Week 10: Implied Freedom of Political Communication PDF

Preview

Summary

Lecture notes for Week 10 of Constitutional Law, Dr. Anna Olijnyk ...

Description

Week 10: Implied Freedom of Political Communication

- This limitation is implied in the constitution, not expressly stated. - Brown v Tasmania • Bob Brown well known environmentalist. • He was arrested under the act for being on public land and not doing anything than talking to the cameras. He brought a challenge to the HC of this act.

• The Workplaces (Protection from Protestors) Act 2014 (Tas) - Explanation for intention of the legislation: ‘Tasmania will now have the strongest legislation in the country to protect the rights of workers to lawfully earn a living, while ensuring the right to free speech and legitimate protest have been protected… No longer will Tasmania tolerate the extremists; you may have your say but you may not stop workers from earning a living.’ (Minister for resources, Paul Harris).

- In the ministers mind there is a balance between workers and protest. - The legislation itself defines protest very broadly; and creates a series of new offences (eg. entry or remaining on a business premises; doing acts on business premises). The term business premises is also very broad. There are also substantial penalties ($200,000 or 5 years imprisonment).

- These laws came under immediate scrutiny from the UNHCHR: ‘the law itself and the penalties imposed are disproportionate and unnecessary in balancing the rights to free expression and peaceful assembly and the government’s interests in preserving economic or business interests.’ Kaye went on to suggest that the ‘bill would have the chilling effect of silencing dissenters and outlawing speech protested by international human rights law.’

- The immediate question before the HC is whether the Tasmanian legislation is consistent with freedom of political communication.

- This is also a test case regarding how we balance the freedom of political communication with other people’s right to go about their lawful business without being interfered with. In striking this balance is the High Court stepping outside of its proper judicial role and telling the parliament how to legislate?

62

Basis of the implied freedom

- Australia doesn’t have a bill or charter of rights, because of this, when the High Court suddenly found that there was such a thing as an implied freedom of political communication, this caused a big commotion.

- It’s different having an implied right as opposed to an expressed right. - Nationwide News and ACTV (1992) HC decided there is freedom of communication about politics and public affairs that is indispensable to representative government, and is protected by the constitution.

- Lange (1997): Representative and responsible government as required by the text and structure of the Constitution:

- The Constitution provides for representative government: see ss 7, 24, 1, 8, 13, 25, 28, 30.

- Also provides for responsible government: ss 6, 49, 61, 62, 64, 83. - ‘Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates by directing that the members of the house of Representative shall be ‘directly chosen by the people’ of the Commonwealth and the States, respectively.’

Effect of Implied Freedom

- Limit on State and Commonwealth legislative and executive power. - Influence on the common law - eg on the law of defamation in Lange - Not an individual right

63

Evolution of the test

- After Lange and the McCloy case, we have a test for determining whether it infringes on implied freedom and political communication:

- 1) Does the law effectively burden the freedom in its terms, operation or effect - (does this law impose a burden? and is it a burden on freedom of political communication? So firstly, we need to work out if theres a burden - if there is a hurdle put towards communicating ideas?)

- (also need to determine what is political communication? So political communication has to be some sort of communication that has to do ultimately with the choice voters make at the ballet box - doesn’t have to directly be about politics, but it can’t just be about anything).

- 2) Are the purpose of the law and means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government?

- (Looking at whether the purpose of the law and the means, are compatible with this idea of representative government. So you’re looking at the two aspects, both the purpose, and the means adopted to achieve the purpose, that have to be compatible.)

- 3) Is the law reasonably appropriate and adapted to its legitimate object? - a) Is the law suitable to achieve its purpose? - b) Is the law necessary to achieve its purpose? - c) Is the law adequate in its balance? - (The McCloy case really broke this section down into 3 sections, bringing more certainty and clarity to the law.)

- Looking at each of these individually now…

64

Burden on Implied Freedom: Step One

- ‘Does the law effectively burden the implied freedom of political communication in its terms, operation or effect?’

- How big does the burden have to be? - Just needs to put some sort of hurdle to the communication of ideas - Not very. See French CJ, Hayne, Crennan, Kiefel and Bell JJ in Unions NSW; French CJ and Hayne, Crennan, Kiefel and Bell JJ in Tajjour.

- Gaegler J in Tajjour: said its important to look to the quality of the burden, rather than the quantity.

- What is political communication? - No single authoritative statement on this. - Key Idea: what do people need in order to make the sort of ‘choice’ of representative required by the Constitution?

- Government gives the people information about its activities and policies - People give the government feedback on its performance, and communicate their needs; but people also need to be able to discuss amongst themselves, not just directly to the government

- Government is responsive to the people - See discussion in Nationwide News (Deane and Toohey JJ) and ACTV (Mason CJ and McHugh J)

65

Compatibility Testing: Step Two

- Are the purpose of the law and means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government? - McCloy called this ‘Compatibility Testing’

- Seems to involve three questions: - 1) What is the purpose of the law? - Eg. in the Bob Brown scenario, the Gov will probably say the purpose of the law is to protect workers from their jobs being interrupted by protestors; thus protecting local businesses.

