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Australian Journal of Human Rights |
Melinda Jones[1]
Despite an all-pervasive liberalism, the idea of freedom of speech has not been a central value of Australian political culture. In fact, a look at the relationship between law and free speech since Federation suggests that it would be optimistic even to imply a commitment to freedom of speech. So when, in 1992, the High Court discovered that the Commonwealth Constitution contained an implied right to freedom of political communication,[2] it may have been thought to be an occasion for "dancing in the streets".[3] However, some commentators have been more sceptical, both because of the fact situations which gave rise to the doctrine,[4] and because of the oddity of proclaiming a liberal value at a time when a commitment to equality would be more appropriate.[5] Given the rise of racial and religious hatred and homophobic violence, support for the idea of freedom of speech could be viewed as support for the rights of the perpetrator's of hatred to harass, intimidate and discriminate through stereotyping, and the denial of the right of victims of hatred to a voice or even peace of mind.[6] The two free speech cases decided this year7 represent a retraction from the strong free speech position which had been assumed to emanate from the Constitution. The question, then, is what do these cases imply for freedom of speech in this country?
Because commentators so often take the relevant background to understanding freedom of speech to involve the development of the legal and philosophical doctrine arising in the context of the jurisprudence of the 1st Amendment to the United States Constitution, it is important to recite here a different context and a different background which may help to illuminate the particularities of the Australian developments. With no Bill of Rights, the history of freedom of speech in Australia is one of occasional suggestion that the right to freedom of expression should be recognised, and many examples of specific interference with freedom of speech.[8] Beyond the myriad of incursions into freedom of speech which we accept in terms of laws relating to defamation, sub judice, blasphemy and privacy, in order to give a flavour of our history it is sufficient to make reference to the treatment of communists who were felt to pose a threat to the political integrity of Australia. A number of legal strategies were adopted to suppress the free speech of those who were thought to pose a threat to the established order.
The response to communism in Australia involved a combination of antipathy towards working-class radicalism and the fear of the Soviet Union, which had established itself as an expansionist world power after World War II. This fear was reinforced by the expansion of communism in Eastern Europe through the invasion of Czechoslovakia in 1948 and of Hungary in 1956. Despite the fact that the Australian Communist Party was a numerically small organisation, it had an impact that was disproportionate to its size. By the time of the 1949 miners' strike it was clear that communists had infiltrated and dominated many trade unions. By that time, the Victorian Government had already instigated an inquiry into the affairs of communists and the machinery of the law had been used to suppress the ideas of communism. The Menzies Government attempted to ban the Communist Party by legislation passed in 1950 but it was held unlawful by the High Court.[9] However, the subsequent Referendum in 1951 to amend the Constitution to give Parliament power to outlaw the Party very nearly succeeded.
Another means adopted to deal with communism was use of the immigration power. In Ex parte Walsh, In re Yates[10] 1925 the Government failed in its attempt decided to deport two foreign-born leaders of the 1925 seamen's strike under . The authority for the deportation was to be found in s 8AA(2) of the Immigration Act 1901 which allowed the Commonwealth Government to deport any person "not born in Australia" if the Minister was satisfied that the person had been concerned in Australia ..." in acts directed towards hindering or obstructing to the prejudice of the public ... and that the presence of that person in Australia will be injurious to the peace, order or good government of the Commonwealth". The move to deport the union leaders was defeated in the High Court in the case of Ex parte Walsh, In re Yates (1925) 37 CLR 32 when the individuals concerned were held not to be Although the Court found the leaders were not "immigrants" within the meaning of the Act, they. Had it not been for the drafting defect, this means of ridding the country of perceived trouble-makers would have been successful. The court found no fundamental political or moral objection to treating dissenters in this fashion.
