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William G Buss[*]
Sometime after 1992, I first learned that the High Court of Australia had discovered that the Australian Constitution contained something that sounded very much like a freedom of speech guarantee. And the reasoning that supported that discovery sounded like the philosophy of Alexander Meiklejohn which I had been teaching in a seminar on Free Speech for several years.
Although Meiklejohn was talking about the United States Constitution, he was not emphasising the words of the First Amendment thereto. Drawing upon pre-Bill of Rights commitments recorded in various historical documents, Meiklejohn's view was that the framers of the United States Constitution had made a covenant with each other to build a democracy in which the people were both the governors and the governed. Freedom of speech, according to Meiklejohn, was necessary to make a democracy, and that was all that freedom of speech was designed to do. It was imperative that the citizens of a democracy be in the position to state their views about government policy, to hear the views of others, and to communicate those views to their elected representatives who, in turn, were accountable to the people at the next election and obligated to justify their actions. Democracy could not work without freedom of speech, and the purpose of exercising that freedom was to do the business of governing. Democracy meant self-government; self-government created the need for freedom of speech; freedom of speech was necessary to serve democracy.[1]
Students often asked: 'If Meiklejohn is correct, why do we need a First Amendment?' Why indeed?
When the High Court of Australia announced, in Australia Capital Television Pty Ltd v The Commonwealth (No 2),[2] that there was a freedom of expression protection embedded in the Australian Constitution, the Court's rationale seemed to echo Meiklejohn's philosophy. In view of the fact that the Australian Constitution expressly provides for the election of Representatives[3] and Senators[4] by the people of Australia, and for a constitutional amendment process that requires a vote of the people,[5] Mason CJ said the Australian Constitution creates a system of 'representative government' and 'representative democracy' under which 'the representatives of necessity are accountable to the people' and that made 'freedom of communication … an indispensable element in representative government'.[6] All of which shows, as my students suggested, that it can be done without anything like the express language of the First Amendment to the United States Constitution.
That says nothing about whether it should have been done,[7] and it leaves the big question about where it will go. What is now generally called an 'implied freedom of political communication' has evolved in its short life to date. Whether in the long run Australia will have a robust free speech principle consistent with the political philosophy of Alexander Meiklejohn remains to be seen. For the reasons developed in this article, my conclusion is that it will. Of course, this is only a prediction from an outsider to Australia's constitutional system, with all of the risks and limitations which that inevitably entails. And my conclusion includes no assumption that the details of the application of such a principle would or should follow closely the details of Meiklejohn's philosophy or the jurisprudence of American constitutional law.
On the way to my conclusion, in Part I, I will review briefly the historical Australian-American constitutional connection and provide a brief overview of Australia's implied freedom. In Part II, I will examine closely the High Court's discussion in Lange v Australian Broadcasting Corporation,[8] in which the Court compares Australian and American free speech law and contrasts the treatment of federalism and the common law under the Australian and United States Constitutions. Finally, I will argue in Part III that there is a path, starting with the words of Sir Owen Dixon, and running through federalism and parliamentary sovereignty, to a surprising common law convergence of American and Australian constitutional law dealing with freedom of political expression.
Sir Owen Dixon famously said that '[t]he framers of our own federal Commonwealth Constitution' were so fascinated by the 'incomparable model' of the United States Constitution that '[i]ts contemplation damped the smouldering fires of their originality.'[9] The records of the Australasian Federal Convention[10] reveal that the invocation of American constitutional experience was a daily occurrence in the Conventions held at the end of the Nineteenth Century.[11] The Convention records indicate that at least some of the men[12] who framed the Australian Constitution had wide knowledge of the United States Constitution and its interpretation by the United States Supreme Court.[13] The American influence followed the Australian Constitution into the courts,[14]
although American constitutional law soon proved to be a contrast and foil as well as a model and precedent.[15]
The model that the Australian framers kept before them, according to Sir Owen Dixon, was 'the American Constitution of 1787'[16]
— that is, the United States Constitution without the Bill of Rights containing the First Amendment.[17] Discussion of American cases in the groundbreaking Nationwide News and ACTV cases[18] was not prompted by the historical influence of the United States Constitution. Citation of American authority occurred as part of a pattern of citing relevant foreign cases from many jurisdictions and stems from the fact that American freedom of expression jurisprudence occupies a position that is paramount in longevity and extensiveness. Similarly, when the implied freedom principle was applied to defamation issues, it was natural to cite American cases because The New York Times Co v Sullivan[19] was at the heart of extensive reconsideration of defamation law in many jurisdictions.[20] But when the implied freedom of political communication became firmly established in Australian constitutional law in Lange,[21] there is no easy explanation for the extraordinary place given to American constitutional law in the High Court's unanimous decision.[22]
Before turning directly to an attempt to unravel the High Court's use of American constitutional law in Lange, it is important to summarise the law solidified by the Lange judgment. The two original implied freedom cases did not command the full approval of all seven Justices,[23] and the decisions applying or not applying the implied freedom principle in subsequent cases were made by a divided Court.[24] In 1997, the High Court expressly undertook to reconsider Theophanous v Herald & Weekly Times Ltd[25] and Stephens v West Australian Newspapers Ltd,[26] both divided (4-3) decisions.[27] It was widely anticipated that the Court might reverse or significantly limit its freedom of communication jurisprudence. Although the treatment of a collision between the common law and the Australian Constitution was reconceptualised in Lange, the High Court unanimously reaffirmed the principle of the earlier cases. A law review comment entitled, 'It's A Miracle!'[28] was evidently referring to the fact that the Lange case not only reaffirmed the challenged constitutional freedom but did so unanimously in a single judgment joined by all seven Justices. Specifically, the unanimous Court clarified the rationale, scope, and controlling test applicable to the implied freedom.
1 Rationale. The initial explanation of the implied communication principle seemed to have been based both on quite specific language of the Constitution[29] and on the nature of the Australian constitutional system as a 'representative democracy'.[30] In Theopanous and Stephens, however, any reliance on this broad characterisation was sharply criticised[31] and, in Lange, it was rejected.[32] The Lange Court said 'the Constitution gives effect to the institution of "representative government" only to the extent that the text and structure of the Constitution establish it.'[33] Professor Leslie Zines has expressed his doubts about the significance for the future of the freedom of political communication of this text-and-structure limitation.[34]
2 Scope. Chief Justice Mason's judgment in ACTV spoke of 'freedom of communication, at least in relation to public affairs and political discussion' and he queried whether such 'discussion is substantially different from an unlimited freedom of communication.'[35] Despite these whisps of a broader free speech protection, the High Court has been united since 1992 in regarding the newly recognised speech protection as applicable only to 'political' communication, in this respect true to its Meiklejohnian kinship.[36] Within that political limitation, the implied freedom was given a broad scope in the Lange decision.[37] The freedom encompasses relevant information concerning the functioning of government and about the policies of political parties and candidates; communications between electors and the elected representatives, between the electors and candidates for election, between the electors themselves; communications concerning the conduct of executive branch officials, including ministers, the public service, statutory authorities and utilities.[38] Although national democratic elections provide the basis for the implication, the protection of relevant communications is not confined to the election period.[39] There remains some uncertainty about the applicability of the implied freedom to communications related to political matters below[40] or beyond[41] the national level.
3 The Test. Even within the limits of political communication, the implied freedom of political communication has never been an absolute.[42] Despite variations articulated by various Justices both before and after Lange,[43] the test laid down by the unanimous Lange Court has been consistently accepted as setting the limits of the implied freedom.[44] The Lange test contains an end (or object) dimension and a means (or fit) dimension.[45] To satisfy the test, the means (or fit) dimension must be reasonably appropriate and adapted[46] to achieving the legitimate object (or end). The object (or end) part of the test was stated as follows:
The object of the law [which is claimed to violate the implied freedom of political communication] is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government [or the procedure by which the people vote on a constitutional amendment].[47]
The verbal formula was revised slightly in Coleman v Power.[48] Actually, the means-and-end two parts are sometimes treated as one element and a further element is added as a kind of preliminary requirement: Does the challenged law 'effectively burden freedom of communication about government or political matters either in its terms, operation or effect.'[49] The answer to the additional question will turn on what the Court, over time, includes within the scope of the constitutionally protected freedom, on how much impairment of the freedom has occurred, and how much impairment will be sufficient to be regarded as an effective 'burden'.
Notwithstanding the unanimous Lange judgment and the subsequent acceptance of this test as controlling, its application has not always commanded agreement on just how tight a fit is required to justify restrictions on political communication to further permissible government objectives. For example, Lange required that a challenged law (limiting the freedom of political communication) 'is' reasonably appropriate and adapted to achieve the state's permissible object; but, in his contemporaneous Levy judgment, Brennan CJ proposed a more deferential standard, requiring only that the challenged law could 'reasonably be considered to be' appropriate and adapted to achieving the object.[50] The deferential standard was eventually rejected in Coleman.[51] In a related but distinct example, the Lange decision illustrated the means part of the test by noting that the majority decision in ACTV had found that 'a law seriously impeding discussion during the course of a federal election was invalid because there were other less drastic means by which the objectives of the law could be achieved.'[52] In Levy, however, Brennan CJ said that Australian courts lacked power to determine that 'some more limited restriction … could suffice to achieve a legitimate purpose.'[53]
Just as the Lange judgment was undertaking to settle the rationale, scope, and test for the judicially developed implied freedom of political communication, it was opening new questions about the meaning and future application of that freedom when the constitutional challenge related to the common law. The new ground being broken came primarily in a kind of essay which the High Court labelled 'The common law and the Constitution'. This jurisprudential essay embedded in the Lange judgment — sort of a play within the play — is at once fascinating and baffling, though perhaps baffling only to American eyes.
The Court never explicitly explained why it inserted this essay (hereinafter sometimes 'the Essay' or 'the Lange Essay') at just this point in its judgment and what it is intended to accomplish. Read in the context of the entire judgment, however, the purpose is clear. In Theophanous, a three-Justice plurality had said, '[i]f the Constitution … is at variance with a doctrine of the common law, the latter must yield to the former.'[54] In Lange, a unanimous Court said 'the common law rules of defamation must conform to the requirements of the Constitution.'[55] In the Lange Essay, the Court is explaining why it is shifting from the Theophanous approach, under which inconsistent common law 'yields' to the Constitution, to the Lange approach, under which inconsistent common law is 'developed' to bring it into conformance with the Constitution.
The Essay begins with a simple observation that defamed persons must find a legal remedy 'either in the common law or in a statute[56] which confers a right of action.' The Court then adds, it 'cannot be admitted' that a remedy would be available if its exercise infringed the constitutionally protected freedom of political communication. To an American eye, and perhaps to an Australian eye immediately after Theophanous and Stephens, that seems a pretty straightforward proposition: Usually, defamatory speech results in liability against the defamer, but under some circumstances the Constitution protects the defaming speaker. Within that broad principle, it is a matter of working out the contours of the limits resulting from the constitutional protection of some speech, which would otherwise be an actionable defamation. That is what NY Times and, in Australia, Theophanous and Stephens were all about.[57]
But, to the Lange Court, the proposition is not straightforward. An explanation is required. Having asserted that it 'cannot be admitted' that a defamation remedy could be given at the expense of the constitutional freedom, the Court concludes, '[i]t is necessary, therefore, to consider the relationship between the Constitution and the freedom of communication … on the one hand and the common law and statute law … of defamation on the other.'[58]
Beginning this consideration at the beginning, the Court starts with the Parliament at Westminster, the United Kingdom's 'unwritten constitution', and the fact that the 'common law supplies elements of the British constitutional fabric.'[59] The Court draws upon the words of Sir Owen Dixon for this last point and for the proposition that parliamentary sovereignty is not part of some inherent law of nations, but a part of 'the common law of England'.[60]
The Lange Essay then follows this history to Australia to consider the impact on the common law framework of a 'federal system of government embodied in a written and rigid constitution.'[61] Remarkably, however, the Essay is suddenly not talking only about an accommodation of the common law to Australia's written federal constitution, but also to 'that of the United States of America'.[62] The full statement is: 'With the establishment of the Commonwealth of Australia, as with that of the United States of America, it became necessary to accommodate basic common law concepts and techniques to a federal system of government embodied in a written and rigid constitution.'[63]
Having drawn the parallel, the Court then brings out a contrast. 'The outcome [of this accommodation] in Australia differs from that in the United States.'[64] The Essay then summarises in two sentences the difference in the way the two federal systems have incorporated and accommodated the common law:
There is but one common law in Australia which is declared by this Court as the final court of appeal. In contrast to the position in the United States, the common law as it exists throughout the Australian States and Territories is not fragmented into different systems of jurisprudence, possessing different content and subject to different authoritative interpretations.[65]
The Court then states, 'The distinction is important for the present case and may be illustrated as follows.'[66]
What is to be 'illustrated' in the remaining discussion in the Essay is somewhat elusive. Literally, the reference is to 'the distinction', which evidently refers to the differing 'outcomes' produced by the intersection of the common law with the Australian and American federal constitutional systems. In context, the thing to be illustrated in what 'follows' is the importance of the American-Australian differences in explaining the relationship between the common law and the Constitution in Australia. That, more specifically, must mean the insight that comes from analysing the different ways that Australia and the United States have accommodated 'common law concepts and techniques' to a 'written and rigid constitution' which embodies a federal system of government.[67]
Of course, Australian constitutional law has no obligation to explain why it is different from American constitutional law. Nevertheless, the High Court seems to be saying that comparing and contrasting Australian and American constitutional law is an indispensable tool in the Court's explanation of the relationship between the common law and the Constitution in Australia; or, at the very least, that knowing that the United States and Australia faced a similar problem and solved it differently should contribute significantly to an understanding of the relationship.[68] Having undertaken to do so in the Essay which 'follows', the reasons explaining why the Australian and United States federal Constitutions have produced different approaches to the relationship between the common law of defamation and the constitutional freedom of expression should be clear and important. It is questionable whether that standard has been met.
In the Essay's discussion of 'The Common Law and the Constitution', it is possible to identify three (different but overlapping) dimensions which the High Court offers to explain why the American fragmented federal system and the Australian unitary federal system require different approaches to resolving the possible conflict between common law defamation and constitutionally protected freedom of political communication: (1) whether the federal judiciary has power to decide the meaning of the common law; (2) whether the source of recovery for injury resulting from constitutional violations is to be found in the common law or the Constitution; and (3) whether the character of the implied constitutional freedom is a limit on government power or a source of a personal right.
