Week 11 Cons - Lecture notes 11 PDF

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Communist Party Case - Case concerned the validity of the Communist Party Dissolution Act 1950 - s 4: singles out the ACP by name, declares it to be unlawful association, breaks up the association of persons who form it and provides for the forfeiture, upon dissolution, of all its property to the Cth - s 5 & 6: directed against bodies, other than trade unions who are supposedly allied in a fashion to the ACP or who have communist connections. These sections authorise the gov to take action against any body in these selected categories if satisfied that the continued existence of that body of persons would be prejudicial to the security and defence of cth or to the execution or maintenance of the Cons - s 9 & 10: authorise the gov to disqualify communist from holding trade union office in certain industrial spheres and all cth positions - effect of these sections is to deprive the persons and the trade unions affected by their operation of a contractual capacity and of civil rights in respect of employment – Mctiernan J Act directly dissolve the ACP and authorised the dissolution of affiliated organisations if they were deemed by the Executive to be prejudicial to the security and defence of the Cth HC found 6:1 law fell outside the cth heads of power, therefore invalid

Identify the implied rights that have been accepted by the High Court. • Is the process of implying such restrictions on legislative power a legitimate function of the High Court? Freedom of Political Communication Source Australian Capital Television v Commonwealth (1992) (ACTV) o Broadcasters challenged Cth legislation regulating political advertising. O Under Pt IIID of Broadcasting and Televison Act, Prohibition of all political advertising in elections. Instead 90% of free broadcast time was allocated to political parties. Parties without sitting members & independents were given remaining 10%. No provisions for groups not standing (e.g. trade unions). All members of the Court held that the Constitution protected freedom of political communication and a majority of 5:2 held that legislation unjustifiably overrode that protection Nationwide News v Wills (1992) o Regulations that banned ‘bringing the Industrial Relations Commission into disrepute’ - Newspaper published was prosectued under the provisions when one of the newspaper columnists accused the Commissioners of being corrupt and compliant and chaterised them as occupying a Soviet Style fascistic position over the Australian Workforce - provsions was challenged for being beyond Cth legislative power with respect to conciliation and arbitration and for infringing freedom of political communication

- After interpreting the provisions as not permitting any exceptions for “fair comment” or “honest and reasonable mistake” the HC unamiously struck them down - Mason CJ, McHugh & Dawson J stated that the provisons were outside the scope of s51(xxxv) and Deane, Toohey & Gaudron JJ judges held that provisions were within the scope of the head of power but they breached an implied freedom of political communication Couldn’t agree on source at the time, agreed on source in lange Views of source of Freedom  Broad o The text and structure of the constitution established a representative democracy and thus, incorporated, by implication, a degree of freedom of communication (Mason CJ, Brennan, Deane, Toohey and Gaudron JJ).  Narrow o Implications must appear from the terms of the instrument itself. Ss7 & 24 ‘directly chosen by the people’. A true choice means appreciation of the choices. An election without appreciation of choice is not an election for the purposes of the constitution (Dawson J).

 Middle o Meaning of ss7 & 24 are informed by conceptions of representative government and responsible government (McHugh J). Developments on Source Theophanous v Herald and Weekly Times Ltd (1994) Theophanous, member of the house of reps & chair of an inquiry on immigration, sued the Herald & Weekly times over a letter that they published, as well as the author of the letter, in the letter the author accused Theophanous fi standing for things Australians were against of being biased towards Greeks and of conducting “idiot antics”. Defendant argued that the letter was protected by implied freedom of political communication which constituted a sufficient defence to a CL action in defamation o Majority held that freedom of political communication was a defence to defamation. o McHugh & Dawson JJ (dissent) – No application to defamation. Concerned the reasoning had strayed too far from the text of the constitution. o McHugh J – ss7 & 24 deals with elections, not general politics. o Deane J - Nothing in the Constitution indicates that the failure to include a detailed list of rights means that they should be ignored. It is a ‘living instrument’. o Brennan J – Concerned about judicial policy’s role in the constitution.