A colourful episode involving immigration law involved Egon Kisch, a Czech communist came to Australia in 1934 to attend the All-Australian Congress Against War. Initially he was prevented from landing on Australian soil by the ship's master, so Kisch jumped overboard and in doing so broke his leg. The Minister of Customs then declared Kisch a "prohibited immigrant" pursuant to s 3 of the Immigration Act. Kisch's application to the High Court for habeas corpus was granted by Evatt J because it was found that the Minister's order was not technically in order[11], and so Kisch was released. Kisch was next required to pass a dictation test in order to establish that he was not an illegal immigrant, for dictation tests have also been a tool used to prevent "unwanted" immigrants. Section 3(a) of the Immigration Act provided -- in a clear expression of anti-Asian racism -- that it was an offence to remain in Australia upon the failure to pass a dictation test in a European language. Because Kisch was fluent in a number European languages, the test was set in Scottish Gaelic. He failed the test, and was immediately sentenced to six months' jail. On appeal to the High Court it was established that Kisch's conviction was invalid, and Kisch was set free.[12] Again the High Court betrayed no commitment to the idea of freedom of speech. Instead the decision was based on the finding that Scottish Gaelic was not a European language within the meaning of the legislation.13
The use of the law of immigration to restrict the entry of communists to Australia did not end in 1935. As recently as 1977, but this time with the support of the courts, the law was used to deport Salemi, a journalist who had been a member of the Italian Communist Party. Salemi had entered Australia on a temporary entry permit and became a prohibited immigrant, liable to deportation, when that permit expired. However, the Minister announced that there would be an amnesty for prohibited immigrants, and Salemi followed the procedures specified in order to be allowed to remain in Australia. Despite this, Salemi was not granted permanent residence -- instead his deportation was ordered. He was given no reason for the decision, and was not allowed to present his case to remain in Australia. Salemi applied to the High Court for judicial review of the decision on the grounds that the decision to deport him was made improperly. Salemi argued that he was entitled to a hearing and to be provided with the reasons for the decision, which had been made in breach of the principles of natural justice. In the absence of the protection of the right of a hearing and the right of reasons, the Minister was able to deport prohibited immigrants despite proclaiming that amnesty would be granted to such immigrants. In Salemi v MacKellar,14 the High Court found a deportation order given in such circumstances valid. As the court was evenly divided on the technical question of whether the Migration Act 1958 (Cth) intended to exclude the operation of the rules of natural justice, so the opinion of the Chief Justice that the deportation order was validly made prevailed, with the result that Salemi's deportation was upheld.[15]
A more scandalous episode in our legal history involved the use of the criminal law of sedition -- which attaches serious criminal liability to speech alone -- to suppress the expression of communist ideas. From the time of the Star Chamber, the offences of publishing seditious words and seditious libel have been used in English-speaking countries as a means of constraining the political speech of those wishing to challenge the political order.[16] The crime of sedition involves speech, spoken or published with seditious intent, which brings the sovereign, the government or the constitution into hatred or contempt, or excites disaffection against it. The common law offence was translated into statute in 1920, when it was incorporated into the Crimes Act 1914 (Cth). However, the statutory definition did not pick up the requirement, by then established in the common law,[17] that there must be an element of incitement to violence or public disorder until it was amended in 1986.
In 1949, two members of the Communist Party were jailed for simply expressing their political views. Burns, a rank-and-file member of the Communist Party, was jailed for participating in a formal public debate on the subject "That communism is not compatible with personal liberty".[18] During the course of the debate, Burns was asked "We all know that we could become embroiled in a third world war in the immediate future between the Western Powers and Soviet Russia. In the event of such a war what would be the attitude and actions of the Communist Party in Australia?" The initial response given by Burns was "If Australia was involved in such a war, it would be between Soviet Russia and American and British Imperialism. It would be a counter-revolutionary war. We would oppose that war. It would be a reactionary war". When pressed by the questioner to give a "direct answer to the question", Burns replied: "We would oppose that war: we would fight on the side of Soviet Russia. That is a direct answer". As Dixon J pointed out in his dissent, the statements which were found to be problematic were ones which Burns was pushed to make, and represented a view which Burns felt to be personal. Latham CJ and Rich J found that the words spoken were seditious; Dixon and McTiernan JJ did not agree. When the court is equally divided in opinion, under s 23 (2) (b) Judiciary Act 1903 (Cth), the opinion of the Chief Justice prevails. As such the decision sustained Burns' conviction and six month prison sentence. Not long after Burns' conviction was upheld, the Full High Court were called upon to consider the conviction of Sharkey,[19] the General-Secretary of the Australian Communist Party who was jailed for the following statement published in the The Daily Telegraph:20 newspaper on 5 March 1949 with respect to "communist policy in Australia in the event of the invasion of Australia by communist forces". The reporter gave evidence that he had read the statement to Sharkey over the phone about "ten or eleven times" and that Sharkey had altered some paragraphs and deleted others and finally had said that he was satisfied with the following statement:
If Soviet forces in pursuit of aggressors entered Australia, Australian workers would welcome them. Australian workers would welcome Soviet forces pursuing aggressors as the workers welcomes them throughout Europe when the Red troops liberated the people from the power of the Nazis. I support the statements made by the French communist leader Maurice Thorez. Invasion of Australia by forces of the Soviet Union seems very remote and hypothetical to me. I believe the Soviet Union will go to war only if she is attacked and if she is attacked I cannot see Australia being invaded by Soviet troops. The job of communists is to struggle to prevent war and to educate the mass of people against the idea of war. The Communist Party also wants to bring the working class to power but if fascists in Australia use force to prevent the workers gaining that power communists will advise the workers to meet force with force.