The fundamental contrast emphasised in the Essay is between 'one common law in Australia … declared by this Court as the final court of appeal' and the fragmentation of the common law in the United States 'into different systems of jurisprudence, possessing different content and subject to different authoritative interpretations'.[69] This contrast identifies two kinds of fragmentation and two different contrasts. First, there is the fragmentation of the content of the common law in the United States into 50 different laws for 50 different states. Whether based on the common law of defamation or statutory enactments codifying and modifying that law, each of the American states has its own law of defamation. That does not mean, inevitably, 50 different legal rules on every conceivable aspect of defamation law. On the contrary, there is a great deal of similarity of the law from one state to the next;[70] but each state law is separate and autonomous. There is no general federal common law,[71] and therefore no federal common law of defamation.
The second kind of fragmentation in American common law concerns judicial power — what the Lange Essay means by being 'subject to different authoritative interpretations'. In the United States, federal courts at all levels have ultimate authority to decide the meaning only of federal law; they have no judicial power to provide the authoritative interpretation of state defamation law or any other state law.[72] That applies to the Supreme Court of the United States as well. So, in short, in the United States, the Supreme Court has no general common law jurisdiction,[73] and so no jurisdiction over the common law of defamation; at the same time, the Supreme Court has no jurisdiction to determine the meaning of state law of any kind, and so no jurisdiction whatsoever over the states' defamation law.
The contrast, in both respects, is clear and large. The Australian High Court is truly a 'high' court for all purposes: As the Essay states, it is 'the final court of appeal' with the last word on the common law, and it also has the last word on every other legal issue — whether based on common law, statute law, or constitutional law; whether a law of the Commonwealth or one of the Australian States. As a consequence of this difference in judicial power, the highest court in Australia has a string to its bow that the highest American court does not have: When a collision between the common law of defamation and the Australian Constitution is threatened, the High Court of Australia can prevent the conflict by its interpretation of the common law, 'which it is the duty of the courts to ascertain as best they may'.[74] The United States Supreme Court can resolve such a conflict only by saying, in effect, 'We accept the fact that the common law in State X means thus and so (because that is what the State X Supreme Court says it means)' and then adding, 'That is unfortunate because the common law so interpreted by the State X Supreme Court is unconstitutional and has to yield to the United States Constitution.'[75]
There is certainly a distinction here: In the United States (and Australia under Theophanous), the common law and the Constitution are not brought into harmony. The Constitution requires a certain level of protection of free speech, but the common law defences to a defamation action may require less free speech protection. When that happens in the United States, the common law, like any other law, is unenforceable insofar as it gives an action for damages that violates the United States Constitution. In Australia after Lange, the common law may require more but it may not require something less than the Constitution. That form of disharmony is prevented from occurring by the obligation of the courts to develop the common law to bring it into harmony with the Australian Constitution.[76]
Fundamental as this distinction is,[77] the question remains whether the distinction is 'important' in explaining the abandonment of the Theophanous (and American) approach in favor of the Lange approach. A majority of the High Court in Theophanous did not adopt the American approach because it was American, but because the majority of High Court Justices thought it was a sound approach under the then-evolving Australian constitutional law. Suppose the Lange case had been decided first, squarely based, as it was, on the judicially developed common law deliberately brought into accord with the Constitution. Suppose it was then argued in an American court that the Australian approach should be adopted. The clear answer would be that that is impossible: under American constitutional law, federal courts have no power to shape the common law.
But the situations are not reciprocal. The fact that the Australian courts do have that power to shape the common law does not translate into their lacking the power to create a constitutional defence to what would otherwise be a valid common law action for defamation damages. Indeed, the Lange judgment makes it clear that such a defence would be available if the defamation action were based on a statute which failed to pass the Court's two-part test.[78] Australia's brand of federalism makes it possible to choose the common law approach adopted in Lange, but it does not preclude the approach the High Court had adopted in Theophanous.
The Lange Essay opined that 'it makes little sense in Australia to adopt the United States doctrine so as to identify litigation between private parties over their common law rights and liabilities as involving "State law rights".'[79]
Perhaps the Lange Court was correct to say that it 'makes little sense' for Australia to eschew an option that it has. But to say that 'it makes little sense' to take a particular approach falls short of saying that that approach is not available or that the decision to forego the alternative approach of NY Times and Theophanous is compelled by the difference between American fragmented federalism and Australian unitary federalism. Nor does it appear that there is any difference of substance between the two approaches that would clearly warrant a characterisation of the difference as 'important'. Under either approach, the same result (reconciliation of competing common law reputational interest and constitutional expressive interest) by the same general means (subordinating the common law reputational interest to the constitutional expressive interest under the circumstances) is reached in consideration of the same ingredients ('the common convenience and welfare of society'[80]). Thus, it seems that the distinction is one of form, not substance, and thus it seems questionable whether one can characterise the distinction as an important one.[81]
The High Court might have taken the position that it was simply applying the common law, which of course it was fully empowered to do. And, as long as the common law interpretation adopted by the Court contained a common law defence that covered the constitutionally protected freedom of political communication, the question of a conflict between the law of defamation and the law of the Constitution would never arise. That is an approach that Dr Adrienne Stone has advocated.[82] Its appeal is that it avoids constitutional issues and constitutional decisions, at least initially, an advantage similar to that gained by reading a statute narrowly to avoid premature constitutional decisions.[83]
Dr Stone's preference for a common law alternative is also supported by the incrementalism of the common law and the risk of overly ambitious constitutional results,[84] but that risk would be ameliorated if the High Court follows a common law methodology for constitutional decision making.[85]
At some point, however, the common law — developed entirely independently of the Constitution — might fall short of what the Constitution requires (as the Court understood it did in Theophanous). A decision would then have to be made about the consequences. To say at that point that the Constitution does not apply to the common law would create different results for the same defamation rule in two different States depending on the source of the rule in the common law or a statute. That would be a very unappealing solution. Alternatively, without confronting the question of a common law-constitutional law collision, the Court could always avoid a conflict by manipulating the common law to fit the Constitution but without acknowledging the manipulation — perhaps not even to itself. In these circumstances, the legislature, without judicial guidance, might feel free to modify the common law rule only to find that it had enacted a statute that was unconstitutional under the Lange test.[86]
Perhaps the High Court's qualified way of speaking about the road not taken ('it makes little sense' to adopt the American approach) simply reflects the fact that that road will never be open in view of the approach that Lange adopts. If the courts are always required to make the common law conform to the Constitution, there can never be a situation in which a constitutional defence to a common law action will be needed. But, of course, the reason for closing the alternative route cannot be constructed on the ground that the alternative route has been closed. Lange is taken as having rejected the Theophanous and Stephens (and American) approach.[87]
Nothing in the Essay — nor elsewhere in the Lange judgment — indicates that the Theophanous-Stephens approach was rejected, except the ultimate conclusion that the defence based on the theory of those cases is 'bad in law'.[88] No reason for that rejection is given except the weak and obliquely stated reason that another approach is available.
Plainly, the American and Australian federal constitutional systems have assimilated the antecedent common law differently. That difference demonstrates that Australia can adopt the common law approach of Lange, but it falls short of providing a satisfying explanation for rejecting Theophanous. In fact, the Lange Essay does not rest with that explanation, but goes on to discuss other Australian-American differences. Perhaps the Court's further discussion can supplement and strengthen the first possible explanation or independently explain the rejection of the Theophanous approach. One such possibility is the Essay's discussion of the different sources of remedies for constitutional violations. The Essay stressed this aspect of the Australian-American difference in one short paragraph:[89]
This constitutional classification[90] has also been used in the United States to support the existence of a federal action for damages arising from certain executive action in violation of 'free-standing' constitutional rights, privileges or immunities [citing the Bivens case[91]]. On the other hand, in Australia, recovery of loss arising from conduct in excess of constitutional authority has been dealt with under the rubric of the common law, particularly the law of tort [citing the Mengel case[92]].
At first blush, this paragraph seems very promising. In a judgment, and specifically in an Essay within that judgment, that undertakes to explain the course of Australian constitutional law by highlighting the way it is similar to but different from American constitutional law, this paragraph identifies an apparently stark contrast: On the one hand, 'recovery of loss … under the rubric of the common law' and, on the other hand, under a '"free-standing" constitutional right'. The apparent difference is all the sharper in light of the fact that, in Mengel, the High Court expressly rejected the Australian Constitution as an independent source of a damage action against government officials. Best of all, it would seem, here is a difference on the basis of which Australia comes down on the side of a common law solution, the United States on the side of a constitutional solution.
But the paragraph, at least directly, is not a part of any line of argument that is further developed in Lange. It is almost an aside — a kind of tangential observation about the 'interaction … between the United States Constitution and the State common laws.'[93] Why talk about the source of damage actions at all? Neither the Lange case nor any of its free speech-defamation predecessors, any of the American free speech-defamation cases or, for that matter, any of the High Court's political communication cases involved an action for damages by the party relying on the freedom of political communication against a government or against anyone else. Defamation actions, generally, do not involve claims for damages by defendants who are relying on their freedom to speak. They do often involve what amounts to an 'immunity' from a liability that would otherwise exist because there is some special justification for speaking even though the speech is otherwise defamatory and actionable — precisely what they receive under American law and under Australian law, whether in the form of a constitutional ground for invalidating a statutory defamation action or in the form of a common law defence developed to conform to the Australian Constitution.[94]
Where no other source is available, the United States Supreme Court reasoned in the Bivens case, an action for damages for a constitutional violation by a federal government official can be based on the United States Constitution itself. Bivens concerned a suit against federal agents who knowingly conducted a search in violation of the Fourth Amendment to the United States Constitution.[95] The American Bivens case (like the Australian Mengel case) did not involve any form of freedom of expression. Although a Bivens action based on a violation of the First Amendment by a federal official would be possible, few such actions have ever been brought and none has ever been upheld by the Supreme Court of the United States.[96] In the United States, constitutional violations by state or local officials would be far more common, and actions based on such violations would not be brought under Bivens, but under a federal statute.[97] Such statutory actions are commonly analogised to common law tort actions.[98]
In the Mengel Case, the High Court rejected a claimed constitutional violation, failure to comply with the 'rule of law', as a basis of liability. Mengel relied on James v Commonwealth,[99] which involved an alleged violation of section 92 of the Australian Constitution.[100] The James case held that section 92 does not create a private right of action for damages by individuals injured by State interference with trade and commerce among the States.[101] Distinguishing an earlier case, Dixon J (as he then was) explained that section 92 gives an immunity from an exercise of government power but considered that, as a basis for an action for damages, it 'will do no more than nullify an alleged justification of the government's exercise of a purported power.'[102]
The Justices speaking for the Court in Mengel explained that liability of government and government officials in Australia was available on the same basis as an action between two private persons. Violation of a constitutional provision might be relevant in determining that a government official acted negligently in failing to know the limits of his authority, but it added little or nothing to the basis of a damages action under the general law:
If it were the case that governments and public officers were not liable in negligence, or that they were not subject to the same general principles that apply to individuals, there would be something to be said for extending misfeasance in public office to cover acts which a public officer ought to know are beyond his or her power and which involve a foreseeable risk of harm.[103]
At the end of the day, the magnitude and nature and relevance of the Bivens-Mengel distinction seems doubtful. Indeed, the High Court in Mengel suggested in the language just quoted that Australia might forge a comparable remedy if there were no available common law action.
Finally, putting all these other considerations to one side, the Bivens-Mengel dichotomy does not really speak to the question which the Lange Essay addresses: the different ways that the Australian and American federal systems have accommodated the common law. Whatever relevance Bivens could possibly have cannot be related to any distinction between Australian and American federalism. That point is nicely illustrated by Baigent's Case in New Zealand,[104] a country with no federal system at all. In Baigent, much like Bivens, police officers conducted a search in violation of the New Zealand Bill of Rights Act 1990 (NZ). The New Zealand Court of Appeal drew heavily on Bivens in deciding that an action for damages would lie against police officers who conducted a search that was alleged to be in violation of New Zealand's prohibition of unreasonable searches and seizures.[105]
As Baigent demonstrates, the principle that constitutional violations should not go unremedied (a principle with which the Mengel Court indicated it was sympathetic) is a principle that might be adopted under any constitutional system, federal or unitary. It is also a principle that need not be adopted under any constitutional system. It has been narrowly applied in the United States. Recognising the constitutional freedom of political communication as a defence to a defamation action based on the communication, along the lines of the High Court's judgment in Theophanous, carries no necessary implication whatsoever concerning the creation of an action for damages to remedy a violation of the constitutional freedom.
Perhaps, it is not the American constitutional source of a 'federal action for damages' that deserves attention but, rather, that such actions arise out of '"free-standing" constitutional rights' that provide a riddle-solving distinction. The denial that Australia's freedom of communication entails a 'free-standing' right is a refrain running through Lange and through the dissenting Theophanous judgments of Brennan and McHugh JJ. According to this refrain, the implied freedom of political communication is not (like the American freedom of speech) a 'free standing personal right';[106] but, rather, it is a limitation on legislative authority. Dr Adrienne Stone has extensively analysed and critiqued possible explanations for the insistent disclaimer of the existence of a personal right.[107] Attention must initially focus on the contrast with American freedom of speech, for which the High Court, here, seems to stress the difference between American express freedom and the Australian implied freedom. The Lange judgment says:
Unlike the First Amendment to the United States Constitution, which has been interpreted to confer private rights, our Constitution contains no express right of freedom of communication or expression. Within our legal system, communications are free only to the extent that they are left unburdened by laws that comply with the Constitution.[108]
To see what significance this statement might have for free-standing rights, one must unscramble the contrast being drawn here. First of all, this statement somewhat misleadingly indicates that the United States Constitution 'contains' an 'express right of freedom of communication or expression'. The United States Constitution does contain an 'express' freedom of speech provision, but it contains no express 'right'. What it contains, literally, is a prohibition of action by Congress which would 'abridge' the freedom: 'Congress shall make no law abridging the freedom of speech or of the press.'[109] That is, the relevant language of the United States Constitution contains an express restriction on legislative power,[110]
and that is precisely the way the Lange Essay characterises Australia's implied freedom of political communication: 'the requirement of freedom of communication operates as a restriction on legislative power.'[111]
Secondly, it is true that the American First Amendment 'has been interpreted to confer private rights.' But, as we have just seen, that cannot be explained directly as a consequence of an express constitutional right, since no such express right exists. On the contrary, the interpretation which confers rights is based on an express constitutional freedom restricting legislative power; and that is parallel to the implied Australian freedom restricting legislative power. Of course, there are obvious and strong arguments against implying a freedom of communication from a text which, unlike the United States Constitution, contains no express references to a speech liberty or freedom;[112] but Lange proceeds on the assumption that the implied freedom exists. If an acknowledged freedom can be interpreted as a source of right, there is no good reason why that cannot be true simply because the freedom is implied.