Lange v Australian Broadcasting Corporation (1997) - David Lange, who was an ex-NZ PM, sued the ABC for defamation. ABC was relying upon Theophanous and Stepehens, claiming that is was in part protected by the implied freedom of political communication  The constitution gives effect to the institution of representative government, only to the extent that the text and structure of the constitution establish it.  question is not “What is required by representative and responsible government”, it is “What do the terms and structure of the constitution prohibit, authorise or require?”  Gives effect to ss 7, 24, 64, 128 and other sections of the constitution.  Ss7 & 24 embraces all that is important in elections. What this means is determined by representative government and democracy

FREEDOMS OF MOVEMENT, PARTICIPATION AND ASSOCIATION Kruger v Commonwealth (1997) Plaintiff argued that the Aboriginals Ordinance 1918 was invalid to the extent that it authorised the forced removal of Aboriginal Children form their parents, families and Communites, and the detention of Aboriginal people on reserves. One ground upon which this was based was that the Ordinace infringed implied Constitutional freedoms of movement and association. HC had to determine not only whether to recognise such implied freedoms but also whether they would apply to law making in respect of the Territories under s 122 o Did NT ordinances infringe implied rights of association and movement? o Gaudron, Toohey and McHugh JJ - it exists when accompanying a freedom of political communication. o McHugh J – no application because of s122 (representative govt is not a requirement in the Territories). o Toohey J– did apply, but evidentiary burden too large. o Gaudron JJ – did apply (proportionality test). o Brennan CJ & Dawson J – if freedom did exist, it did not do so in the territories. o Brennan CJ and Gummow J - only as a corollary to freedom of political communication Mullholland v Australian Electoral Commission (2004) o McHugh J affirmed his belief in the existence of the implied freedom. o Kirby J – found implication in ss 7, 24, 15. o Gummow & Hayne JJ– corollary to freedom of political communication only. Wainohu v NSW (2011)  Would exist only as a corollary to freedom of political communication. Limits could be imposed in circumstances which conformed to the freedom.

VOTING EQUALITY and Voting rights Voting Equality ‘One vote one value’? Attorney-General (Cth) (Ex rel McKinlay) v Commonwealth (1975) o Issue: Strict quantitative voting equality? o Did disparities in numbers of electorates breach s24 “directly chosen by the people”? o 6:1 rejection. There may be some degree of quantitative disproportion that will breach the constitutional requirement for a choice by the people. o Electoral redistribution had to occur automatically at reasonable intervals to take into account population shifts etc. McGinty v Western Australia (1996) o WA allowed 15% deviation from strict quantitative equality to take into account qualitative factors.  McHugh J – inequality of individual voting power is one of the Constitution’s striking features.  Dawson & Gummow JJ – there may be some point at which an electoral distribution is so disproportionate as to violate the constitution.  Brennan CJ & Gummow J - no requirement of strict voting equality could be implied re the WA constitution.  Toohey & Gaudron JJ (dissent) - there was an implied requirement of qualitative voting. Found it to be unjustly infringed in WA. Persons elected under a system involving significant disparity could not be considered ‘chosen by the people’ (Gaudron J). Voting Rights \ Attorney-General (Cth) (Ex rel McKinlay) v Commonwealth (1975) o Obiter: Votes may be denied franchise (Gibbs J); No guarantee of universal suffrage (Stephens, Mason JJ); At some point choice by electors could cease to be able to be described as a choice by the people of the Cth (McTiernan, Jacobs JJ). Roach v Electoral Commissioner (2007)  Regulations removed the right to vote from all convicted felons.  Gummow, Kirby, Crennan JJ– the existence of freedom of political communication applied to entrench rights to vote. Restrictions – ‘reasonably appropriate and adapted …’  Gleeson CJ – grounded in ss7 & 24, & exclusion based on “substantial reason”. Criterion of imprisonment per se was not a substantial reason. Rowe v Electoral Commissioner (2010)

 Laws that shortened time to enrol to vote (1 day) found invalid.  Cth argued trying to diminish voter fraud, enhanced accuracy & preserved resources.  No evidence of significant fraud – affected too many people.  Not necessary or appropriate.  Dissents – influenced by the fact that people affected by the law were all people who had failed to comply with their statutory duty to enroll.  At the time when the choice is to be made by people, are eligible persons disqualified from doing so? (Gummow, Bell JJ)

2. How has the High Court differed in relation to identifying the source of the implied freedom of political communication?

3. The implied freedom of political communication is more limited than the general freedom of speech protected by US constitutional law. Consider whether the Australian implied freedom can operate consistently with Commonwealth legislation prohibiting: (a) the burning of effigies of the Prime Minister of Australia, the Governor-General or the Heads of State of other nations, and (b) the use of obscene language by federal politicians in Commonwealth Parliament, or any other location?...