond the discussion of federal government: Nationwide News; Theo; Lange; Levy

Protected political communication Authority Discussion of conduct, politics, fitness for office of government, Theophanous political parties, public bodies, public officers and those seeking public office Discussion of the political views and public conduct of person Theophanous engaged in activities that have become the subject of political debates, eg trade union leaders Discussion on state and territory matter given the nationalization Lange; Union v NSW of political parties, State economic dependence on the Cth and the integration of social, economic and political concern Political communication includes insults/ emotional outbursts Coleman about Ministers, public servants and statutory authorities and public utilities which are obliged to report to the minister – insulting speech in public sphere Discussion/ insults of conduct of State police officers can shed Coleman light on federal govt give state police enforce both state and federal laws and offences can disqualify persons Discussion of matters concerning New Zealand was held to Lange throw light on Australian federal government matter given geography, history and constitutional trading agreements Discussion of matters relating to Aboriginals and indigenous Wotton affairs, including perceived injustices, and involved discussions about the government or political matter. Parole conditions restricted ability to attend public meetings & Wotton give media interviews was a burden on political communication as it prevents people from discussing politics. Law restricting funds and donation to political parties is a Union v NSW

burden to political communication as parties could not advertise and this would have an effect on political preferences. Sending hate mail and expressing views on dead soldiers’ conduct can influence our political views

Monis

Communication: As ACTV all forms of commination are within the scope of IFPC.  

Signs, symbols, gestures, images: ‘McHugh J in Levy’ Non-verbal conduct: ‘Brennan J in Levy’

 

public event: ‘Kirby J in Levy’ Letter or written communication: ‘Monis’

Lange test, as refined in Coleman v Power The test for determining whether a law infringes the constitutional implication of freedom of communication requires two questions to be answered, namely: 1. Does the law effectively burden freedom of communication about government or political matters either in its terms, operation and effect? If yes, 2. Is the law reasonably appropriate and adapted to serve a legitimate end compatible with our system of responsible and representative government?

McCloy test – refined the second limb of Lange and added ‘appropriate and adapted’ test. 1. Does law burden the freedom of communication in its terms, operation or effect? If yes, 2. Are the purposes of law and the means adopted legitimate and compatible with the maintenance of the system of representative government? (Coleman v Power) 3. Is the law reasonably appropriate and adapted to advance that legitimate object? Consider suitability (rational connection to purpose), necessity (no obvious alternative), and adequate in balance (value judgement). Whether the law is: a. Suitable: rational connection to the purpose of the provision

b. Necessary: accords with the enquiry identified in Unions NSW as to the availability of other, equally effective, means of achieving the legislative object which have a less restrictive effect on the freedom and which are obvious and compelling. If such measures are available, the use of more restrictive measures is not reasonable and cannot be justified c. Adequate in its balance (strict proportionality or balancing) – Value judgment as to whether the purpose of the law justifies the extent of the restriction on the implied freedom.

The McCloy test was reformulated in Brown v Tasmania (2017) 261 CLR 328 1. Does the law effectively burden the freedom in its terms, operation or effect? If so, 2. Is the purpose of the law legitimate in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government? If yes, 3. Is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

Comcare v Banjeri (2019) Suitability:

suitable if it exhibits a rational connection to its purpose/ capable of realising that purpose: at [33]

Necessity:

not lacking in necessity unless there is an obvious and compelling alternative which is equally practicable and available and would result in a significantly lesser burden on the implied freedom: at [35]

Adequacy in balance:

If a law presents as suitable and necessary in the senses described, it is regarded as adequate in its balance unless the benefit sought to be achieved by the law is manifestly outweighed by its adverse effect on the implied freedom. In this case, that directs attention to the quantitative extent of the burden and the importance of the impugned provisions to the preservation and protection of the system of representative and responsible government mandated by the Constitution: at [38]