Thirdly, contrasting the operation of the United States Constitution, the Court says 'communications', in Australia, 'are free only to the extent that they are left unburdened by laws that comply with the Constitution.'[113] By necessary implication (despite the misleading 'only'), communications are also free in Australia when they are burdened by laws that do not comply with the Constitution. That is, speech is free in Australia when 'burdened by laws' that violate Australia's constitutional 'restriction on legislative power' under the test laid down in the Lange judgment and subsequently applied in other cases.[114] Both consequences exactly describe the operation of the American First Amendment: Communications within the freedom of speech (and the derivative private right) are free 'to the extent that they are left unburdened by laws that comply with the Constitution' and they are free when they are burdened by laws that do not comply.
Even if a contrast between American personal rights and Australian restrictions on legislative power could be convincingly shown, the significance of the distinction is elusive. In his Theophanous dissent, Brennan J quoted from his ACTV judgment, saying, as to a personal right, 'the scope … must be ascertained in order to discover what is left for legislative regulation.' He contrasted that to a freedom of a kind that was 'an immunity consequent on a limitation of legislative power.'[115]
If the freedom to discuss government were understood to be a personal freedom, it would be open to the Court to define it in qualified or limited terms … But if the freedom to discuss government be the consequence of a limitation on power, the issue … is whether the laws of defamation, in their application to the facts … are valid.[116]
The real difference in this distinction is not easy to see. In either case, the Court must make a determination whether the law would be unconstitutional as applied to particular facts on the basis of the Court's judgment about the effect of the implied freedom on the exercise of an otherwise valid legislative power.
A clue to the Court's concern might be taken from the wide-ranging debate among constitutional scholars concerning the difference between rights characterised as 'vertical' and 'horizontal.'[117] A fundamental right is vertical if it is limited to a right of an individual against the state. A fundamental right is horizontal if it also provides a cause of action on the basis of which a private individual can sue another private individual or entity. In an isolated statement in the Theophanous plurality judgment, Mason CJ and Toohey and Gaudron JJ said, '[t]his approach [of NY Times] does not limit the protection to protection against government conduct.'[118] This might have suggested, misleadingly, that the American and Theophanous approach was committing Australia to the adoption of a horizontal rights theory. Accordingly, the Lange Court's strong opposition to 'personal rights', might be understood to be a rejection of the horizontal rights concept.
In context, however, it was clear that the plurality judgment was merely concurring with the American position in NY Times that judicial enforcement of defamation laws, whether common law or statutory, was action by the 'state'. Under the American 'state action' doctrine, individual rights are protected only against action of the 'state' — ie, the action of federal, state, or local government.[119] This, of course, means free speech rights in the United States are firmly limited to the vertical side of the horizontal-vertical divide. [120]
Thus, the constitutional jurisprudence in both Australia and the United States has opted for the vertical conception of rights and freedoms. Recognising that the freedom of political communication applies directly to the common law does not change that in the United States. The position the High Court had adopted in its Theophanous judgment would not have changed it in Australia. In short, the basis for a contrast between American personal rights and the Australian limitation on legislative power cannot be found in the distinction between vertical and horizontal rights.[121]
None of the several comparisons with American constitutional law in the Lange Essay provides a really satisfactory explanation for the rejection of the Theophanous (and American) approach in favour of the Lange approach — or, more precisely, an explanation that demonstrates the importance of the change of approach. If we return to the genesis of the Lange Essay on the 'common law and the Constitution', it will be recalled that the Essay entailed an undertaking to 'consider the relationship between the Constitution and the freedom of communication which it requires on the one hand and the common law and the statute law which govern the law of defamation on the other.'[122] The High Court placed its consideration in the framework of the evolution from English to Australian constitutional law. In doing so, the High Court pointed out the difference between the treatment of the common law under Australian and American constitutional federalism. Under the American fragmented common law, each state has its own common law and the United States Supreme Court has no jurisdiction to determine what the common law of the states is. As a consequence, as the High Court observed, Australian but not American constitutional law permits the highest court under the national Constitution to develop the common law to bring it into accord with the Constitution. But that distinction did not require a rejection of the American approach adopted in Theophanous, and it did not bring about any real difference in the substance of Australian constitutional law. What the Court's comparison shows to be truly a matter of substance is what the Australian and American constitutional systems shared as they separated from English constitutional law: the supremacy of the written Constitution over all other law. As the Lange Essay makes clear, that constitutional supremacy (for Australia and the United States) applies to all sources of law — state and national; statute and common law.
Significantly, the Lange Essay's consideration of the relationship between the common law and the Australian Constitution turned almost immediately to the relationship between the common law and parliamentary sovereignty and, significantly, it did so in the words of Sir Owen Dixon. Plainly, the High Court was drawing strength into its Essay from Dixon's immense stature.[123] It seems appropriate, therefore, to place the Essay's use of Dixon's words in the broader context of his work through which the Court was considering the common law, federalism, and parliamentary sovereignty. In this way, I will treat the Essay as an invitation to take Dixon's words as a guide to extend the Australian-American comparison concerning political communications. The Lange Essay does not juxtapose parliamentary sovereignty and American constitutional law, but Sir Owen Dixon did so.
1 Sir Owen Dixon on the Common Law and Parliamentary Sovereignty in Australia and the United States. The Lange Essay twice refers to the connection between the common law and parliamentary sovereignty.[124] One of these references, emphasising the common law source of parliamentary sovereignty, also presents a theme that is repeated in Sir Owen Dixon's extrajudicial scholarship: the 'conception of the complete supremacy of Parliament', Sir Owen said,
may be considered as deriving its authority from the common law rather than giving authority to the common law. But, after all, the common law was the common law of England. It was not a law of nations. It developed no general doctrine that all legislatures by their very nature were supreme over the law.[125]
This theme, that parliamentary sovereignty was not a law of nature, but a product of the common law of England, was a critical part of Sir Owen's reasoning as a Justice of the High Court in his very important judgment[126]in the Trethowan Case.[127] The theme was repeated in several Dixon lectures.[128] In a long and complex lecture delivered in 1935, 'The law and the Constitution',[129] Dixon discusses the tension between three conceptions — the supremacy of law, the supremacy of the Crown, and the supremacy of parliament — and their reconciliation in British constitutional theory.[130] He noted the lack of attention 'given to the manner in which the idea of legislative sovereignty has operated to modify the conception of the supremacy of the law.'[131]
Wherever the common law has gone, the theory of the supremacy of the law has necessarily gone with it. But the theory of legislative sovereignty stands in a different position. Its transfer to lands outside Britain was less easy. For the common law, being English law, and not a ius gentium, did not recognize the sovereignty of a legislature as an abstract idea, as a quality belonging to a legislature inherently.[132]
The supremacy 'over the law' was a unique feature of the Parliament at Westminister. Legislatures were created outside England through the authority of the common law.
But at common law such a legislature was not supreme over the law. Its powers were limited by the law. Those limitations might arise from the express terms of the instrument creating it … from [a territorial restriction,] from a legal doctrine, somewhat vague and obscure, that none of its enactments should be repugnant to the basal principles of the common law.[133]
If the legislature attempted to go beyond these limitations, 'its enactment would be simply nugatory and void.'[134]
Sir Owen said that 'the fundamental idea of the supremacy of the law was rooted in the common law.'[135] He observed that 'British parliamentary sovereignty' was 'renounced' by the American constitutional system, which elevated 'the conception of the supremacy of the law.'[136]
It is of the essence of parliamentary sovereignty that the courts of law, once there is put before them an authentic expression of the legislative will, shall give unquestioned effect to it according to what appears its true scope and intent. But it is of the essence of the supremacy of the law that the courts shall disregard as unauthorized and void the acts of any organ of government, whether legislative or administrative, which exceed the limits of the power that organ derives from the law. This was the constitutional position of the thirteen American colonies when they declared their independence. Their revolt was against the supremacy of the British Parliament. The Declaration of Independence, therefore, might be thought to imply the transfer of that supremacy to their own legislatures.[137] But such a view was inconsistent with republican principles which included the doctrine that the ultimate source of governmental power was in the governed.[138]
Despite the fascination and influence of American federalism on the framers of the Australian Constitution, according to Dixon,[139] Australian constitutional law did not follow the United States in rejecting, totally, parliamentary sovereignty.[140] But Dixon argued that federalism itself, entrenched in Australia's rigid constitution, did eventually[141] provide a significant check on parliamentary sovereignty:
[U]ntil lawyers became accustomed to the working of a federal system, the conception of parliamentary supremacy over the law dominated their thoughts. The rival conception of the supremacy of the law over the legislature is the foundation of federalism. Under that system, men quickly depart from the tacit assumption to which a unitary system is apt to lead that an Act of Parliament is from its very nature conclusive. They become accustomed to question the existence of power and to examine the legality of its exercise. Nothing has had so profound an influence upon legal ideas in this country as the establishment of the federal constitution — the greatest event in our political and legal development.[142]
2 Political Communication and Federalism limits on Legislative Power. Justice Dixon (as he then was) supplied a memorable example of the significance of his views on federalism — of just how 'profound an influence' on Australian constitutional law 'the establishment of the federal constitution' can have in protecting individual rights. In his much-cited statement in Australian Communist Party v The Commonwealth,[143] this reasoning was the basis of the High Court’s determination that the Commonwealth Parliament had exceeded its legislative powers in enacting the Communist Party Dissolution Act 1950 (Cth):[144]
The [Commonwealth legislative] power is ancillary or incidental to sustaining and carrying on government. Moreover, it is government under the Constitution and that is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption.
The federalist basis of this reasoning is, of course, a text-and-structure-based reading of a rigid constitution.
The 'profound … influence' of a federal constitution in Australia had prevented the abridgement of political speech before Lange — and before Theophanous, Stephens, ACTV, and Nationwide News. The classic example is Davis v The Commonwealth.[145] In that case, the Court was faced with a statute enacted to facilitate the celebration of Australia's Bicentennial, the 200th anniversary of British ships sailing into Sydney Harbour. As part of this statutory scheme, a Bicentennial Authority was created and given a monopoly over a number of common words, such as 'Australia' or 'Sydney' in conjunction with '1788'. These words could not be used without the Bicentennial Authority's permission, and the Authority withheld permission from certain Aboriginal groups that wanted to raise questions about the unqualified beneficence of the advent of white settlement on the Australian continent. As considered by the Court, the issue was whether the Commonwealth Parliament and the Executive had been granted power under ss 51(xxxix) and 61 of the Commonwealth Constitution to enact this aspect of the legislation. The Court determined that this power did not exist, and there is no doubt that its determination was decisively influenced by the judgment that the legislation undermined the 'fundamental value' of freedom of expression,[146] as Mason CJ later called it in his Nationwide News judgment. Davis, in short, is a federalism decision critically spiced with a free speech flavour.
Under the usual principles of federalism, a challenged statute must be sufficiently related as a means of exercising one of the specified national powers.[147] The courts in Australia (like those in the United States) would ordinarily take a deferential approach to the legislature and answer the question in favour of the power if there was a reasonable (or, perhaps, even plausible) interpretation that would produce that result. In exceptional cases, when special values — like free expression — are adversely affected, deference goes down and the possibility that the existence of Commonwealth legislative power will be found wanting is greatly enhanced — as occurred in the Davis case.[148] In Nationwide News, three concurring Justices based their judgments on the ground of lack of national legislative power. Chief Justice Mason reached that conclusion only by giving significant weight in the balance to the freedom of expression:[149]
[I]n determining whether that requirement of reasonable proportionality is satisfied, it is material to ascertain whether, and to what extent, the law goes beyond what is reasonably necessary or conceivably desirable for the achievement of the legitimate object sought to be attained and, in so doing, causes adverse consequences unrelated to the achievement of that object. In particular, it is material to ascertain whether those adverse consequences result in any infringement of fundamental values traditionally protected by the common law, such as freedom of expression.[150]
Under the Australian — and American — pattern of federalism, however, the States ordinarily have the legislative power not assigned to the national government. The Tenth Amendment of the United States Constitution expressly provides that 'powers not delegated' to the national government are 'reserved to the states'.[151] Australian States do not have reserved power. The legislative power of both the Commonwealth and the States came directly from the Imperial Parliament in London in 1901. Nevertheless, as a practical matter, Australian States do have residual legislative power. As Sir Owen Dixon put it, '[s]ection 107 of the Commonwealth Constitution performs the office of the Tenth Amendment …'.[152]
Under this federal structure, the Court's decision in Davis or the concurring judgments in Nationwide News appear to leave the State Parliaments free to impose legislative restrictions withheld from the Commonwealth Parliament.[153] In Lange, for example, the threat to the freedom of political communication came from a statute of New South Wales, not the Commonwealth. But in the specific context of a federalist limitation geared to an expressive freedom designed to perfect the true choice of voters in national elections, section 107 is not well designed to give State Parliaments power which the Commonwealth Parliament lacks. Section 107 provides, '[e]very power of the Parliament of a Colony which … becomes a State, shall, unless [expressly limited] … continue as at the establishment of the Commonwealth.'[154] Australian States could not 'continue' to have a power which their predecessor Colonies never had. And those Colonies did not have the power to affect adversely free Commonwealth elections because there was no such thing as Commonwealth elections in the Colonies.