The entire Court held that his carefully worded statement was reasonably capable of being found by a jury to contain a seditious intent. The Full High Court upheld Sharkey's conviction and his sentence of 18, months imprisonment. The High Court failed to note the hypothetical nature of the words which were said to be seditious. It was obvious that at the time that Sharkey made the statement to the press there was no "clear and present danger" of a Russian invasion of Australia, and that Sharkey was careful to point this out. The court did not take the idea of "intention" in the legislation seriously. Despite the hypothetical nature of the words used, the court found the statement to be seditious. Except to the extent that readers may have chosen to accept the logic of the view espoused and be influenced thereby in their political thinking, the words could not even be said to constitute an incitement. Sharkey clearly had no intention to excite disaffection in anybody about anything. He did his utmost to ensure that this would be apparent from the words which he carefully chose. But on the High Court's analysis it would have been impossible for him to express this view in any form without being guilty of a crime.
These cases illustrate the fact that throughout Australian history, freedom of speech has, to the extent it has existed at all, been a privilege of the members of the dominant sectors of society. The views of minority players in society have been held precariously, at risk of being challenged as being illegal for some reason or other. While the story of the treatment of communism is the most extreme, no Australian human rights scholars have found the treatment to be exceptional. This accounts for the initial response to the 1992 High Court cases -- jubilation that perhaps, at last, someone in Australia is taking freedom of speech seriously.
In Nationwide News Pty Ltd v Wills21 and Australian Capital Television Pty Ltd v The Commonwealth,[22] the High Court held that there was an implied right to freedom of political communication in the Commonwealth Constitution. Nationwide News concerned the validity of s 299 (1)(d)(ii) of the Industrial Relations Act 1988 (Cth) which outlawed the use of words calculated to bring into disrepute the Industrial Relations Commission or any member of the Commission. The court was unanimous in finding the provision unconstitutional: Brennan, Deane, Gaudron and Toohey JJ, because it breached an implied right to constitutional freedom of communication; Mason CJ, Dawson and McHugh JJ because the provision was not authorised by s 51 (xxxv) of the Commonwealth Constitution as it was not reasonably incidental to the system of conciliation and arbitration.
Australian Capital Television involved a challenge to Part IIID of the Broadcasting Act 1942 (Cth), as amended by the Political Broadcasts and Political Disclosures Act 1992 (Cth). Part IIID was designed to restrict political advertising on broadcast media during election campaigns. The aim of the legislation was to foster a more open, honest and sophisticated political system by the regulation of political advertising during election periods. By reducing the amount of money needed to fund an election campaign, the risk of corruption was reduced. The High Court held this legislation to be invalid, with all Justices finding an implied constitutional guarantee of freedom of political discourse. The majority (Mason CJ, Deane, Toohey and Gaudron JJ) held the whole of Part IIID of the Broadcasting Act 1942 (Cth) invalid on the grounds of the implied guarantee of freedom of speech; McHugh J invalidated the whole of Part IIID except in its application to Commonwealth Territories; Brennan J found the implied guarantee but held that Part IIID did not contravene the guarantee except with respect to State elections; Dawson J found a limited right which was not breached by Part IIID.
In developing the implied doctrine, the High Court took as its starting point, the idea of representative government as enshrined in the Constitution. Justice Brennan (as he then was) explained that:
... where a representative democracy is constitutionally entrenched, it carries with it those legal incidents which are essential to the effective maintenance of that form of government. Once it is recognised that a representative democracy is constitutionally prescribed, the freedom of discussion which is essential to sustain it is as firmly entrenched in the Constitution as the system of government which the Constitution expressly ordains.[23]
All members of the High Court who recognised a right to freedom of communication of political matters and public affairs insisted that this right is not absolute. However, acceptable interference with the free speech principle was viewed in a number of different ways. One approach was to distinguish at the outset between restrictions on the content of the communications, and restrictions upon the time, place or manner of the communication. Restrictions directed at the content of the communication are, on this test, to be viewed with much greater suspicion, and be much harder to justify, than those dealing with the form of the communication.[24]
As far as Chief Justice Mason was concerned, where a restriction on freedom of communication targeted ideas or information, "only a compelling justification"25 could legitimise the restriction, and this justification will only warrant a burden which is "no more than is reasonably necessary to achieve the protection of the competing public interest"[26]. Chief Justice Mason assures us that, even in cases where a legitimate and important justification could be found for the restriction on speech, that in most cases paramount weight would, nonetheless, be given to the public interest in freedom of communication.[27]
In order to establish which public interests are be allowed to compete with the public interest in freedom of speech, Chief Justice Mason and Justices Brennan and McHugh adopted a test of proportionality. The question to be asked was whether the benefits of the impugned legislation are proportionate to the burden on freedom of communication.[28] Justices Deane, Toohey and Gaudron did not outline a process for resolving competing interests. However, Justices Deane and Toohey found that where the legislation in question prohibited political communications per se, this could only be justified where it proved to be consistent with the effectiveness of the communication, or where it did "not go beyond what is reasonably necessary for the preservation or an ordered and democratic society or for the protection or vindication of the legitimate claims of individuals to live peacefully and with dignity within such a society".[29]