- 2) Is the purpose legitimate? - Examples of legitimate ends: - Protecting reputation (Lange) - Public safety (Levy, Wotton) - Preventing breaches of the peace (Coleman) - Preventing crime (Tajjour) - Safety and convenience of road users (Street Preachers) - Preventing the intimidation of participants in political debate (Coleman) - Preventing corruption in State government and electoral processes (McCloy) - What is a legitimate end? We can look at Monis v The Queen (2013) - This case was about Monis and another, writing offensive letters to family members of deceased soldiers.

- They were prosecuted under an obscure law that you can’t communicate highly offensive letters / ideas by way of post.

- Monis argued this breached his freedom of political communication, so the court had to determine whether offensive language was political communication.

- The court was split 3:3. - 3 male judges held that offensive language was political communication, and thus had no legitimate end.

66

- 3 ladies felt that the purpose of the law was to ‘protect people from the intrusion of offensive material into their personal domain: a legitimate end.’

- This case had 6 judges because it was heard just before Gummow retired. - Because the HC was split, the decision of the lower court stands, and the lower court found the law was valid and therefore that decision stood.

- 3) Are the means used to achieve the purpose legitimate? - Not a high threshold - eg. Bob Brown; are they doing it in a legitimate way? Yes.

Proportionality: Step Three

- Is the law reasonably appropriate and adapted to its legitimate object? - Three stages: - (i) Is the law suitable to achieve its purpose? - Bob Brown for example: this law intends to protect workers, and workplaces etc; is the law suitable in terms of is it going to work to achieve that purpose? Low threshold.

- This purely asks is it suitable to achieve the purpose - Example: Unions NSW - Unlawful for political parties and candidates to accept donations from anyone who was not enrolled to vote.

- Ostensible purpose: to reduce corruption by removing the influence of corporations on the political process.

- Held: no rational connection between the law and the anti-corruption purpose. - (ii) Is the law necessary to achieve its purpose? - We are asking, is there an obvious and compelling alternative, reasonably practicable means of achieving the same purpose which have a less restrictive effect on the freedom?

- Can I have a lesser means that is going to achieve the same purpose? - This part looks at whether there is an alternative means to achieve the same purpose, which would restrict the freedom of communication less.

- You have to consider what else could be done to achieve this (need to use your imagination a little, but also draw analogy with cases)

67

- (iii) Is the law adequate in its balance? - Balancing the individual values of freedom of political communication on the one hand, and the purpose of the law on the other.

- ‘A criterion requiring a value judgement, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.’ (McCloy v NSW [2015] HCA 34, [2] (French CJ, Kiefel, Bell and Keane JJ))

- Judges are wary that their going to be accused of making political judgements; so they say right away that it requires a value judgement.

- So how do we work this out?? - We can look at the nature of the burden (this principles are guiding principles): - Direct and incidental burdens: see Wotton and Hogan v Hinch - Direct burdens - harder to justify - (if the law directly says you cannot have political advertising in relation to elections, its a direct burden on the freedom of political communication)

- Incidental burdens - easier to justify - (But if it said you cannot be in a duck shooting area for safety reasons and you want to protest against duck shooting, thats an indirect burden; because it wasn’t actually targeting political communication it was targeting safety in duck shooting areas, but incidentally it meant protestors couldn’t go in the area)

- Also; Mason CJ in ACTV: - Laws that directly target ideas will be harder to justify - Laws targeting an activity or mode of communication by which ideas or information are transmitted - easier to justify

- We can look at the extent of the restriction - The greater the burden, the less likely the law is to be valid (see French CJ, Hayne, Crennan, Kiefel and Bell JJ in Unions NSW)

- So if you have an outright prohibition, thats more likely to be invalid BUT - If its a prohibition coupled with permission (eg. no person shall do this, without permission) it will be more likely to be valid

68

- If you have prohibition with exceptions: eg you can’t do this, unless its in these circumstances: more likely to be valid.

- Also consider the breadth of prohibits (eg. Crennan, Kiegel and Bell JJ, eg does it relate to only offensive material, or ALL material sent to someones home?)

- This whole test could change after Brown, who knows!

Problem Question Section 226 of the Local Government Act 1999 (SA) provides, relevantly: 226—Moveable signs! (1) Subject to this section, a person may place and maintain a!moveable sign!on a!road!without an authorisation or permit under this Part if (and only if)—! (a) the design and structure of the sign complies with the requirements of the!council's by-laws; and! (b) the sign is placed in a position that complies with the requirements of the!council's by-laws; and! (c) any other relevant requirements of the!council's by-laws are complied with; and! (d)

the sign does not unreasonably—!