Of course, the Australian Colonies had — as their successor States now have — subject matter power to legislate, in general, concerning the law of defamation. But that is not the question. In Davis, by analogy, the High Court did not question the broad power of the Commonwealth to legislate concerning the Centennial celebration; it was only the particular application of that power in its impact on freedom of speech that was ultra vires. Similarly, the concurring Justices in Nationwide News did not question the power of the Commonwealth Parliament to legislate on the subject of industrial relations or for the protection of the Industrial Relations Commission; it was only a particular application of that power that was not within ss 51(xxxv) and 51(xxxix). As a Justice of the High Court, Sir Owen Dixon made a similar distinction concerning a State's residual ('continuing') power. Dixon did not question the general power of the States to legislate concerning the winding up of an insolvent company. But, in dissent in Uther's Case[155] and for the High Court in Cigamatic,[156] he concluded that a State lacked power to subordinate Commonwealth claims to those of other creditors. Section 107 was irrelevant, he said. 'The Colony of New South Wales could not be said at the establishment of the Commonwealth to have any power at all with reference to the Commonwealth.'[157] What is critical is not the correctness of the Cigamatic principle,[158] but only the concept that a State, no less than the Commonwealth, may exceed its acknowledged general legislative power in the context of a particular application.[159]
In sum, starting with the Communist Party and Davis cases, there was an alternative theory for protecting political speech as an internal or intrinsic limitation of legislative power — a limitation, in the words of the Lange Essay, resulting from a 'federal system of government embodied in a written and rigid constitution.'[160] In Sir Owen Dixon's words, '[t]he rival conception of the supremacy of the law over the legislature is the foundation of federalism.'[161] The rationale actually adopted for protecting political speech has been understood to be based on an external or extrinsic limitation coming from outside legislative powers.[162] This actual rationale, too, might be explained, speculatively, in Dixon's words: The Australian judiciary, having 'become accustomed to question the existence of power and to examine the legality of its exercise',[163] applied its ingrained judicial independence beyond its federalist wellspring to find, in a different text and structure of the Australian Constitution, an implied limit on all legislative power (national or State) that would impermissibly interfere with the freedom of political communication.[164]
In fact, the line separating intrinsic and extrinsic limits on legislative power is often very thin.[165] Plainly, simultaneous intrinsic limits on both national and State legislative power look very much like an extrinsic limit. Plainly, too, once one knows that there is an extrinsic limit, it follows that an otherwise available legislative power cannot be validly used in a way that the extrinsic limit prohibits. The Australian (though not the American) Constitution underlines this point by qualifying all heads of national legislative power with the limiting phrase, 'subject to this constitution.'[166] The characterisation of the freedom of political communication as a 'restriction on legislative power'[167] fits either rationale. As the High Court put it, clearly yet ambivalently, in its Lange Essay, '[t]he Constitution displaced, or rendered inapplicable, the English common law doctrine of the general competence and unqualified supremacy of the legislature. It placed upon the federal judicature the responsibility of deciding the limits of the respective powers of State and Commonwealth governments.'[168]
Although the constitutional freedom of political communication is described in the Lange Essay as a 'restriction on legislative power', the Essay's heading concentrates our attention on the relationship between '[t]he common law and the Constitution' and the common law is put in a separate category. So, the shift from Theophanous to Lange might seem to be a shift from the Constitution to the common law and might seem to be a turning away from confronting the limits of 'a federal system of government embodied in a written and rigid constitution'[169] and to relieve the Court of the need, learned from federalism according to Sir Owen Dixon, 'to question the existence of power and to examine the legality of its exercise.'[170]
1 The Common Convenience and Welfare of Society. The common law emphasis may give the Lange judgment the appearance of avoiding the constitutional dimension. But the substance of the judgment is an entirely different matter. In fact, Lange provides a framework for a continuing robust judicial role in protecting political communication. While the Court may have seemed to back off the more assertive position of ACTV, Nationwide News, Theophanous, and Stephens in the way the judgment was presented, Lange laid the groundwork for a continuing judicial development of the governing constitutional principle.[171] The source of this fertile future for the freedom of political communication is revealed by comparing the dissenting Theophanous judgment of Brennan J (as he then was) with the language of the unanimous Court in Lange. The following are excerpts from the former:
The function of this Court … depends on the law under consideration. The role of judicial policy — a court's opinion as to what the law should be as distinct from what the law is or has hitherto been generally thought to be — in determining the content of the law varies according to the category of law under consideration: common law, statutes or the Constitution. … [T]he legitimate role of judicial policy in the exercise of judicial power is limited both by the Constitution's denial of legislative power to Ch III courts and by restrictions which are inherent in the judicial method.
Common law is amenable to development by judicial decision, subject to the Constitution and to statute. What is permissible development of the common law by the courts and what amounts to impermissible change is an issue on which minds differ most sharply.[172]
Justice Brennan then lists several considerations that a court may take into account and concludes:
[I]t is clear that judicial development of the common law is a function different from the judicial interpretation of statutes and of the Constitution. In the development of the common law, judicial policy has a role to perform …; in the interpretation of statutes, judicial policy is alien to the task of exegesis.
In the interpretation of the Constitution, judicial policy has no role to play … [I]n the interpretation of the Constitution judicial policy provides no leeway for judgment as it does when the Court is developing the common law.[173]
The following is a statement in Lange explaining how it was that the English common law of defamation had changed since 1901 when the Commonwealth Constitution took effect:
Since 1901, the common law — now the common law of Australia — has had to be developed in response to changing conditions. The expansion of the franchise, the increase in literacy, the growth of modern political structures operating at both federal and State levels and the modern development in mass communications, especially the electronic media, now demand the striking of a different balance from that which was struck in 1901…
The factors which affect the development of the common law equally affect the scope of the freedom which is constitutionally required. 'T]he common convenience and welfare of society' is the criterion of the protection given to communications by the common law of qualified privilege. Similarly, the content of the freedom to discuss government and political matters must be ascertained according to what is for the common convenience and welfare of society. That requires an examination of changing circumstances and the need to strike a balance in those circumstances between absolute freedom of discussion of government and politics and the reasonable protection of the persons who may be involved, directly or incidentally, in the activities of government or politics.[174]
So, according to the Theophanous dissent, 'judicial policy has a role to perform' in interpreting the common law, but '[i]n interpreting the Constitution, judicial policy has no role to play'.[175] Yet, in Lange, the same factors determine the common law and constitutional law; the 'common convenience and welfare of society' is the criterion which governs both the common law and the Constitution, and both the common law and the Constitution require 'an examination of changing circumstances and the need to strike a balance in those circumstances…'.[176]
According to the Theophanous dissent, the Court lacks the power to 'develop' constitutional law;[177] yet, where the Lange judgment refers to 'the factors which affect the development of the common law', it says that those factors 'equally affect the scope of the freedom which is constitutionally required.'[178] When the same factors determine legal results, any difference between characterising the process in terms of affecting 'development' and affecting 'scope' appears to be trivial.
The Theophanous dissent said that constitutional interpretation by the Court cannot be influenced by what the Court 'perceives to be desirable policy'[179] and in interpreting the Constitution 'judicial policy provides no leeway for judgment as it does when the Court is developing the Common law.'[180] When the factors which the Court listed in Lange — 'expansion of the franchise, the increase in literacy, the growth of modern political structures operating at both federal and State levels and the modern development in mass communications, especially the electronic media'[181] — determine the scope of the implied freedom, that is not a mechanical reading of the constitutional text. They are factors which the Court, in its judgment, concludes are changing circumstances relevant to determining what the constitutional freedom should be understood to mean.
To be sure, the dissent in Theophanous recognised that 'changing conditions' have a 'changing effect.'[182] And, keeping in mind that the Theophanous dissent was a dissent, the contrast may appear to be more of a continuum than a change.[183] Still, the Court in Lange was unanimous and the dissenter in Theophanous was now the Chief Justice and part of that unanimity; no doubt an important part. The judicial function in constitutional interpretation contemplated by Lange and its merging with the judicial function in interpreting the common law counters the possible impression of retrenchment that one might otherwise attribute to the Lange decision's focus on the common law.
2 The Common Law and the Common Law Methodology. If attention is concentrated on the fact that the High Court has judicial power to define and develop the common law, the difference between Australian and American constitutional law is highlighted. That contrast is in the forefront of the Lange judgment. But when attention is focused on the substance of the common law methodology which may guide the constitutional interpretation (and simultaneously control the common law), a very different picture emerges.
Writing about the High Court's constitutional work in the '2002 Term', Justice Susan Kenny[184] concluded that 'the common law constitutional method took priority over other interpretive approaches.'[185] Citing the work of American scholars,[186] Kenny J described this approach (which she also calls 'doctrinal') as depending 'on the claim that principles may be derived from the Court's previous authorities relevant to the resolution of the constitutional question at hand.'[187]
According to Kenny J, the virtues of the common law approach to constitutional law 'are largely the virtues of the common law. In interpreting the constitutional text by reference to prior authorities, the Court promotes the values of continuity, stability, and predictability.'[188] At the same time, Kenny J points out, 'the common law constitutional method' does not 'necessarily promote rigidity, or an unimaginative application of the decisions of the past to the questions of the present … [T]he method permits the evolution of constitutional principle, although on a gradual or incremental basis …'.[189]
One of the cases specifically relied upon by Kenny J to elaborate this method was Roberts v Bass,[190] in which various members of the Court applied Lange to resolve the question whether, under the facts and in the procedural setting of Roberts v Bass, the freedom of political communication required the common law of defamation to provide the 'extended form of qualified privilege' adopted in Lange.[191] The Justices were clearly focused on the constitutional question, and they were clearly applying a common law methodology. For example, the joint judgment of Gaudron, McHugh and Gummow JJ, explores what the common law qualified privilege entailed,[192] points out that Lange did not exhaust 'the constitutional freedom's impact on the law of defamation,'[193] and describes in detail why the relevant 'circumstances'[194] required that the common law be developed to avoid unconstitutional chilling of political speech under Lange's governing test.[195]
Prior to Roberts v Bass, the common law methodology had been applied by the High Court in Levy,[196] and by Kirby J's dissenting judgment in Lenah Game Meats,[197] decided in 2001 between Lange and Roberts v Bass.[198] In Levy, the Court rejected the freedom of political communication argument, but it had no difficulty applying its precedents to a novel setting (in Australian constitutional law) to recognise that symbolic expression was an important means of communicating political ideas and that the concern about the treatment of animals was an important political issue. In Lenah Game Meats (also involving animal welfare), in connection with a novel and rejected invasion of privacy claim, Kirby J argued that there was a prima facie privacy claim that would support the issuance of an interlocutory injunction, but concluded after a thorough consideration of the competing interests that the freedom of political communication foreclosed enjoining the broadcast of confidential information.[199] Subsequent to the 2002 Roberts v Bass case, in Coleman v Power,[200] the communication claiming constitutional protection was insulting language addressed to an arresting police officer. Influenced by English, American, New Zealand, and Australian case law, a divided High Court, in six separate judgments, assessed the scope of the protected freedom and the applicability of the Lange test.[201] Decided in the same year as Coleman, Mulholland v Australian Electoral Commission,[202] in rejecting the political communication argument, used a common law methodology in comparing and distinguishing prior cases involving the freedom of political communication.[203]
The common law methodology is evolutionary, and the details of what is covered and what is protected are worked out only over a long period of time. As the Court said in Lange, 'the content of the freedom to discuss government and political matters … requires an examination of changing circumstances and the need to strike a balance in those circumstances between absolute freedom of discussion of government and politics and the reasonable protection' of those who are affected by the discussion.[204] And as new problems arise, the existing doctrine must be brought to bear on the problem at hand. Speaking of the constitutional defence to a defamation action in Roberts v Bass, Callinan J said, '[i]t will take years, years of uncertainty and diverse opinion for the Court to reach a settled view of the elements of the defence and the way in which it is to be applied. Lange certainly does not exhaustively define its impact on the law of defamation.'[205] Certainly, Lange does not exhaustively define its impact, as Callinan J observed, and the timeline he described may actually be too short. In its nature, the common law methodology is evolutionary and endless.
3 Common Law, Text and Structure, and Alexander Meiklejohn. As the preceding discussion of cases indicates, Kenny J's recognition of the importance of the common law methodology in a particular year of High Court decisions does not suggest that that methodology was limited to that year. Plainly, for both Australian and American constitutional law, that has been one of the models for explaining what the courts do and should do in deciding constitutional issues.[206] Moreover, it is clear from Kenny J's analysis that the common law constitutional methodology is in no way inconsistent with the Lange Court's emphasis on 'text and structure.'[207] On the contrary, the common law methodology describes a means of interpreting the constitutional text and structure.[208] Indeed, once it is clear that the common law must accord with the Constitution and that constitutional interpretation may follow a common law methodology, Lange's limitation to 'text and structure' loses its surface appearance of being narrow and restrictive.
The primary text to be applied, as spelled out in Lange, is found in sections 7, 24, and 128 of the Constitution, giving the people the right to vote for Senators, Representatives, and constitutional amendments. These provisions, in turn, are supplemented by the many other textual provisions, also listed in the Lange judgment,[209] which are all woven together into a structure which creates the system of representative and responsible government providing the foundation for the freedom of political communication.[210] The Court said pointedly in Lange, 'the relevant 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?"'.[211] But the ultimate question remains: In what respects and to what extent do the text and structure protect representative government by protecting the freedom to communicate concerning political matters? The answer will not be found in a dictionary but through the exercise of judicial judgment.[212]
It is commonplace that freedom of expression owes its lofty position in many different constitutional systems to the important values and interests it furthers, both as a means of producing benefit to society and as an end in itself for individual human beings. In addition to the interest in furthering democratic government, extensive protection of free speech is justified on the ground that it is an instrumental means of discovering truth and that it furthers the intrinsic values of self-realisation and individual autonomy.[213] The absence of an open-textured provision like 'freedom of expression' necessarily circumscribes any basis in Australian constitutional law for giving significance to the recognised speech values linked to the discovery of truth or to individual achievement of self-realisation or autonomy.[214] But the express textual sources and related structure of the Australian Constitution emphatically provide a basis for constitutionalising free speech protection that furthers the value of representative government.[215]
Despite its limitation to furthering only this one free speech value, the implied freedom of political communication is potentially very broad. This potential breadth of the constitutionally protected freedom has been underlined in cases decided since Lange despite a changing High Court.[216] The High Court's recent decision in Coleman v Power[217] well illustrates the elusiveness and the potential breadth of the freedom of communication that is protected to further the interest of Australian representative government based on the text and structure of the Australian Constitution. Coleman was convicted for using insulting words — specifically for the statement, '[t]his is constable Brendan Power, a corrupt police officer.'[218] A divided Court indicated that this speech was constitutionally protected under the implied freedom.[219]
Chief Justice Gleeson, noting that the appellant's conduct was 'not party political' nor concerned with 'laws, or government policy' and that 'reconciling freedom of political expression with the reasonable requirements of public order becomes increasingly difficult when one is operating at the margins of the term "political"', concluded that the speech could be prohibited under Lange to further the public order.[220] Justices Callinan[221] and Heydon[222] agreed. In separate judgments, McHugh J,[223] Gummow and Hayne JJ together,[224] and Kirby J,[225] all concluded that the defendant's statement was a political communication within the protected freedom.
In the text of the United States Constitution, general 'freedom of
speech' language makes it is easy to argue, and for the
courts to conclude (as they have), that all of the possible free speech values
are embraced by the
constitutional wording. Against this open-ended language,
Alexander Meiklejohn argued that the purpose of 'free speech' under the
United States Constitution was not to further private interests, like
self-fulfillment, but should be limited to its role of furthering
'self-government.'[226] Clearly,
in American constitutional law, Meiklejohn lost this part of the debate. In a
convoluted way, one might say that Meiklejohn won the debate in
Australia. By necessity, because the value of free speech in furthering
self-government is the only thing —
the very thing — which the text
and structure of the Australian Constitution engender, Australia's
constitutionally protected freedom of communication is limited to that one free
speech value. That is the value
that Meiklejohn regarded as the heart and soul
of free speech.