Although there has been, since 1992, considerable divergence among members of the court as to the nature and extent of the guarantee, the tests of the acceptable limits to the doctrine of freedom of speech have remained consistent.[30] In the subsequent free speech cases, the court held that direct regulation of speech which involves information, ideas or argument about government during an electoral period falls foul of the constitutional guarantee;[31] that the implied guarantee extended to material concerning the suitability of candidates for office in the Commonwealth Parliament, and material relating to the duties of federal politicians;[32] that this limitation applied in relation to state politicians;[33] but that the implied freedom of communication did not invalidate a Commonwealth law which limited the ability of unregistered lawyers and others to provide advice to would-be-immigrants.[34]
Each of the High Court justices continued to accept that the right to freedom of political communication and discussion is not absolute.[35] However, a law which limits freedom of political communication will only be acceptable if it can be shown that it is necessary to meet a pressing social need and to serve some "overriding and important public interest".[36] Several of the judges stated that limitations on political discourse may be justified as being in the public interest for the reason that they do not go beyond what is reasonably necessary for the preservation of an ordered society, or for the protection or vindication of the legitimate claims of individuals to live peacefully and with dignity in society. Thus there must be sufficient evidence that the interference with speech is necessary, and is conducive to "the overall availability of the effective means of political communication and discussion in a democratic society".[37] Again, a far higher standard of justification is required where what is being restricted is the communication of certain ideas, where restrictions are directed at political speech.[38]
Justice Deane summarised the position:
In a case where what is involved is a general prohibition or regulation of a particular kind of communication or discussion as such or where there is a likelihood that a prohibition or regulation of a particular kind of communication or discussion will involve a significant curtailment of the freedom of political communication and discussion ... [then] reconciliation with the constitutional implication will be more difficult. That is also the case where the impugned law prohibits or controls a particular class or type of political communication or discussion which is either inherently political in its nature or is a necessary ingredient of effective political communication and discussion. In those cases, the law will be consistent with the implication only if its curtailment of the freedom of political communication and discussion can, according to the standards of our society, be justified in the public interest for one or other of the possible reasons identified ... in Nationwide News ... Those possible reasons are that the curtailment is conducive to the overall availability of the effective means of political communication and discussion in a democratic society or that curtailment does not go beyond what is necessary either for the protection or vindication of the legitimate claims of individuals to live peacefully and with dignity in such a society.[39]
It is therefore possible to justify such a law by balancing the interest that is being protected against the public interest in freedom of political communication and discussion, but generally speaking paramount weight would be given to the public interest in freedom of communication.
Not only must the impugned legislation be justified as necessary for protecting the claims of individuals to live peacefully and with dignity, it must also be proportionate to fit the legitimate end pursued by government -- "the court must determine whether the burden or restriction on the freedom is reasonably appropriate and adapted to the relevant purpose".[40] Toohey J commented that "proportionality is concerned, not with absolutes, but with the reasonableness of the balance struck by the legislation".[41]
Another method of establishing that proposed law is proportionate to the legitimate purpose of dealing with racist speech is to argue by analogy with existing law. The statute in Nationwide News, which prevented criticism of the Industrial Relations Commission, was invalidated because it went further than the common law of contempt of court. Justices Deane and Toohey stated that if:
a law prohibiting conduct that has traditionally been seen as criminal (eg conspiring to commit, or inciting or procuring the commission of, a serious crime) will readily be seen not to infringe an implication of freedom of political discussion notwithstanding that its effect may be to prohibit a class of communications regardless of whether they do or do not relate to political matters.[42]
Similarly, Brennan J43 considered censorship in wartime, the law of treason and the law of sedition to be examples of laws using means appropriate to achieving a legitimate purpose. Laws regulating speech can only be upheld when they are the "least restrictive means" to bring about the compelling interest justifying its restriction. Justice Gaudron stated in Cunliffe that even if there were strong grounds for promoting legislation interfering with freedom of speech, the law would be invalid if the public interest could be served by less drastic measures.[44]
With the retirement of Chief Justice Mason and Justice Deane and the appointment of Justices Gummow and Kirby to the Bench, there was much speculation as to which direction the court would take on freedom of political communication. Hence the pressure to reconsider the decisions of Theophanus and Stephens. In Lange v Australian Broadcasting Corporation[45] and Levy v State of Victoria[46] the High Court in a unanimous judgment endorsed the constitutional protection of freedom of political communication, but stressed that this freedom is not absolute. Both as a matter of principle and a matter of application these cases represent a step back from the strong protection of freedom of political speech offered in the earlier "free speech" cases.