! ! ! ! ! ! ! ! ! (i) ! ! ! ! restrict the use of the!road; or! ! ! ! ! ! ! ! ! ! (ii) ! ! ! ! endanger the safety of!members!of the public.! … (3) ! ! ! ! A person may place and maintain a!moveable sign!on a!road!without an authorisation or permit under this Part and without reliance on subsection!(1)!if—! … (c) the sign is related to a State or Commonwealth election and is displayed during the period commencing on the issue of the writ or writs for the election and ending at the close of polls on polling day; … and is displayed during the period commencing 4 weeks immediately before the date that has been set (either by or under either Act) for polling day and ending at the close of voting on polling day. Read this article. Has there been a breach of the implied freedom of political communication?

69

- (ss 3 seems to have already taken freedom of political communication into account, as it says that whilst normally you need a permit to put up sings; if its within an election period and its an election poster, you don’t need a permit) but nonetheless the answer should go as follows…

- First question, is the law valid? Is there power to pass the law, its a state act so we have plenary power therefore all good.

- Could this power possibly be limited? Yes, it may breach the implied freedom of political communication.

- Does the law impose a burden on the freedom of political communication? Yes it does, because it limits when you can advertise about politics; therefore its restrictive. But even outside of this election period you need a permit, and that in of itself is a burden.

- Then we got to compatibility testing the second step. Here we need to find the purpose of the legislation (there can be multiple). The purpose here is to ensure all political parties have the same time to advertise for their candidates, to make a level playing field. Other purposes include keeping the streets safe. Another is to keep the streets looking clean and pretty.

- Next we need to work out whether the purposes are legitimate. Here we need to address each of these purposes in turn. All three of these purposes are legitimate.

- Next we look at the means. What are the means as to how these purposes achieved? It’s establishing a time period where the complete prohibition on street signs is removed. Outside of this time period you need a permit. Are these means legitimate? Yes - needing a permit to put up signs normally, except during election period, seems legitimate.

- Next we look to the proportionality (the 3rd element). Is the law reasonably appropriate and adapted to its legitimate object?

- (a) Is the law suitable to achieve its purpose? - Clearly suitable, by having this system, it works in terms of achieving the purposes of this law.

- (b) Is the law necessary to achieve its purpose? - This part is slightly harder, as its a question of are there less restrictive means that could be used.

- Again, look at it for each purpose -> but on this case, these burdens are very mild. Don’t think theres anything that could be less restrictive but achieve purpose in same way. 70

- (c) Is the law adequate in its balance? - We need to balance the extent of the restriction of freedom of communication, as opposed to the importance of the purpose(s).

- What is the extent of the restriction? Quite small, it allows a lot of communication, even outside of election you can get permits. It also doesn't burden the ideas being communicated, but rather just the way in which its communicated.

- On the other hand, how important is physical public safety? Very important. Visual amenity? Also can be important. Level playing field argument? Extremely important.

- Therefore, extent of restriction is small, and purposes are very important. - Therefore this law, whilst it does restrict freedom of communication, does it in a proportionate way - therefore the law is valid.

71

ACTV Video Notes

- Australian Capital Television Pty Ltd v Commonwealth. - Foundation cases for freedom of communication. - Legislation that was challenging was the Political Broadcasts and Political Disclosures Act 1991 (Cth); it prohibition certain political adverting on radio or television during federal, territory, and local government election periods, with a few exceptions. This act was challenged because it infringed on discussion of political matters.

- View is that if we were to adopt a new constitution today, we would almost certainly have a bill of rights; thats legally enforceable stating what this implied freedom thing is getting at. It would guarantee free speech.

- The court had to decide two important issues: 1) Did the constitution imply any freedom of speech, and in particular, political free speech, even though its existence had not been discovered for 92 years. 2) Even if it did, could the Parliament regulate the exercise of such a guarantee, along the lines accepted in European countries which have a much more relaxed position of governing free speech than the United States.

- The Decision - 6/7 HC judges accepted that the constitution does contain an implied freedom of political communication. Dawson J only recognised a more limited freedom.

- The law was therefore found to be invalid. - Mason J considered the leading judgement in the case. - ‘Only by exercising that freedom can the citizen criticise government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives.’

- So Mason finds there does contain an implied freedom of political communication.

- He then turns to discuss how to determine when the freedom has been breached: he recognises that the freedom is not absolute: some government regulation is acceptable.

- He draws distinction between two types of laws: ‘A distinction should perhaps be made between restrictions on communication which target ideas or information and those which restrain an activity or mode of communication by which ideas or information are transmitted.’ He says the laws restraining the activity or mode are easier to justify, but to determine whether the law is valid, you have to weight the

72

public interest served by the execution of the law itself, against the public interest of freedom of political communication; to determine whether the restrictions are reasonably necessary, or disproportionate.

- Mason J looked at the purpose of the law; in this case, ‘to safeguard the integrity of the political process by reducing pressure on parties and candidates to raise substantial sums of money, thus lessening the risk of corruption and undue influence.’

- He then looked at the prohibitions placed on this law: he determined they were ‘sweeping prohibitions’ (ie. the laws imposed mass restrictions and was therefore disproportionate); as such he held the law was invalid.

...