It is important to remind myself and to remind my readers that I am an American writing about Australian constitutional law. At one level, this is a comparative study, but it is also primarily a study about Australian constitutional law and about a particular case decided by the High Court of Australia. It is, specifically, a study of an Australian constitutional law decision that has drawn upon American constitutional law because of what the two constitutional systems share, but share with a difference. It has been my intention to take seriously and to respond to the High Court's analysis which assumes a relevant Australian-American interrelatedness.
The unanimous Lange decision continues to be the leading case explaining Australia's implied freedom of political communication.[227] At the centre of that explanation was the High Court's focus, for Australia and the United States, on the necessity of accommodating 'basic common law concepts and techniques to a federal system of government embodied in a written and rigid constitution.'[228] In the words of Sir Owen Dixon, 'the supremacy of the law was rooted in the common law' and the 'conception of the supremacy of the law over the legislature is the foundation of federalism.'[229] At the very bull's eye of the Lange Court's explanation was the Court's discussion of the difference between the accommodation of the common law and federalism through the 'fragmented' American and the unified Australian Constitutions.[230] The Australian-American difference in this respect provided part of the Court's reasoning for not using the American approach that had been adopted in Theophanous. But the significance of the shift from Theophanous to Lange seems relatively modest; and the High Court's attention to American constitutional law invites a broader consideration of the similarities and differences of American and Australian protection of freedom of political expression.
Overriding Australian-American differences, each of the two Constitutions has a text-based reason for protecting speech which furthers representative government. Within their shared commitment to protect free speech which is political, Australia and the United States share major freedom of speech territory.
Australia also shares with the United States a tradition of developing constitutional law through a common law methodology. A common law constitutional methodology commits a court to treating its own precedents as a dynamic source of law, sensitive to changing circumstances made known to the court over time. The end product of a common law constitutional line of development is further development. Although the line of growth will be circumscribed by Lange's determination that representative democracy must be limited to that which can be derived from the constitutional text and structure, the broad scope and variety of communications affecting political matters described in Lange and elaborated in other cases demonstrate that that limitation need not be unduly constraining.
The constitutional common law methodology does not entail a commitment to any particular substantive vision of freedom of political communication — certainly not to the peculiar substantive view into which Meiklejohn's thesis took him,[231] nor to any specific doctrines of American constitutional law. As the High Court made clear from the beginning, Australia will forge its own view of what the freedom of political communication requires. The constitutional jurisprudence that will further that value in some particular direction in Australia might or might not make Meiklejohn dance in the streets.[232]
[*] O K Patton Professor of Law, University of Iowa (Yale BA, Harvard LLB). An earlier version of the first third (Part I) of this article was written while I was a Visiting Scholar at the Centre of Comparative Constitutional Studies, University of Melbourne Law School, in 1999 and presented at the 1999 ALTA Conference at Victoria University, Wellington, New Zealand. I wish to thank Professor Cheryl Saunders, Director of the Centre, for her hospitality and that of her colleagues and the staff at the Centre during the very happy months I spent in Melbourne at the Centre. I also wish to thank my Iowa colleagues for their comments on a faculty seminar on the second third of the article (Part II) and Sir Geoffrey Palmer, Dr Adrienne Stone, Professor Kim Rubenstein, and the anonymous referee for comments on the paper in roughly its present form. Finally, I express my gratitude to many Research Assistants, too numerous to mention, for work too extensive to catalogue, during the slow gestation of the paper over several years. The article's flaws that remain are my own, and they are surely fewer because of all this assistance.
[1] Alexander Meiklejohn, Free Speech and Its Relation to Self-Government (1948) 11 (Declaration of Independence, 1776), 14 (Mayflower compact, 1620), 15 (preamble to the Constitution of the United States, 1787).
[2] [1992] HCA 45; (1992) 177 CLR 106 ('ACTV'). See also Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 ('Nationwide News').
[3] Australian Constitution s 24: 'The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth …'.
[4] Australian Consitution s 7: 'The Senate shall be composed of senators … directly chosen by the people of the State …'.
[5] Australian Constitution s 128: '… the proposed law shall be submitted … to the electors qualified to vote for the election of members of the House of Representatives'.
[6] ACTV [1992] HCA 45; (1992) 177 CLR 106, 137–8. Meiklejohn was not cited, but that is not surprising. Meiklejohn is famous for his theory of free speech and democracy among American civil libertarians, but his basic idea has long been in the public domain. See Frederick Schauer, Free Speech: A Philosophical Enquiry (1982) 36, citing Immanuel Kant, On the Old Saw: That May Be Right in Theory But It Won't Work in Practice (E B Ashton trans, 1974 ed) 72 [trans of: Über den Gemeinspruch: Das mag in der Theorie riehtig sein]; Benedict de Spinoza, 'A Theologico–Political Treatise' in A Theologico–Political Treatise and A Political Treatise (R H M Elwes trans, 1951 ed) 1, ch XX [trans of: Tractus Theologico–Politicus]; David Hume, 'Of the Liberty of the Press' in David Hume, Essays: Moral, Political, and Literary (first published 1742, 1889 ed with preliminary dissertations and notes by T H Green and T H Grose) vol 1, 94. In Adrienne Stone, 'Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication' [2001] MelbULawRw 13; (2001) 25 Melbourne University Law Review 374, 375 n 4, Dr Stone attributed the same idea to Charles Black, Structure and Relationship in Constitutional Law (1969). The acknowledgment of Meiklejohn came later in Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, 124 (Mason CJ) ('Theophanous'), where Mason CJ noted that '[a] similar view has been advocated by Alexander Meiklejohn.'
[7] See generally 'Symposium: Constitutional Rights for Australia?' [1994] SydLawRw 12; (1994) 16 Sydney Law Review 145, 145–287 (a collection of essays by prominent Australian, and other, constitutional scholars variously supporting or criticising the High Court's discovery of a judicially enforceable implied freedom). Compare Jeffrey Goldsworthy, 'Constitutional Implications and Freedom of Political Speech: A Reply to Stephen Donaghue' [1997] MonashULawRw 22; (1997) 23 Monash University Law Review 362, 371–4, with Jeremy Kirk, 'Constitutional Implications (II): Doctrines of Equality and Democracy' [2001] MelbULawRw 2; (2001) 25 Melbourne University Law Review 24, 44–57; Michael Stokes, 'Interpretation and Changes in Constitutional Law; A Reply to Jeffrey Goldsworthy' (1996) 21 Australian Journal of Legal Philosophy 1.
[8] [1997] HCA 25; (1997) 189 CLR 520 ('Lange').
[9] Sir Owen Dixon, 'The Law and the Constitution' (lecture, delivered in Melbourne, 1935) in Judge Severin Woinarski (ed), Jesting Pilate and Other Papers and Addresses (1965) ('Jesting Pilate') 38, 44. Jesting Pilate is a collection of Dixon lectures and essays delivered or written over a span of 32 years, from 1933–1964. One bit of wished–for originality might have eschewed separate State and federal jurisdictions: see at 54. See also Sir Owen Dixon, 'Address upon Taking the Oath of Office in Sydney as Chief Justice of the High Court of Australia on 21st April, 1952' in Jesting Pilate 245, 249.
[10] Official Record of the Debates of the Australasian Federal Convention, Volumes I–V (as reprinted, 1986, Gregory Craven, editor), passim.
[11] In an on–going study of the Australian convention debates, I have found that nearly every convention day contains some American reference, often extensive and often central to the issues before the convention.
[12] As they, like their American counterparts, all were. See Deborah Cass and Kim Rubenstein, 'Representation/s of Women in the Australian Constitutional System' [1995] AdelLawRw 2; (1995) 17 Adelaide Law Review 3, 28–9.
[13] See John Andrew La Nauze, The Making of the Australian Constitution (1972) 27–8, 49, 273–4; Erling Messer Hunt, American Precedents in Australian Federation (1930). La Nauze points out at 273 that Australia's constitutional framers were particularly influenced by the then recently published work of an English scholar, James Bryce, The American Commonwealth (1888), and that the actual knowledge of the United States Constitution and American constitutional law varied a great deal from one Convention delegate to another. See also Harry Evans, 'The Other Metropolis: the Australian Founders' Knowledge of America' (1998) 2 The New Federalist: The Journal of Australian Federation History 30–4.
[14] See William Harrison Moore, The Constitution of the Commonwealth of Australia (2nd ed, 1910) 608. In D'Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91, 111–20, Sir Samuel Griffith, the first Chief Justice of the High Court and one of the primary authors of the Australian Constitution (see La Nauze, above n 13, 48–81; Emeritus Professor Geoffrey Bolton, 'Lucinda Oration, Supreme Court of Queensland, Brisbane, 30 March 2001' in Michael White and Aladin Rahemtula (eds), Sir Samuel Griffith: The Law and the Constitution (2002) 1, 6–10) relied extensively on the reasoning of comparable American cases. The American influence can also be seen in Australian scholarship. See, eg, Stephen Gageler, 'The High Court on Constitutional Law: The 2001 Term' [2002] UNSWLawJl 8; (2002) 25 University of New South Wales Law Journal 194, 195 (modelled after the Harvard Law Review's annual Supreme Court Review, although Australia has no 'Term' equivalent); Jeffrey Goldsworthy, 'Interpreting the Constitution in Its Second Century' [2000] MelbULawRw 27; (2000) 24 Melbourne University Law Review 677, 678, 695–7.
[15] In Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129, the landmark 'Engineers' case, Isaacs J stressed the differences between the United States and Australian Constitutions. Despite this case's huge importance in Australian constitutional law, its reasoning has been frequently criticised and the relevance of the Australian–American contrast questioned. See Tony Blackshield and George Williams, Australian Constitutional Law & Theory (4th ed, 2006) 296–324; Sir Anthony Mason, 'The High court of Australia: A Personal Impression of Its First 100 Years' [2003] MelbULawRw 33; (2003) 27 Melbourne University Law Review 864, 873; Geoffrey Sawer, Australian Federalism in the Courts (1967) 130–1, 198; Leslie Zines, The High Court and the Constitution (4th ed, 1997) 10–11; Sir Owen Dixon, 'Marshall and the Australian Constitution' in Jesting Pilate, above n 9, 166, 171.
[16] Sir Owen Dixon, 'Marshall and the Australian Constitution' in Jesting Pilate, above n 9, 166, 199.
[17] United States Constitution amend I (prohibiting abridgements of 'the freedom of speech', ratified in 1791).
[18] Nationwide News [1992] HCA 46; (1992) 177 CLR 1, 31 n 95 (Mason CJ) citing Smith v Daily Mail Publishing Co, 443 US 97, 106 (1979); 32 n 2 (Mason CJ) citing Bridges v California, [1941] USSC 148; 314 US 252, 270–1 (1921) and Landmark Communications Inc v Virginia, [1978] USSC 70; 435 US 829, 842 (1978); 60 n 95 (Brennan J) citing Crandall v Nevada, [1867] USSC 15; 73 US 35 (1867) ('Crandall') and The Butchers' Benevolent Association of New Orleans v The Crescent City Live–Stock Landing and Slaughter–House Company[1872] USSC 142; , 83 US 36 (1872) ('The Slaughterhouse Cases'); 73 n 30 (Deane and Toohey JJ) citing Crandall[1867] USSC 15; , 73 US 35, 44 (1867); 77 n 40 (Deane and Toohey JJ) citing Red Lion Broadcasting Co Inc v Federal Communications Commission, [1969] USSC 141; 395 US 367, 375–7 (1969) ('Red Lion Broadcasting'); 103 n 19 (McHugh J) citing The New York Times Co v Sullivan, [1964] USSC 40; 376 US 254, 269–70 (1964) ('NY Times'); ACTV [1992] HCA 45; (1992) 177 CLR 106, 140 n 11 (Mason CJ) citing NY Times[1964] USSC 40; , 376 US 254 (1964) and Smith v Daily Mail Publishing Co, 443 US 97, 106 (1979); 143 n 24 (Mason CJ) citing Cox Broadcasting Corp v Cohn, [1975] USSC 44; 420 US 469, 491 (1975); 143 n 25 (Mason CJ) citing Konigsberg v State Bar of California, [1961] USSC 73; 366 US 36, 50–1 (1961); 144 n 27 (Mason CJ) citing Monitor Patriot Co v Roy, [1971] USSC 32; 401 US 265, 272 (1971) and Buckley v Valeo, [1976] USSC 24; 424 US 1, 15 (1976); 159 n 54 (Brennan J) citing Mills v Alabama, [1966] USSC 96; 384 US 214 (1966); 159 n 56 (Brennan J) citing NY Times[1964] USSC 40; , 376 US 254 (1964); 169 n 84 (Deane and Toohey, JJ) citing Red Lion Broadcasting[1969] USSC 141; , 395 US 367, 375–7 (1969); 211 n 2 (Gaudron J) citing First National Bank of Boston v Bellotti, [1978] USSC 138; 435 US 765, 776–7 (1978); 212 n 4 (Gaudron J) citing First National Bank of Boston v Bellotti, [1978] USSC 138; 435 US 765 (1978); 213 n 10 (Gaudron J) citing Crandall[1867] USSC 15; , 73 US 35, 44 (1867) and The Slaughterhouse Cases[1872] USSC 142; , 83 US 36, 79 (1875); 214 n 11 (Gaudron J) citing Crandall[1867] USSC 15; , 73 US 35 (1867); 231 n 65 (McHugh J) citing Buckley v Valeo, [1976] USSC 24; 424 US 1, 14–15 (1976); 232 n 69 (McHugh J) citing Crandall[1867] USSC 15; , 73 US 35, 44 (1867); 235 n 73 (McHugh J) citing Buckley v Valeo, [1976] USSC 24; 424 US 1, 18 (1976); 239 n 78 (McHugh J) citing Buckley v Valeo, [1976] USSC 24; 424 US 1, 19 (1976); 241 n 80 (McHugh J) citing Mills v Alabama, [1966] USSC 96; 384 US 214, 219 (1966).
[19] [1964] USSC 40; 376 US 254 (1964).
[20] Ian Loveland, Political Libels: A Comparative Study (2000); Mark Tushnet, 'The Issue of State Action/Horizontal Effect in Comparative Constitutional Law' (2003) 1 International Journal of Constitutional Law 79; Adrienne Stone and George Williams, 'Freedom of Speech And Defamation: Developments in the Common Law World' [2000] MonashULawRw 15; (2000) 26 Monash University Law Review 362.
[21] [1997] HCA 25; (1997) 189 CLR 520.
[22] Ibid 562; below, Part II.
[23] In Nationwide News [1992] HCA 46; (1992) 177 CLR 1, Mason CJ and Dawson and McHugh JJ concurred on federalism grounds; in ACTV [1992] HCA 45; (1992) 177 CLR 106, Dawson J and Brennan J, in part, dissented.