The case arose out of a defamation action brought in the Supreme Court of New South Wales by Mr David Lange, a former Prime Minister of New Zealand, against the Australian Broadcasting Corporation for matters published when Lange was a member of the New Zealand Parliament. In a unanimous judgment, the court endorsed the principle of freedom of communication on matters of government and politics as "an indispensable incident of the system of representative government created by the Commonwealth Constitution."[47] The court emphasised that this freedom does not constitute a personal right in the conventional sense of human rights. Sections 7 and 24 of the Constitution, on which the freedom is based, merely prevent legislative or executive power impeding upon this freedom. The freedom "is limited to what is necessary for the effective operation of the system of representative and responsible government provided for in the Constitution."[48]
The court proposed a test for the infringement of freedom of communication which may end the uncertainty as to how to determine the acceptable limits of the freedom. The court stated that the law will be invalid if first it "effectively burdens the freedom of communication about government or political matters either in its terms, operation or effect; and ... [secondly] is not reasonably appropriate and adapted to serve a legitimate end."[49] While this two prong test is not explicitly outlined in the terms of a proportionality test, the critical factors are in effect the same. The court will be called upon to balance the competing claims and determine whether the impact on freedom of communication is disproportionate to the other interest/s served by the legislation. The court had no difficulty applying the test of free speech to the facts of Lange, for the earlier cases had already established that the common law of defamation was not "reasonable appropriate and adapted to serve a legitimate end", and so Lange could not succeed in his action for defamation.
The court did, however, was asked to reconsidered at least some aspects of the decisions in Theophanus and Stephens. The court found that as these cases did not contain binding constitutional principle, their impact on the law of defamation could be reviewed. The court disagreed with the defamation defence in Theophanus and Stephens being grounded in the Constitution. The court emphasised that like any statute, the common law must come within the boundaries of the Constitution. The law of defamation, whether it is found in the common law or in statute, must comply with the Constitution, so there must be a defence within the law of defamation itself to protect freedom of political communication. The significance of this departure from Theophanous is the form and context in which the freedom is protected. At common law, this defence is prima facie defined as a personal right of the person defamed against the publisher of the material. Under the Constitution, however, the defence is defined in terms of an area of immunity which cannot be infringed by a federal or state law, as the freedom limits legislative power.[50]
Levy v State of Victoria[51] is essentially an application of the principles outlined in Lange. The case concerned a protester who wanted to bring to the public attention the unnecessary slaughter of ducks which took place during duck shooting season. Levy argued that the regulation prohibiting anyone without a duck shooting license from entering the hunting area on the first two days of the season was unconstitutional as it interfered with the implied constitutional right to freedom of political communication. All members of the High Court agreed that the purpose of the regulation was to protect members of the public, including protesters, from harm. However, the safety regulations in force during the remainder of the duck-shooting season were less stringent, and allowed circumscribed entry to the duck shooting areas. Most members of the court admitted that the only justification for the different regulation on the first two days of the season was to prevent political protest. Nevertheless, the court adopted the two prong test in Lange and found that the regulation was reasonably appropriate to protect the safety of persons in hunting areas.[52]
A preliminary question that had not arisen in the earlier cases did not cause much concern in Levy's case. In what could be seen as an important extension of the freedom of political communication, the Court recognised that the freedom of political communication and debate is not only concerned with written and verbal communication but also with actions. Accordingly, Levy's actions in protesting at the hunting area were sufficient to constitute political communication.[53] Similarly, the court had no difficulty in accepting that the regulation did effectively burden communication "about government or political matters either in its terms, operation or effect", although this was the subject of much discussion.