Is the burden valid? Look at the ends of the law and the means of achieving the law – are they consistent with the system of representative and responsible government? Legitimate end Improving the quality of political debate and reducing campaign expenses and reliance of political donations. (by limiting TV & radio advertising) Protection of the authority (rights) of the Industrial Relations Commissions and its commissioners. (The IRC was a judicial body) Protecting the authority of law and respect for law is a legitimate end Quality control of migration advice Public safety: preventing on entering hunting site without license, prevent people from being shot accidentally Protection and facilitation of the voting system in Australia and the valid way to vote Protection of public order and peace in public: prevention of pubic disorder via hate speech. Fulfillment of penal policies – to consider community safety Preventing obstruction of roads and protecting safety from harassment Protecting reputation and people’s life from defamation Reduction in possibility of undue or corrupt influence Reducing corruption in electing by banning property developer donations

Authority ACTV

Nationwide

Nationwide Cunliffe Levy Lange Coleman Wotton A-G for SA Lange; Stephens Unions v NSW McCloy

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 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. 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)

CASES Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Defamation action against the ABC by Lange (former prime minister of New Zealand) for comments made during a television program. ABC relied on implied freedom. 

Text and structure of the Constitution provides for the institutions of representative & responsible government.



Freedom of communication between electors & candidates on govt/political matters is central to our system of government that requires members of government be ‘directly chosen by the people’.



This protection is not absolute and only limits legislative & executive powers; it is not a personal right.



The exercise of legislative power by way of the Defamation Act was reasonably appropriate & adapted to serving to the legitimate end of protecting personal reputation.

Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1 An organisation called Street Church had been convicted and fined for preaching without permission in Adelaide’s Rundle Mall. They were members of a religious organisation, and argued that their exposition of the gospel was as much political as religious. Although the challenged clauses placed a limit on political communication, they did not offend the implied constitutional freedom of political communication. The provisions served a legitimate end, namely preventing the obstruction of roads within the council area, which legitimate end did not function so as to be incompatible with the maintenance of Australia's prescribed system of representative and responsible government. Therefore, the challenged clauses were constitutionally valid. Lange test applied.

McCloy v New South Wales (2015) 257 CLR 178 Election Funding, Expenditure and Disclosures Act 1981 (NSW). Amendments to cap political party donations to $5,000 per party per f/y and to prohibit property developers (and others) from making donations).

Did these amendments impermissibly infringe the freedom of political communication on governmental and political matters? McCloy recognised within the scope of the implied freedom was a recognition of the value of equality of political participation, thus cannot buy your political influence. On this issue the Court distinguished our constitutional freedom from that in the US Bill of Rights

Brown v Tasmania (2017) 261 CLR 328 Workplaces (Protection from Protesters) Act 2014 (Tas) section 6 with respect to business areas/premises or business access areas prohibited protesters to prevent, hinder or obstruct the carrying out of business activities. ‘Business premises’ defined to include areas of land where forestry operations were being carried out. Forestry Tasmania were carrying out forestry operations in Lapoinya Forest . Bob Brown filming a protest film about logging in the Lapoinya forest. Arrested and charged under the Act. In the High Court, the plaintiffs challenged the validity of certain provisions of the Protesters Act on the basis that the Constitution protects freedom of political communication and that those provisions impermissibly burden that freedom A majority of the High Court held that, in their operation in respect of forestry land and business access areas relating to forestry land, the impugned provisions of the Protesters Act effectively burdened the implied freedom of political communication. A majority of the Court held that the Protesters Act pursued the legitimate purpose of protecting businesses and their operations by ensuring that protesters do not prevent, hinder or obstruct the carrying out of business activities on business premises. However, by majority, the Court held that the burden imposed by the impugned provisions on the implied freedom of political communication was impermissible because those provisions were not reasonably appropriate and adapted, or proportionate, to the pursuit of that purpose in a manner compatible with the maintenance of the system of representative and responsible government that the Constitution requires. A majority of the Court therefore declared that the impugned provisions were invalid.

Australian Capital Television Pty Ltd v Cth (No 2) (1992) 177 CLR 106

The High Court struck down the Political Broadcasts and Political Disclosures Act 1991 (Cth) which restricted political advertising during elections. In doing so, it recognised that the Constitution contains an implied freedom to discuss political matters. This freedom is primarily derived from sections 7 and 24 of the Constitution, which respectively provide that the members of the Senate and the House of Representatives 'shall be ... directly chosen by the people'.