[24] Applying the principle, see Theophanous [1994] HCA 46; (1994) 182 CLR 104; Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211 ('Stephens'); not applying the principle, see Langer v Commonwealth [1996] HCA 43; (1996) 186 CLR 302; Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 ('Kruger'); Muldowney v South Australia (1996) 186 CLR 352; Cunliffe v Commonwealth [1994] HCA 44; (1994) 182 CLR 272.
[25] [1994] HCA 46; (1994) 182 CLR 104.
[26] (1994) 182 CLR 221.
[27] Technically and, as it turned out, crucially, they were actually 3–1–3 decisions. Deane J acquiesced in the answers of Mason CJ, Toohey and Gaudron JJ to the specific questions reserved by the stated cases, but because his judgment advocated a far more speech–protective position, the High Court later, in Lange [1997] HCA 25; (1997) 189 CLR 520, treated Theophanous [1994] HCA 46; (1994) 182 CLR 104 and Stephens [1994] HCA 45; (1994) 182 CLR 211 as lacking a majority position. This reasoning seemed 'rather disingenuous' to Professor Loveland in Ian Loveland, Political Libels (1999) 148: 'It is something of an exercise in sophistry to claim that because Deane J went far beyond the point reached by the plurality he cannot be assumed to have approved their destination'.
[28] Kris Walker, 'It's A Miracle!: High Court Unanimity on Free Speech' (1997) 22 Alternative Law Journal 179.
[29] ACTV [1992] HCA 45; (1992) 177 CLR 106, 137.
[30] Ibid 135, 137, 139.
[31] See Jeremy Kirk, 'Constitutional Implications (I): Nature, Legitimacy, Classification, Examples' [2000] MelbULawRw 26; (2000) 24 Melbourne University Law Review 645, 647.
[32] Lange [1997] HCA 25; (1997) 189 CLR 520, 566–7. Yet the Court also said that, 'to have a full understanding of the concept of representative government' (at 559), it is necessary to heed the words of A H Birch, Representative and Responsible Government (1964) 17, that elections must be free 'with all that this implies in the way of freedom of speech …'. Birch was certainly not relying on the text of the Australian Constitution or any particular text.
[33] Lange [1997] HCA 25; (1997) 189 CLR 520, 566–7, relying in part on McGinty v State of Western Australia [1996] HCA 48; (1996) 186 CLR 140 ('McGinty') which included extensive discussion of the implied freedom of communication when it rejected a one–person one–vote principle.
[34] Leslie Zines, 'The Present State of Constitutional Interpretation' in Adrienne Stone and George Williams (eds), The High Court at the Cross Roads (2000) 224, 227–31. Of course, as demonstrated by the result in McGinty [1996] HCA 48; (1996) 186 CLR 140, other areas of constitutional law may be affected by the High Court's reliance on text and structure rather than 'representative democracy'. See, eg, Cass and Rubenstein, above n 12.
[35] [1992] HCA 45; (1992) 177 CLR 106, 138, 141; see also 149 (Brennan J: not 'very precise criterion for determining the validity of impugned legislation.')
[36] See above, n 1 and accompanying text.
[37] See Leslie Zines, 'Judicial Activism and the Rule of Law in Australia' in Tom Campbell and Jeffrey Goldsworthy (eds), Judicial Power, Democracy and Legal Positivism (2000) 400.
[38] Lange [1997] HCA 25; (1997) 189 CLR 520, 560–1.
[39] Ibid 557–8, 561–2.
[40] Compare Stephens [1994] HCA 45; (1994) 182 CLR 211, 232 (Mason CJ, Toohey and Gaudron JJ), 257 (Deane J), with Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 ('Levy'), 595–6 (Brennan CJ, denying such applicability but conceding a contrary majority in Stephens). In a recent decision, the Court came close but did not resolve the question: Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 involved a State statute prohibiting insulting words spoken to a State police officer. Noting that the State conceded the applicability of the constitutional freedom to communications concerning State political matters, McHugh J stated that the concession was proper because such officers enforce federal as well as State law: at 44–5. Gummow and Hayne JJ acknowledged that there was force in McHugh's reasoning but relied solely on the concession without deciding its correctness: at 78. Justice Kirby did not rely on the concession but agreed with McHugh J that the State statute as applied to State police was within the constitutional freedom: at 89. See also Callinan J at 112–13 (disagreeing with concession); and Heydon J at 120 (assuming without deciding that the State statutory prohibition burdened the constitutional freedom).
[41] Lange [1997] HCA 25; (1997) 189 CLR 520, 571–2. See Walker, above n 28, 181.
[42] In Alexander Meiklejohn, 'The First Amendment Is an Absolute' (1961) The Supreme Court Review 245, Meiklejohn drew the boundaries of political communication in the United States surprisingly broadly: 255–7; but, despite the 'absolute' in the article's title, the article's argument is the unremarkable proposition that, whatever 'abridging the freedom of speech' in the First Amendment means, that is something the government may not do: 247–8. Compare McHugh J's statement in Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, 49: 'In determining whether a law is invalid because it is inconsistent with freedom of political communication, it is not a question of … balancing. … Freedom of communication always trumps [conflicting government powers].'
[43] Dr Stone analysed the tests that had been used by various Justices at the time of her writing: Adrienne Stone, 'The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication' [1999] MelbULawRw 26; (1999) 23 Melbourne University Law Review 668.
[44] See APLA Ltd v Legal Services Commissioner (NSW) (2005) [2005] HCA 44; 79 ALJR 1620, 219 ALR 403 ('APLA'); Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181; Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 ('Lenah Game Meats'); McClure v Australian Electoral Commission (1999) [1999] HCA 31; 163 ALR 734 (Hayne J).
[45] Broadly speaking, this sort of means–end test governs entrenched constitutional protection in various legal systems. See, eg, R v Oakes [1986] 1 SCR 103 (Canada); Ministry of Transport v Noort [1992] NZCA 51; [1992] 3 NZLR 260 (New Zealand); RAV v City of St Paul, Minnesota, [1992] USSC 99; 505 US 377 (1992) (United States).
[46] Or 'proportionality': Lange [1997] HCA 25; (1997) 189 CLR 520, 562; see also Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, 90 (Kirby J).
[47] Lange [1997] HCA 25; (1997) 189 CLR 520, 562.
[48] The new formula asks whether 'the [challenged] law regulates communication upon political and governmental matters in a manner which is inconsistent with the system of representative government for which the Constitution provides?': Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, 51 (McHugh J), (emphasis added). Justices Gummow and Hayne, at 78, and Kirby J, at 82, concurred in this reading.
[49] Lange [1997] HCA 25; (1997) 189 CLR 520, 567.
[50] Levy [1997] HCA 31; (1997) 189 CLR 579, 598 (emphasis added).
[51] [2004] HCA 39; (2004) 220 CLR 1, 48 (McHugh J), 77–8 (Gummow and Hayne JJ), 82 (Kirby J). See also 31 (Gleeson CJ).
[52] Lange [1997] HCA 25; (1997) 189 CLR 520, 568.
[53] Levy [1997] HCA 31; (1997) 189 CLR 579, 598. But see McHugh J's judgment in Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, 52 (broad ban permitted if 'only way that the system of representative government could be protected'), 53 (constitutional tolerance of burden on communication ends if burden is 'unreasonably greater than is achievable by other means').
[54] [1994] HCA 46; (1994) 182 CLR 104, 126; see also 163 (Deane J, concurring in the judgment).
[55] [1997] HCA 25; (1997) 189 CLR 520, 556.
[56] Naming this section 'The Common Law and the Constitution' identifies the focus of the Court's attention, but the need for accuracy requires frequent references to the relationship between statutes and the Constitution; and the tension between the common law emphasis and the unavoidable discussion of statutes reveals that the message of the Essay is more complicated than it first appears to be.
[57] As the Theophanous judgment made clear, the 'working out' of the 'contours' separating actionable defamation and freedom of communication cannot be expected to be the same in Australia and the United States. See Stone and Williams, above n 20.
[58] Lange [1997] HCA 25; (1997) 189 CLR 520, 562.
[59] Ibid.
[60] Ibid (citing Sir Owen Dixon, 'Sources of Legal Authority' in Jesting Pilate, above n 9, 198, 199–200).
[61] Lange [1997] HCA 25; (1997) 189 CLR 520, 562.
[62] Ibid.
[63] Ibid.
[64] Ibid 563.
[65] Ibid.
[66] Ibid.
[67] Ibid 562.
[68] Writing in the first decade of the Australian Constitution, Professor Harrison Moore said, '[b]ut even where the Australian Constitution departs most from the American, that departure has generally been conscious and advised, as an appreciation of the results of American experience, so that in interpretation we must not ignore but adapt': Harrison Moore, above n 14, 609.
[69] Lange [1997] HCA 25; (1997) 189 CLR 520, 563.
[70] See Sir Anthony Mason, 'The Common Law in Final Courts of Appeal Outside Britain' (2004) 78 Australia Law Journal 183, 190.
[71] This is a slight exaggeration: see generally Laurence H Tribe, American Constitutional Law (3rd ed, 2000) 466-501; but the qualifications that would be necessary to fine–tune the statement are entirely unnecessary for the purpose of the present analysis.
[72] When state law questions come before any federal court in the United States in so–called 'diversity' cases, the court decides those questions on the basis of state law as determined by a state court: see ibid 470–2.
[73] But see below, nn 184–205 and accompanying text (discussing common law methodology for interpreting constitutional law).
[74] Lange [1997] HCA 25; (1997) 189 CLR 520, 564 (quoting Sir Owen Dixon, 'Sources of Legal Authority' in Jesting Pilate, above n 9, 198, 199).
[75] It is close but not precisely the same as what the High Court said and did in Theophanous. Unlike the United States where the state court would decide the common law, in Theophanous it was the High Court itself which decided the meaning of both the common law and the Constitution. At one time, the common law of Australia was the common law of all of the British Commonwealth; and even as Australia became free to have its own common law distinct from that of the United Kingdom, the uniformity of the common law across former parts of the British Empire was regarded as important. See Mason, above n 70, 187 n 8, 189. Uniformity was much easier to maintain when appeals to the Privy Council were available throughout the Commonwealth — until 1986 in Australia: see Australia Act 1986 (UK), c 2, s 11; and until 2003 in New Zealand: see Supreme Court Act 2003 (NZ) s 42.
[76] Lange [1997] HCA 25; (1997) 189 CLR 520, 566.
[77] See Sir Owen Dixon, 'Sources of Legal Authority' in Jesting Pilate, above n 9, 198, 202 ('ultimate difference of legal theory'; 'deep significance').
[78] [1997] HCA 25; (1997) 189 CLR 520, 566, 568. See above, in text accompanying nn 42–53. Greg Taylor has argued that the common law as developed by the Court to conform to the Constitution may be modified by statute: Greg Taylor, 'Why the Common Law Should Be Only Indirectly Affected by Constitutional Guarantees: A Comment on Stone' [2002] MelbULawRw 32; (2002) 26 Melbourne University Law Review 623, 627; but Dr Stone has persuasively argued to the contrary: Adrienne Stone, 'The Common Law and the Constitution: A Reply' [2002] MelbULawRw 33; (2002) 26 Melbourne University Law Review 646, 649, 653. Despite their different categories, both the common law and statutes must satisfy the same test mandated by the Lange judgment: [1997] HCA 25; (1997) 189 CLR 520, 567–8. Statutes 'cannot derogate from the common law to produce a result which diminishes the extent of the immunity conferred by the Constitution': 566. Of course, any common law development not required to satisfy the Australian Constitution is subject to statutory change.
[79] [1997] HCA 25; (1997) 189 CLR 520, 563. The exact meaning of this sentence is unclear, but it seems to be talking about the American concept of 'state action' and the American constitutional law principle that judicial action enforcing private rights is a form of state action according to NY Times[1964] USSC 40; , 376 US 254, 269–70 (1964) and its progeny. 'State law rights' in the quoted sentence may refer to the right (based on the United States Constitution) to a defence to a defamation action, as the NY Times case provides. See Stone, above n 6, 411–12.
[80] See Lange [1997] HCA 25; (1997) 189 CLR 520, 565.
[81] Rejecting a distinction between statutory laws abridging freedom of speech and common law abridgements, the Supreme Court of the United States said 'the test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised': NY Times[1964] USSC 40; , 376 US 254, 265 (1964).
[82] Adrienne Stone, 'The Australian Free Speech Experiment and Scepticism about the UK Human Rights Act' in Tom Campbell, K D Ewing and Adam Tomkins (eds) Sceptical Essays on Human Rights (2001) 391, 395–9; Adrienne Stone, 'Freedom of Political Communication, the Constitution and the Common Law' (1998) 26 Federal Law Review 219, 227–45.
[83] Stone, 'Freedom of Political Communication, the Constitution and the Common Law', above n 82, 228–9 (though Dr Stone concedes that such avoidance tactics do not entirely escape constitutional implications: 249).
[84] Ibid 236–44.
[85] See ibid 244, 246; see below, nn 184–205 and accompanying text.
[86] Dr Stone noted advantages as well as disadvantages in the Court's addressing rather than avoiding a constitutional question: Stone, 'Freedom of Political Communication, the Constitution and the Common Law', above n 82, 246–50.
[87] See, eg, Stephen Gageler, above n 14, 198.
[88] Lange [1997] HCA 25; (1997) 189 CLR 520, 576.
[89] Ibid 563.
[90] The reference to this 'constitutional classification' is not altogether clear. It seems most likely to refer to 'a constitutional privilege', referred to in the immediately preceding sentence, but it could refer more broadly to the First Amendment, from which the words 'the freedom of speech, or of the press' are quoted earlier in the paragraph. Nothing seems to turn on resolving that ambiguity.
[91] Bivens v Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 US 388 (1971) ('Bivens').
[92] Northern Territory v Mengel (1995) 185 CLR 307 ('Mengel').
[93] Lange [1997] HCA 25; (1997) 189 CLR 520, 563.
[94] Although government actions in violation of free expression can cause injury (for example, denying a government job to someone because she advocated the election of a disfavoured candidate), claims based on the freedom of expression are characteristically defensive — to avoid civil or criminal liability that would otherwise arise, as the relatively few Australian cases demonstrate.
[95] See Bivens, 403 US 388, 389, 392, 395–8 (1971).
[96] A Bivens claim was denied to an individual claiming a freedom of speech violation related to federal employment in Bush v Lucas, [1983] USSC 116; 462 US 367 (1983). The Court said in Correctional Service Corp v Malesko, [2001] USSC 68; 534 US 61, 68 (2001) that 'we have consistently refused to extend Bivens liability to any new context or new category of defendants.'