Justice Gaudron noted that there are various tests for determining whether a law infringes on the freedom of political communication, but chose to focus on whether the direct purpose of the law was to restrict political communication. She was of the view that such a law is only valid if it is necessary to obtain some overriding public purpose. If it is some other purpose, connected with a subject matter within power and this purpose only incidentally restricts political communication, it is valid if it is reasonably appropriate and adapted to that other purpose.[54] Justice Kirby discussed the tests in determining the appropriate limits on this freedom. In particular he defended the proportionality test as a process of reasoning, and looked at the concept of a margin of appreciation.[55] Justice McHugh stressed that the freedom to political communication in the Constitution does not confer a personal right on individuals. He strongly argued that the freedom protected by the Constitution is not a freedom to communicate. Rather, it is a freedom from laws that effectively prevent communication about political and government matters relevant to the system of representative and responsible government provided for in the Constitution.[56]
The test developed in these cases was relatively unproblematic in Lange, as the standard of protection afforded those subjected to actions for defamation was resolved in Theophanous and Stephens. However, when we compare the outcome of the decision in Levy to that which we would have expected using the earlier developed tests, it becomes clear that the standard of protection afforded has been significantly lowered. In the test concerned with the nature of the restriction placed on freedom of political communication, if the restriction on freedom of political communication was a restriction on the content of the communication, then the threshold for allowing such a restriction was very high; if the restriction imposed by the law was simply a matter of the form of the political communication, then it was permissible to interfere with the speech. The question in Levy's case would then be one of fact -- is the law about the content or the form of the communication? It was clearly directed at preventing political protest, and this would appear to be just the sort of situation for which Mason CJ commented that it would be "extremely difficult to justify restrictions imposed on free communication which operate by reference to the character of the ideas or information". In this situation "paramount weight should be given to the public interest in freedom of communication", such that "in the area of public affairs and political discussion, restrictions of the relevant kind will ordinarily amount to an unacceptable form of political censorship".[57] Of course it could be argued, as Kirby J implies in his analysis of the situation, that the regulation actually only imposed a limitation on the form of the political protest -- anti-duck shooters could use old graphic footage of the carnage, and could find another mechanism to direct action to draw media attention to their cause. It is submitted, however, that the law went much further than regulating the form of the political message.
Where, in the previous cases, a proportionality or balancing test had been adopted, there was a clear weighting in favour of freedom of speech or communication. For a restriction on freedom of political communication to be upheld, it was necessary not only to show that there was a competing and legitimate interest which the legislation served. It was necessary to show that that restriction was "overwhelming" and "compelling", and not more than the minimum interference with the communication. According to Lange and Levy, it is sufficient justification of an infringement of freedom of speech that it serve a "legitimate end" and that the law is "reasonably appropriate and adapted" to that end. No one would disagree that public safety is a legitimate end to be served by legislation. However, we can ask whether a total prohibition to a controversial area is "reasonably appropriate and adapted" to public safety when it is clearly directed not at safety but at political protest. Even if there was a (paternalistic) fear for the safety of the protesters, there is significant doubt whether that could have been "overwhelming" or "compelling". Afterall, the regulation could have limited the actions of the duck-shooters over those two days rather than the political speech of the protesters. There can be no doubt that serving a legitimate end in an appropriate and reasonable manner is a much lower requirement than promoting a competing public interest because its need for promotion is significant and the importance of the interest is overwhelming.
Freedom of speech has never been an absolute value in the Australian political and legal landscape. Laws dealing with defamation, blasphemy, copyright, obscenity, incitement, use of insulting words, official secrecy, contempt of court and of parliament, censorship, sedition and consumer protection legislation place limits on speech. These laws suggest that there are countervailing interests that might take precedence over freedom of speech in some circumstances. Our current law reflects the belief that the need for social cohesion and the need to maintain public order requires limitations on freedom of speech where it may lead to a breach of the peace. It accepts that words can seriously injure individuals and their economic and social well-being through the law of defamation. Words are also prohibited where they cause or threaten to cause serious harm, such as personal injury, property loss and damage to an important institution. The criminal law recognises that it is a crime to counsel another to commit a crime, to commit perjury or to be in contempt of court. These widely accepted curbs on free speech still allow a great measure of freedom. There is one consistent thread running through all the Australian cases concerned with freedom of speech. The only time where free speech has been promoted is where the speaker is attacking an unpopular cause;[58] the times where there has been a resounding rejection of the idea of free speech have been where the speaker has promoted an unpopular cause.[59]
Nonetheless, the High Court has come a long way in recognising the freedom of political communication in the Constitution. No longer is this freedom "overlooked" when the court considers cases in various areas of law such as defamation, sedition and even immigration in which central issue of the action is ultimately concerned with freedom of expression. The court has also recognised that this freedom is not absolute, but that it must be balanced against other public interests. Irrespective of the terms the test is couched in, proportionality is in effect the underlying principle in determining whether a law infringing this freedom is acceptable. Fortunately or unfortunately, this allows a balancing of the rights of the individual against the amorphous "public interest". The right to freedom of political speech or communication in the Australian context is not a trump card, not even for critics of government or other political protesters. While this may result in there being space for the regulation of speech which has the potential to undermine Australian democracy, such as racial vilification, it also must lead us to conclude that the constitutional protection of freedom of speech and communication will only be as strong as the ideological persuasion of the High Court.