Nationwide News Ltd v Wills (1992) 177 CLR 1 The court struck down legislation making it an offence to use words designed to bring a member of the Australian Industrial Relations Commission into disrepute.

Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 The plaintiff, a member of the House of Representatives, sued for defamation following a publication that attacked Theophanous’ immigration policies and accused him of bias. The HCA recognised a constitutional defence to defamation which appeared to characterise the implied freedom as a personal right Brennan J: 



When governmental powers are conferred by the Constitution, their scope is impliedly limited to the extent necessary to maintain the structure of government prescribed by the Constitution: at 148 The freedom which flows from the implied limitation on power is not a personal freedom: at 149

The view of Brennan J in Theophanous was endorsed by the HCA in Lange: the freedom is not a personal right that creates immunity from laws that might infringe it – instead, it is a constitutional limitation of legislative and executive powers. Levy v Victoria (1997) 189 CLR 579: three members of HCA reconfirmed that implied freedom was not a personal right but an immunity from legislative interference.

Preston v Avery; Clubb v Edwards Section 185D of the Public Health and Wellbeing Act 2008 (Vic) prohibited various behaviours, including communicating in relation to abortions with a person accessing an abortion provider in a ‘safe access zone’ around the clinic, if that communication is likely to cause distress or anxiety.

Section 9(2) of the Reproductive Health (Access to Terminations) Act 2013 (Tas) prohibited abortion protests that can be seen or heard by a person accessing an abortion clinic. The joint judges (Kiefel CJ, Bell and Keane JJ) restated the Lange test on the implied freedom as reformulated in McCloy (at [5]). Implied freedom does not guarantee a right to a mode of protest, that the common law right to protest may be abrogated by statute, and that this approach would depart from the Court’s settled approach to these questions (at [8]). The High Court unanimously upheld both provisions, McCloy Threshold question: is this political?

Effectively burden freedom?

Purpose and means legit and compatible with representative and responsible govt? Appropriate and adapted/proportionality Suitable

Necessary Adequate in balance

Comcare v Banjeri (2019)

Edwards Question whether discussion between individuals of the moral or ethical choices? Difficult line between speech for legislative or policy change and speech directed at an individual’s moral choice [29]-[39] ‘safe access zone’ proscribes communications that could be called ‘political’ and thus is a burden [41]–[43] ‘direct, substantial and discriminatory’ (Gaegler) purpose is to protect the safety, well-being, privacy and dignity of people accessing = compatible [54]–[56] Yes - spatially limited to the areas for accessing abortion clinics [78]-[79] - antiabortion activists are able to communicate their messages anywhere outside the safe access zones Yes – no other alternatives with less burdensome results [88]–[95] Yes - maintained the dignity of people by ensuring they are not ‘held captive’ by an ‘uninvited political message’, while also being a slight burden on both subject matter and geographical extent [99]-[102]

Administrative Appeals Tribunal decision on whether provisions of the Public Service Act 1999 (Cth) on terminating a public servant’s employment contravened the implied freedom of political communication. The provisions under challenge were ss 13(11), 10(1) and 15. Section 13(11) requires that APS employees ‘at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS’. Section 10(1) states that the APS Values include that the APS is ‘apolitical, performing its functions in an impartial and professional manner’. Section 15(1) empowers an Agency Head to sanction an APS employee who is in breach of the code, including by terminating their employment. The respondent contended that the exclusion did not cover the Department’s actions because the provisions contravened the implied freedom of political communication. After the cause was removed to the High Court for determination of the implied freedom question, the respondent contended before the Court that the provisions could not apply to ‘anonymous’ communication about the APS, and that, if the provisions did apply to anonymous communications, they were an unjustifiable burden on the implied freedom. The High Court unanimously allowed the appeal, rejecting the respondent’s arguments. The plurality (Kiefel CJ, Bell, Keane and Nettle JJ) held that the provisions did not impose an unjustified burden on the implied freedom, and that the termination of the respondent’s employment was not unlawful. Legitimate purpose There can be no doubt that the maintenance and protection of an apolitical and professional public service is a significant purpose consistent with the system of representative and responsible government mandated by the Constitution. [31] KIEFEL CJ...