[97] 42 USC § 1983 (2000). Actions for violations of the First Amendment under § 1983 give rise to damages based only for actual harm, and an individual whose First Amendment right was abridged is not compensated for the value of the right lost. See Memphis Community School District v Stachura, [1986] USSC 147; 477 US 299, 309 (1986); Jean C Love, 'Damages: A remedy for the Violation of Constitutional Rights' (1979) 67 California Law Review 1242; Jean C Love, 'Presumed General Compensatory Damages in Constitutional Tort Litigation: A Corrective Justice Perspective' (1992) 49 Washington and Lee Law Review 67.
[98] See Wilson v Garcia, [1985] USSC 96; 471 US 261, 280 (1985); Monell v Department of Social Services of City of New York, [1978] USSC 102; 436 US 658 (1978); Monroe v Pape, [1961] USSC 22; 365 US 167 (1961); Susan S Kuo, 'Bringing in the State: Toward a Constitutional Duty to Protect from Mob Violence' (2004) 79 Indiana Law Journal 177, 206; John C Jeffries, Jr, 'Damages for Constitutional Violations: The Relation of Risk to Injury in Constitutional Torts' (1989) 75 Virginia Law Review 1461, 1466–70.
[99] [1939] HCA 9; (1939) 62 CLR 339 ('James').
[100] Australian Constitution s 92 (freedom of interstate trade).
[101] James [1939] HCA 9; (1939) 62 CLR 339, 363–5.
[102] Ibid 362. See Michael Coper, Freedom of Interstate Trade under the Australian Constitution (1983) 329 n 28.
[103] Mengel (1995) 185 CLR 307, 348. Bivens actions for damages would add nothing to the common law action: British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; (2003) 217 CLR 30, 52–3 (McHugh, Gummow and Hayne JJ); Kruger [1997] HCA 27; (1997) 190 CLR 1, 124–6 (Gaudron J).
[104] Simpson v Attorney-General [1994] 3 NZLR 667 ('Baigent's Case').
[105] Ibid 692, 702, 705.
[106] Lange [1997] HCA 25; (1997) 189 CLR 520, 560 ('personal rights'), 560 ('personal right'), 575 ('private right'), 567 ('private rights'); Theophanous [1994] HCA 46; (1994) 182 CLR 104, 148–9 ('personal freedom'), 145, 147, 148, 162 ('personal right'), 153 ('rights of individuals') (Brennan J), 195 ('private right') (McHugh J).
[107] See Stone, above n 6. Dr Stone argues that the term 'personal rights', as used by the Court, purports to limit the implied constitutional freedom of communication for various reasons — because the freedom is restricted in scope, because it excludes protection of individual autonomy, and because it has no application to the common law; but, she argues, none of these limiting attributes are consistent with the basic freedom that the High Court has recognised.
[108] [1997] HCA 25; (1997) 189 CLR 520, 567 (emphasis added).
[109] United States Constitution amend I.
[110] This restriction on legislative power is applicable not only to Congress (and the federal government) but also to the several American states through 'incorporation' of freedom of speech in the Due Process Clause of the Fourteenth Amendment which provides that '[n]o State shall … deprive any person of … liberty … without due process of law': United States Constitution amend XIV, § 1. See Gitlow v People of the State of New York, [1925] USSC 174; 268 US 652 (1925) ('Gitlow') holding that the First Amendment is incorporated in the Fourteenth Amendment through the Due Process Clause. See also Laurence H Tribe, American Constitutional Law (2nd ed, 1988) § 11–2. The Lange Court noted the incorporation, although the Court sensibly (but erroneously) seemed to place the locus of incorporation in the Fourteenth Amendment's Privileges and Immunity Clause (Lange [1997] HCA 25; (1997) 189 CLR 520, 563) — as did Alexander Meiklejohn, see Meiklejohn, above n 1, 59–61.
[111] Lange [1997] HCA 25; (1997) 189 CLR 520, 566. That the resulting parallel is not simply a play on words is supported by the fact that the framers of the United States Constitution, those in Philadelphia in 1787 and those who adopted the 'Bill of Rights' in 1791, were primarily if not exclusively concerned with limiting national legislative power. See Leonard Levy, Origins of the Bill of Rights (1999) 35–7, 43; Akhil Amar, The Bill of Rights: Creation and Reconstruction (1998) 6, 21. See also Joseph J Ellis, Founding Brothers: The Revolutionary Generation (2000) 48–80. Limitation on state legislative power, and thus a much wider protection of freedom of speech, did not come until much later: see Gitlow[1925] USSC 174; , 268 US 652 (1925). A curiously parallel concern about national but not State restrictions on religious freedom was expressed at the Australasian Constitutional Convention in Melbourne by Henry Higgins, a representative from Victoria (and later a High Court Justice): Official Record of the Debates of the Australasian Federal Convention, Melbourne, 7 February 1898, 654–7 (Henry Higgins).
[112] See generally above n 7.
[113] Lange [1997] HCA 25; (1997) 189 CLR 520, 567.
[114] See generally above, nn 42–53; APLA (2005) [2005] HCA 44; 79 ALJR 1620; 219 ALR 403.
[115] [1994] HCA 46; (1994) 182 CLR 104, 147–48.
[116] Ibid 148.
[117] See David Feldman, 'The Human Rights Act 1998 and Constitutional Principles' (1999) 19 Legal Studies 165; Conor A Gearty, 'Unraveling Osman' (2001) 64 Modern Law Review 159; Anthony Giddens, 'Risk and Responsibility' (1999) 62 Modern Law Review 1; Lord Hoffmann, 'Human Rights and the House of Lords' (1999) 62 Modern Law Review 159; Murray Hunt, 'The "Horizontal Effect" of the Human Rights Act' (1998) Public Law 423; Giorgio Monti, 'Osman v UK — Transforming English Negligence Law into French Administrative Law' (1999) 48 International and Comparative Law Quarterly 757; Sir Stephen Sedley, 'The Common Law and the Political Constitution: A Reply' (2001) 117 Law Quarterly Review 68; Stone, above n 6, 401–4.
[118] [1994] HCA 46; (1994) 182 CLR 104, 130; and citing for the same proposition, Lingens v Austria (1986) 8 European Human Rights Reports 407; Oberschlick v Austria [1991] 204 Eur Court HR (ser A) 30, interpreting art 10 of the European Convention on Human Rights.
[119] See Laurence H Tribe, American Constitutional Law (2nd ed, 1988) §§ 5–15, 18–1 to 18–7.
[120] That determining which actions are 'actions' of the 'state' can be an elusive question is recognised and well demonstrated by Dr Stone. See Stone, above n 6, 403–04, 415–17.
[121] Closely related to the state versus private action aspect of the American state action doctrine is the concept of negative versus affirmative rights: the Constitution does not interfere with private action and it does not require the government affirmatively to help constitutional right holders; if it did, the obligation of the government not to interfere would turn into an obligation to facilitate private actions. McClure v Australian Electoral Commission [1999] HCA 31; (1999) 163 ALR 734, 740–41 (Hayne J), denied a request for affirmative relief to order the media to cover the petitioner's election campaign. In that case, Hayne J quoted Lange [1997] HCA 25; (1997) 189 CLR 520, 560, pointing out that the freedom of political communication was 'negative in nature' and did not 'confer personal rights.' That decision, for that reason, is entirely consistent with American freedom of speech law.
[122] [1997] HCA 25; (1997) 189 CLR 520, 562.
[123] See Philip Ayres, Owen Dixon (2003); Mason, above n 15, 878–79; Michael Wait, 'The Slumbering Sovereign: Sir Owen Dixon's Common Law Constitution Revisited' [2001] FedLawRw 3; (2001) 29 Federal Law Review 57.
[124] [1997] HCA 25; (1997) 189 CLR 520, 562, 564.
[125] [1997] HCA 25; (1997) 189 CLR 520, 562, quoting from Jesting Pilate, above n 9, 199–200.
[126] See R F V Heuston, Essays in Constitutuional Law (2nd ed, 1964), 14–15, 23–24.
[127] See Attorney-General (NSW) v Trethowan [1932] UKPCHCA 1; (1931) 44 CLR 394; (1932) 47 CLR 97, in which Dixon J applied this analysis, qualifying parliamentary sovereignty in Australia, to find invalid legislation that purported to eliminate the upper house of the New South Wales Parliament without following the required procedures for doing so.
[128] See Jesting Pilate, above n 9, 42; 199–200; 206–07.
[129] Some aspects of this lecture (characterised by Dixon's biographer as a 'major paper', Philip Ayres, Owen Dixon (2003) 67) were repeated much later, in 1957, in his lecture entitled, 'The Common Law as the Ultimate Constitutional Foundation' in Jesting Pilate, above n 9, 203.
[130] See Jesting Pilate, above n 9, 39.
[131] Ibid 42.
[132] Ibid.
[133] Ibid 43.
[134] Ibid.
[135] Ibid 51.
[136] Ibid 44.
[137] As assumed in Australia. See ibid 44–47.
[138] Ibid 43. Sir Owen's description of 'governmental power ... in the governed' anticipated the words of Alexander Meiklejohn over a decade later. In the first chapter of Free Speech and Its Relation to Self-Government (1948), 'The Rulers and the Ruled' Meiklejohn explained, '[f]ree men are not non-governed. They are governed–by themselves': at 16. Dixon’s diaries exist for this period (1935–65) and are said to have listed books he was reading. But the diaries are not generally available. See Philip Ayres, 'Dixon Diaries' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court (2001) 222, 224.
[139] Jesting Pilate, above n 9, 44; see above, text accompanying nn 9, 16.
[140] Compare Wait, above n 123, 73 ('it is now difficult to find an Australian constitutional lawyer who still adheres to the doctrine of parliamentary sovereignty') with Julie Taylor, 'Human Rights Protection in Australia: Interpretation Provisions and Parliamentary Supremacy' [2004] FedLawRw 3; (2004) 32 Federal Law Review 57, 59 (quoting Dawson J: 'there can be no doubt that parliamentary supremacy is a basic principle of the legal system which has been inherited in this country from the United Kingdom'); Jeffrey Goldsworthy, 'The Philosophical Foundations of Parliamentary Sovereignty' in Tom Campbell and Jeffrey Goldsworthy (eds), Judicial Powers, Democracy and Legal Positivism (2000), 229–50.
[141] In fact, Sir Owen pointed out in this lecture that 'it may seem remarkable that so long a time should elapse' before the limits of parliamentary supremacy in Australia should be seen. Dixon's application of those limits in his Trethowan judgment, delivered only four years before the lecture, certainly had not been generally foreseen and accepted.
[142] Jesting Pilate, above n 9, 51.
[143] [1951] HCA 5; (1950) 83 CLR 1.
[144] Ibid 193.
[145] [1988] HCA 63; (1988) 166 CLR 79. See also Burns v Ransley [1949] HCA 45; (1949) 79 CLR 101, 110 (the Commonwealth 'has no power to pass a law to suppress or punish political criticism') (Latham CJ, dictum); at 116–8 (reading facts not to support conviction under criminal sedition statute because words of defendant on which the conviction was based were 'not expressive of an intention to effect' the 'purpose of exciting disaffection') (Dixon J, dissenting). Despite an evenly divided High Court in Burns, the conviction was affirmed by the casting vote of Chief Justice Latham: [1949] HCA 45; (1949) 79 CLR 101, 111. But see Michael Coper, 'Tied Vote' in A R Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 672 (suggesting that the statutory authorisation for such a tie-breaking vote by the Chief Justice may be unconstitutional). Justice Dixon's reasoning in his Burns dissent is strikingly reminiscent of that of Judge Learned Hand in Masses Publishing Co v Patten, 244 Fed 535 (SDNY, 1917), in which Judge Hand read an American federal statute narrowly, requiring very specific intentional words of incitement, to avoid a confrontation with fundamental principles of democratic government. Although Judge Hand's decision was reversed by the United States Court of Appeals for the Second Circuit, 246 Fed 24 (1917), there are persuasive reasons for thinking that the Hand Masses opinion has been rehabilitated by the United Supreme Court in Brandenburg v Ohio, [1969] USSC 139; 395 US 444 (1969). See Gerald Gunther, 'Learned Hand and the Origins of the Modern First Amendment Doctrine: Some Fragments of History' (1975) 27 Stanford Law Review 719.
[146] [1988] HCA 63; (1988) 166 CLR 79, 100 (Mason CJ and Deane and Gaudron JJ); 101 (Wilson and Dawson JJ); 104, 115–17 (Brennan J); 117 (Toohey J).
[147] See Nationwide News [1992] HCA 46; (1992) 177 CLR 1, 26–29 (Mason CJ); Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562, [130] (Gummow J) ('appropriate and adapted' to achieving an end within a legislative power).
[148] Justice Toohey, writing extrajudicially in a law review article published contemporaneously with the announcement of the ACTV and Nationwide News judgments, suggested a line of argument that would convert the specific result of Davis and the Nationwide News concurrence into a broad general principle creating a presumption in favour of all 'fundamental common law liberties'. Justice John Toohey, 'A Government of Laws, and Not of Men?' (1993) 4 Public Law Review 158, 170. Justice Toohey's argument has been strongly criticised: see George Winterton, 'Constitutionally Entrenched Common Law Rights: Sacrificing Means to Ends' in Charles Sampford and Kim Preston (eds), Interpreting Constitutions: Theories, Principles and Institutions (1996) 133, 135 ('audacious and imaginative', but 'untenable'); Jeffrey Goldsworthy, 'Implications in Language, Law and the Constitution' in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (1994) 150, 174 (provides 'no support whatsoever'). But the more modest reading of legislative powers to avoid significant, particular infringements of free expression seems far less vulnerable in light of the narrowness of the limitation and the broad and deep recognition of the free speech value throughout the British Commonwealth. See, eg, Attorney-General v Times Newspaper Ltd [1974] AC 273, 315 (Lord Simon of Glaisdale); Attorney-General v The Guardian [1987] UKHL 13; [1987] 1 WLR 1248, 1286 (Lord Bridge, dissenting); SDGMR v Dolphin delivery Ltd [1986] 2 SCR 573, 584.
[149] [1992] HCA 46; (1991) 177 CLR 1, 29–34, 34; see at 88 (Dawson J); 103, 105 (McHugh J).
[150] [1992] HCA 46; (1991) 177 CLR 1, 30–31.
[151] The United States Constitution amend X.
[152] Jesting Pilate, above n 9, 170.
[153] See George Winterton, 'The Communist Party Case' in H P Lee and George Winterton (eds), Australian Constitutional Landmarks (2003) 132; Leslie Zines, Constitutional Change in the Commonwealth (1991) 40–41.
[154] Commonwealth Constitution, s 107 (emphasis added).
[155] Re Richard Foreman & Sons Pty Ltd; Uther v The Federal Commissioner of Taxation [1947] HCA 45; (1947) 74 CLR 508 ('Uther').