Despite the absence of an explicit freedom of expression in our Constitution, and despite the expectation that a differently composed Bench would take another view of implied rights, the acceptance and need for freedom of speech in a democratic society is now entrenched. This brings our law in line with democracies that protect a personal freedom of expression in their Constitutions -- in practice the High Court's position closely resembles the freedoms protected in human rights legislation in various jurisdictions such as Canada and Europe. Similar tests of proportionality and whether a law is burdensome or reasonably appropriate and adapted to a legitimate end, have been adopted under the limitation clauses in the Canadian Charter and the European Convention. In these jurisdictions the analysis begins with a presumption of a right to freedom of speech, and takes impositions on freedom of speech most seriously. By looking to the jurisprudence of those courts, the High Court has the potential to diffuse the otherwise political decision about what sorts of infringements on free speech are legitimate. By looking to the jurisprudence of Canada and Europe, the High Court may be able to find analogous cases to those presented to it, and may offer a certainty both to government and citizens as to the legitimate limitations on freedom of speech. In this way, the new weaker protection of freedom of speech could amount to a stronger protection of the rights of all Australians.
[1] Senior Lecturer, Faculty of Law, University of NSW. The invaluable assistance of Joachim Delaney in the preparation of this paper is gratefully acknowledged. The research reported here was undertaken with the support of the 1997 Australian Research Council Small Grants Scheme.
[2] Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 and Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106.
[3]Meiklejohn, A.
[4] See for example David Tucker, "Representation-Reinforcing Review: Arguments about political advertising in Australia and the United States" (1994) 16 Sydney Law Review 247.
[5] See for example Jones M "Empowering victims of racial hatred by Outlawing Spirit murder" (1994) 1 Australian Journal of Human Rights 229; Akmeenmana S & Jones M "Fighting racial hatred" in Race Relations Commissioner (ed) The Racial Discrimination Act: A Review (AGPS Canberra 1996).
[6] Jones ibid.
[7] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 145 ALR 96 and Levy v State of Victoria [1997] HCA 31; (1997) 146 ALR 248.
[8] See generally Gaze E & Jones M Law Liberty & Australian Democracy (Law Book Co 1990).
[9] Australian Communist Party v Commonwealth [1951] HCA 5; (1950-1951) 83 CLR 1.
11 R v Carter; ex parte Kisch [1934] HCA 50; (1934) 52 CLR 221.
[12] The King v Wilson; ex parte Kisch (1934) 53 CLR 234.
[13] This, too, gave rise to another episode involving interference with freedom of speech. One media commentator, of Scottish Gaelic descent, was outraged at the High Court's decision and said so in no uncertain terms. The result was the laying of the charge of scandalising the court. See R v Dunbabin [1935] HCA 34; (1935) 53 CLR 434. See also R v Fletcher; Ex parte Kisch [1935] HCA 1; (1935) 52 CLR 248.
[14] Salemi v MacKellar (No. 2) (1977) 137 CLR 396. Nearly 10 years later the same section of the Migration Act was interpreted to require a hearing: see Kioa v West [1985] HCA 81; (1985) 159 CLR 550 .
[15] Salemi v MacKellar (No. 2) supra. Nearly ten years later the same section of the Migration Act was interpreted to require a hearing: see Kioa v West supra.
[16] The offence of seditious libel has had an inglorious history in English common law. It has been used ruthlessly by UK authorities in every period of political turmoil (notably 1680-1710, 1792-1845 and 1914-1919) since the time of the Court of the Star Chamber, when it was applied in a desperate attempt to save the absolute monarchy: See Head M (1979) "Sedition -- is the Star Chamber dead?" 3 Criminal Law Journal 89.
[17] R v Burns (1886) 16 Cox CC 355.
[18] Burns v Ransley [1949] HCA 45; (1949) 79 CLR 101.
[19] R v Sharkey [1949] HCA 46; (1949) 79 CLR 121 .
[20] Ibid.
[21] [1992] HCA 46; (1992) 177 CLR 1.
[22] [1992] HCA 45; (1992) 177 CLR 106.
[23] Nationwide News, supra above fn 98, at 48-49.
[24] Mason CJ ACTV at 597-98. Justice McHugh expressed a similar view.
[25] Ibid, at 597.
[26] Ibid, at 598.
[27] Ibid, see also the judgment of McHugh, J at 669-70.
[28] Australian Capital Television, supra,, per Mason CJ at 598; per Brennan J at 603; and per McHugh J at 670.
[29] Australian Capital Television Pty Ltd v The Commonwealth (No. 2) [1992] HCA 45; (1992) 108 ALR 577, at 656.