[156] Commonwealth v Cigamatic Pty Ltd [1962] HCA 40; (1962) 108 CLR 372.
[157] Uther [1947] HCA 45; (1947) 74 CLR 508; see Cigamatic [1962] HCA 40; (1962) 108 CLR 372, 378. Compare US Term Limits, Inc v Thornton, [1995] USSC 51; 514 US 779, 802 (1995) (Tenth Amendment 'could only "reserve" that which existed before'; quoting Justice Story's treatise, 'the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government').
[158] For reasons not relevant to the argument in the text, the Cigamatic principle has been criticised — because of the difficulty of distinguishing the cases for which the principle requires immunity for the Commonwealth from the generality of situations for which State law does apply to the Commonwealth (such as the law of contracts) and because, with rare exceptions, the Commonwealth does not need a broad immunity as it can protect itself against adverse State legislation through Commonwealth legislation and the supremacy of federal law under section 109. See Re Residential Tenancies Tribunal of New South Wales and Henderson; Ex parte the Defence Housing Authority (1997) 190 CLR 410, 475 (Kirby J, dictum); John Doyle, '1947 Revisited: The Immunity of the Commonwealth from State Law' in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (1994) 47; R P Meagher and W M C Gummow, 'Sir Owen Dixon's Heresy' (1980) 54 Australian Law Journal 25.
[159] Cf re Residential Tenancies Tribunal of New South Wales and Henderson; Ex parte the Defence Housing Authority (1997) 190 CLR 410, 507–08 (Kirby J, dictum) (the State 'could not legislate in a way that would impair the integrity or autonomy of the Government of the Commonwealth'); A R Blackshield, 'The Implied Freedom of Communication' in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (1994) 232, 265 ('if any aspect of Commonwealth institutions is to be "immune" from State laws, that immunity must at least extend to Commonwealth political institutions, and especially to the Commonwealth Parliament.')
[160] Lange [1997] HCA 25; (1997) 189 CLR 520, 562.
[161] Jesting Pilate, above n 9, 51.
[162] See above, text accompanying nn 2–6, 23–53.
[163] Jesting Pilate, above n 9, 51. Although Dixon specifically referred to 'men' and 'lawyers', ibid, it seems fair to assume he was talking about the judiciary as well.
[164] It may seem ironic to associate Sir Owen Dixon with the implied freedom of political communication even obliquely, given the controversial nature of the implication and the identification of Dixon with 'strict legalism' stemming from his lecture on becoming Chief Justice, Jesting Pilate , above n 9, 247, 249. But he was not hostile to implications, see ACTV [1992] HCA 45; (1992) 177 CLR 106, 134–36 (Mason CJ), and it is recognised that his legal thinking was not rigid, see Mason, above n 15, 873; Justice Kenneth Hayne, 'Owen Dixon' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 220. Dixon fully appreciated the riddle posed by the duality of the common law as both source of and subordinate to the Constitution, Jesting Pilate, above n 9, 207–13, and he even saw the occasion for discussing the riddle as an opportunity for playfulness: at 211–13.
[165] See Blackshield, above n 159, 235–39.
[166] In their separate concurring judgment based on the implied (extrinsic) freedom in Nationwide News, Toohey and Deane JJ gave considerable emphasis to this language limiting the heads of legislative power under section 51. See [1992] HCA 46; (1992) 177 CLR 1, 68–69, 79. In deciding that the Constitution contained an implied prohibition protecting political communications, Gaudron J not only pointed to this same language but adopted the very same test as that used by Mason CJ and McHugh J, who were relying upon the federalism (intrinsic) ground of lack of legislative power: at 94–95 ('appropriate and adapted' to a permissible end).
[167] Lange [1997] HCA 25; (1997) 189 CLR 520, 561.
[168] Ibid 564 (emphasis added).
[169] Ibid 562.
[170] Jesting Pilate, above n 9, 44.
[171] Zines, above n 34, 227 ('tone more than substance that seemed to presage a new more legalistic attitude').
[172] Theophanous [1994] HCA 46; (1994) 182 CLR 104, 142 (Brennan J, dissenting)
[173] Ibid 143–44.
[174] Lange [1997] HCA 25; (1997) 189 CLR 520, 565–66.
[175] Theophanous [1994] HCA 46; (1994) 182 CLR 104, 143–44.
[176] Lange [1997] HCA 25; (1997) 189 CLR 520 , 565.
[177] Theophanous [1994] HCA 46; (1994) 182 CLR 104, 143.
[178] Lange [1997] HCA 25; (1997) 189 CLR 520, 565 (emphasis added).
[179] Theophanous [1994] HCA 46; (1994) 182 CLR 104, 144.
[180] Ibid.
[181] Lange [1997] HCA 25; (1997) 189 CLR 520, 565.
[182] Ibid 143.
[183] Zines, above n 34, 227. Compare Sir Anthony Mason, 'The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience' [1986] FedLawRw 1; (1986) 16 Federal Law Review 1, 28 with Sir Gerard Brennan, 'A Tribute to Sir Anthony Mason' in Cheryl Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996) 13.
[184] Judge of the Federal Court of Australia.
[185] Susan Kenny, 'The High Court on Constitutional Law: The 2002 Term' [2003] UNSWLawJl 10; (2003) 26 University of New South Wales Law Journal 210, 217.
[186] Philip Bobbitt, Constitutional Fate: Theory of the Constitution (1982), 43; Stephen M Griffin, American Constitutionalism: From Theory to Politics (1996) 150; Robert C Post, 'Theories of Constitutional Interpretation' in Post (ed), Law and the Order of Culture (1991) 20; David A Strauss, 'Common Law Constitutional Interpretation' (1996) 63 The University of Chicago Law Review 877, 879.
[187] Kenny, above n 185, 217.
[188] Ibid 219.
[189] Ibid. Justice Kenny further observes that the evolution is not always 'completely rational or satisfactory', is 'more deliberate and self-conscious,' and is 'open' to the Court to 'depart from and overrule previous authorities', when the Court is persuaded 'for some sufficient reason.'
[190] [2002] HCA 57; (2002) 212 CLR 1.
[191] Kenny, above n 185, 218. As interpreted and applied by Kenny J, a controlling question was whether this newly created common law doctrine did or did not 'trespass into the constitutionally protected freedom of communication in matters of government and politics': at 218.
[192] Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1, 29–40.
[193] Ibid 29.
[194] See above, text accompanying nn 174–81.
[195] See Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1, 40–41. Chief Justice Gleeson and Justice Hayne concluded that the procedural setting of Roberts v Bass made it an inappropriate case for developing the common law under Lange ((2002) [2002] HCA 57; 212 CLR 1, 9, 79); Kirby J concurred in the plurality judgment for the same reasons: at 71; Callinan J dissented on the ground that the Lange 'defence' was not available and would fail if it were: at 107.
[196] [1997] HCA 31; (1997) 189 CLR 579; see above, text accompanying nn 40, 50, 53.
[197] Lenah Game Meats (2001) 208 CLR 199, 259 (Kirby J). A very interesting statistical analysis of the Gleeson High Court shows Kirby J to be a non-representative Justice on the basis of his judgments: Andrew Lynch, 'The Gleeson Court on Constitutional Law: An Empirical Analysis of Its First Five Years' (2003) 26 Uiversity of New South Wales Law Journal 32, 47–49. In the article, Lynch speculates about whether Kirby's frequent non-alliance with the other Justices earns him the label of 'Great Dissenter'; but, using Oliver Wendell Holmes as the model bearer of that label, he suggests waiting for the judgment of time to determine whether the Kirby dissents, like those of Holmes, tend to turn into majority views: at 48.
[198] Justice Kenny provides other examples outside the political communication area, and her position was that the common law was the dominant methodology in constitutional law, generally, in 2002.
[199] Chief Justice Gleeson opined that the freedom was not a proper balancing factor for a trial judge's discretionary decision whether or not to issue the injunction: Lenah Game Meats (2001) 208 CLR 199, 219–20. Justice Callinan, dissenting, expressed a fundamental disagreement with Lange and the judicial creation of the implied freedom and announced his intention to resist its expansive application: at 330–31.
[200] [2004] HCA 39; (2004) 220 CLR 1.
[201] See below, text accompanying nn 217–25.
[202] [2004] HCA 41; (2004) 220 CLR 181.
[203] Ibid 195 (Gleeson CJ, discussing ACTV and Levy); 206-7, 209-11, 212, 218-9, 219, 220 (McHugh J, discussing Nationwide News, Langer, ACTV, Muldoney, Levy, McClure, Kruger); 233, 240, 242 (Gummow and Hayne JJ, discussing Langer, McClure, ACTV); 252-3, 253-4 (Kirby J, discussing ACTV, Langer); 282-3 (Callinan J, discussing ACTV, Kruger); 299 (Heydon J, discussing ACTV).
[204] [1997] HCA 25; (1997) 189 CLR 520, 565–66.
[205] Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1, 102.
[206] Zines, above n 15, Ch 17 (Methods, Techniques and Attitudes); David A Strauss, 'Common Law Constitutional Interpretation' (1996) 63 The University of Chicago Law Review 877, 888 (with respect to American constitutional law: 'the common law model is . . . the best way to understand what we are doing; the best way to justify what we are doing; and the best guide to resolving issues that remain open'). Cf Fiona Wheeler, 'Due Process, Judicial Power and Chapter III in the New High Court' (2004) 32 Federal Law Review 205 (describing the evolutionary development of 'due process' even as the High Court's activism waxes and wanes).
[207] Kenny, above n 185, 222; see Strauss, above n 206, 880.
[208] See Zines, above n 15, 433–44.
[209] Australian Constitution ss 6, 49, 62, 64, 83; see also ss 1, 61, 62 cited in ACTV [1992] HCA 45; (1992) 177 CLR 106, 137.
[210] [1997] HCA 25; (1997) 189 CLR 520, 567.
[211] Ibid.
[212] See Zines, above n 15, 433–44; Stone, above n 43. The assimilation of the common law methodology and sundry versions of 'originalism' will often be complex and controversial. See Jeffrey Goldsworthy, 'Originalism in Constitutional Interpretation' [1997] FedLawRw 1; (1997) 25 Federal Law Review 1, 28–35; Justice Antonin Scalia, A Matter of Interpretation: federal courts and the law: an essay (1997) 37–40.
[213] See, eg, Eric Barendt, Freedom of Speech (1985) 8–23; Frederick Schauer, Free Speech: A Philosophical Enquiry (1982) 15–72.
[214] Freedom of speech giving rise to personal autonomy can also be related to the self-government argument. Dr Adrienne Stone makes this point in 'Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication', above n 6, 391–99. In discussing a possibly expansive view of the freedom of political communication, Dr Stone drew upon the debate between American scholars, Robert Post, 'Meiklejohn's Mistake: Individual Autonomy and the Reform of Public Discourse' (1993) 64 University of Colorado Law Review 1109, and Owen Fiss, 'Free Speech and Social Structure' (1986) 71 Iowa Law Review 1405, who were arguing for rival free speech conceptions which instrumentally serve democracy. Dr Stone noted that she has 'not discussed regulation of pornography and hate speech . . . because it seems unlikely that the Australian courts would regard these as political communication': Stone, above n 6, 399 n 136. For the most part, obscene language, pornographic pictures, and sexually erotic dancing are protected as free expression, if they are, because of the intrinsic freedom of individuals to say and hear what they please for their own fulfilment, pleasure, or edification. These goals for free expression, too, can be characterised in terms of autonomy, but that is not the autonomy of Alexander Meiklejohn or the Australian Constitution. So, it is understandable that the Australian courts would not be expected to protect pornography as political communication. Different reasons would be required for excluding hate speech, which is often impossible to disentangle from the kind of 'emotional, upsetting or affronting' words that may be protected in Australia, as well as in the United States: Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, [254] (Kirby J). Cf Virginia v Black, [2003] USSC 2763; 538 US 343 (2003); RAV v City of St Paul, [1992] USSC 99; 505 US 377, 414 (1992) (White J)( 'expressive conduct that causes only hurt feelings, offense, or resentment … is protected by the First Amendment'); 436 (Stevens J) (if expression is not threatening, an individual 'is free to burn a cross … to express his views about racial supremacy'); Henry Louis Gates Jr 'Let Them Talk' (1993) 209(12) The New Republic 37, reviewing Mari Matsuda et al, Words That Wound (1993).
[215] Lange [1997] HCA 25; (1997) 189 CLR 520, 557–62; ACTV [1992] HCA 45; (1992) 177 CLR 106, 141–42 (Mason C J).
[216] See cases discussed above, in text accompanying nn 190–203. Writing before most of these cases were decided, Dr Adrienne Stone observed 'a discernable trend towards narrowing the coverage of the freedom' (Stone, above n 6, 383–400); but she nevertheless presented strong arguments supporting a broad reading of the implied freedom (at 380–90).
[217] [2004] HCA 39; (2004) 220 CLR 1. See Adrienne Stone and Simon Evans, 'Freedom of Speech and Insult in the High Court of Australia' (2006) 4 International Journal of Constitutional Law 677; William Buss, 'Constitutional Words About Words: Protected Speech and "Fighting Words" Under the Australian and American Constitutions' (2006) 15 Transnational Law and Contemporary Problems 489.
[218] See, eg[2004] HCA 39; , (2004) 220 CLR 1, 14 (McHugh J).
[219] Justice McHugh held that the statute as applied to this speech was unconstitutional (ibid 32); Gummow and Hayne JJ in a joint judgment (at 63) and Kirby J (at 80), all read the statute narrowly, indicating that a broader reading applied to the defendant's speech would have been unconstitutional.
[220] Ibid 21.
[221] Ibid 102.
[222] Ibid 115.
[223] Ibid 54 ('insults are a legitimate part of the political discussion protected by the Constitution').
[224] Ibid 78 ('insult and invective have been employed in political communication at least since the time of Demosthenes').
[225] Ibid 91 ('Australian politics has regularly included insult and emotion, calumny and invective, in its armoury of persuasion').
[226] Meiklejohn, above n 1, 39, 63.
[227] See APLA (2005) [2005] HCA 44; 79 ALJR 1620, 219 ALR 403.
[228] [1997] HCA 25; (1997) 189 CLR 520, 562.
[229] Jesting Pilate, above n 9, 51.
[230] [1997] HCA 25; (1997) 189 CLR 520, 562.
[231] See above, text accompanying n 42.
[232] Harry Kalven, 'The New York Times Case: A Note on "the Central Meaning of the First Amendment"' (1964) Supreme Court Review 191, 221 n 125 (quoting Meiklejohn for the proposition that NY Times[1964] USSC 40; , 376 US 254 (1964) was 'an occasion for dancing in the streets').
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