[30] Some of the members of the Bench adopted a narrow conception of the implied guarantee. Dawson J stated that the Constitution simply guarantees a minimal requirement of representative government which does not extend to freedom of speech or freedom of communication: in Theophanous v The Herald & Weekly Times Ltd [1994] HCA 46; (1995) 182 CLR 104, at 191; McHugh J adopted a similar position, arguing that representative government is not part of the Constitution independent of the text, and it is wrong to invalidate laws on the basis of a constitutional immunity: Theophanous, at 195. Brennan J accepted the constitutional implication, but insisteds that as it is not a personal right its scope is limited: Theophanous, at 149. The retirement from the bench of Mason CJ and Deane J, and the appointment of Gummow J and Kirby J to the High Court, and the nature of the appointment to fill the vacancy on the court may be of significance here.
[31] Australian Capital Television (1992) supra.
[32] In Theophanous v The Herald & Weekly Times Ltd supra, a federal Member of Parliament sued for defamation in relation to comments concerning his actions as a Member of Parliament. The majority of the court, Mason CJ, Toohey and Gaudron JJ, and Deane J, held that the implied constitutional implication of freedom of communication prevented defamation laws from applying to Commonwealth politicians. Brennan J, Dawson J and McHugh J, in dissent, argued that the constitutional implication did not provide personal rights and could not invalidate common law.
[33] In Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1995) 182 CLR 211, an action for defamation had been brought by members of the Western Australian Legislative Assembly. A series of statements about their suitability for office were made in the context of a State election. The majority of the High Court (Mason CJ, Toohey, Gaudron and Deane JJ), held that the constitutional guarantee applied to State political activity in addition to Commonwealth political speech. This was found both as a matter of logic and as a matter of
construction of the Commonwealth and Western Australian Constitutions. Brennan, Dawson and McHugh JJ argued were in dissent, arguing that the doctrine could not be extended to catch this type of speech.
[34] In Cunliffe v The Commonwealth of Australia[1994] HCA 44; , (1995) 182 CLR 272, Toohey J joined Brennan, Dawson, and McHugh JJ in rejecting the extension of the implied constitutional guarantee of freedom of political communication. The case involved a challenge to Part 2A Migration Act 1958 (Cth) which introduced the registration of migration agents and limited the right of a nonregistered persons to give advice to would-be migrants. Members of the legal profession argued that this interfered with their freedom of speech, their freedom to communicate words of advice to clients. While the majority did not find the Constitutional guarantee to be breached, Mason CJ, Deane and Gaudron JJ, in dissent, concluded that the legislation was invalid.
[35] Theophanous supra per Mason CJ, Toohey and Gaudron JJ at 126 and per Brennan J at 146-147; Cunliffe supra per Mason CJ at 299, ; Cunliffe per Dawson J at 363; Cunliffe and per Toohey J at 379.; Theophanous per Brennan J at 146-147.
[36] Cunliffe supra per Gaudron J at 388. Deane J at 339-340 characterises this as a law which is "necessary" in the sense of their addressing an existing and pressing social need. Cunliffe at 339-340.
[37] Cunliffe supra per Deane J at 339.
[38] See Theophanus supra per Mason CJ, Toohey and Gaudron JJ in Theophanus at 122-3; Cunliffe supra per Mason CJ in Cunliffe at 229-300 ;and per Gaudron J in Cunliffe at 388-9: It will not be justified "unless it can clearly be seen to be serving some overriding and important public interest". Cunliffe per Gaudron J at 388.
[39] Cunliffe supra per Deane J at 339.
[40] Cunliffe supra per Mason CJ at 300.
[41] Cunliffe supra per Toohey J at 384.
[42] Nationwide News supra per Deane and Toohey JJ at 76.
[43] Theophanous supra at 149.
[44] Cunliffe supra per Gaudron J at 388.
[45] [1997] HCA 25; (1997) 145 ALR 96.
[46] [1997] HCA 31; (1997) 146 ALR 248
[47] Ibid at 96.
[48] Ibid at 107-8.
[49] Ibid at 112.
[50] Ibid at 111.
[51] [1997] HCA 31; (1997) 146 ALR 248.
[52] Ibid at 248.
[53] Ibid per Brennan CJ at 251, per Toohey and Gummow JJ at 267, per McHugh J at 274 and per Kirby J at 286.
[54] Ibid at 271.
[55] Ibid at 292.
[56] Ibid at 271.
[57] See fn 24 supra.
[58] More often than not the free speech cases have protected attacks on the industrial system or on politicians. The only exception to this could be ACTV, but there again Labor Party moves to promote fairness in the electoral process were not popular with any group which would be advantaged by unfairness. This is not to say that we support the legislation which was struck down, but rather that the attempted legislation was a little too radical, and was seen as an attack on established means of electioneering.
[59] Communists and animal liberationists have suffered in this regard.
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