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Stone, Adrienne --- "Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication (2001) 25" [2001] MelbULawRw 13; (2001) 25(2) Melbourne University Law Review 374

Rights, Personal Rights And Freedoms: The Nature Of The Freedom Of Political Communication


[This article considers an often repeated statement that the ‘freedom of political communication is not a personal right’. Three conventional understandings about the freedom can be traced to this idea: (1) that the freedom covers only a limited range of ‘explicitly’ political communication; (2) that protection of individual autonomy (though a common justification for general free speech guarantees) is of no relevance to the freedom; and (3) that the freedom of political communication, like other constitutional doctrines, has no direct application to the common law. In this article, it is argued that any plausible understanding of this statement that the freedom is not a ‘personal right’ does not lead to the conclusions just stated. On the contrary, the basic reasoning underlying the freedom of political communication requires coverage of a broad range of communication, is at least consistent with some level of concern for individual autonomy, and requires that the common law be subject to the Constitution in much the same way as legislative and executive action.]



The freedom of political communication is often described as an ‘implied constitutional right’ or simply an ‘implied right’.[1] The High Court, however, has been rather wary of that description, usually preferring to describe it as a ‘freedom’ or ‘guarantee’.[2] The Court has been particularly adamant that the freedom is not a ‘personal’ right’[3] and has drawn some important conclusions from this statement, including conclusions as to the relationship between the common law and the Constitution.

In this article, I consider why the Court is wary of the description ‘right’ and, in particular, why it insists that the doctrine does not confer ‘personal rights’. I argue that this statement can be understood in two ways. First, it means that the freedom exists to support a certain system of government[4] rather than to protect values more closely associated with the individual, such as autonomy. Thus the freedom could be described as ‘institutional’[5] (its rationale being protection of certain institutions of government) rather than ‘personal’. Secondly, in saying that the freedom is not a ‘personal’ right, the High Court also means that the freedom operates in only limited ways. It is a ‘negative’ rather than a ‘positive’ right,[6] which means that it provides freedom from interference, rather than the right to engage in certain activities or to be provided with certain benefits. Further, it has a ‘vertical’ rather than ‘horizontal’ operation, which means that it is concerned with relationships between the individual and the state rather than relationships between individuals.

I will argue, however, that these ideas have been misunderstood by the High Court and Australian courts in general. First, I will address the conclusions that the courts have drawn from the institutional rationale for the freedom. In Part II, I will address the limits placed on the coverage[7] of the freedom. Australian courts have drawn the category of ‘political communication’ very narrowly to cover only certain, very obviously political, kinds of communication.[8] I will argue that — even taking into account the narrow concept of ‘representative and responsible government’ that the High Court has adopted[9] — a much wider range of communication is relevant to the proper functioning of government at the federal level.

More fundamentally, in Part III I will challenge the generally accepted view that the institutional rationale of the freedom of political communication precludes consideration of ‘personal’ values like autonomy, by reviewing arguments that respect for autonomy is a necessary part of democratic government. The doctrinal consequences of these arguments have yet squarely to confront the courts. However, as I will explain, the place of autonomy as a value relevant to the freedom of political communication is likely to make an important difference to judicial attitudes towards matters such as campaign finance legislation.

In Part IV, I will address the consequences of the idea that the freedom of political communication is a ‘negative’, ‘vertical’ right. I will show that the High Court’s misunderstanding of these concepts has led it to make one serious conceptual mistake. This misconception leads the High Court to draw the conclusion that the freedom is primarily addressed to legislative and executive action and thus, as a general rule, does not directly apply to the common law. I will argue that this conclusion is not supported by its premises and is ultimately contradicted by the Court’s simultaneous assertion that common law rules must conform to constitutional requirements.[10] I will suggest that the High Court ought to acknowledge that, at least in cases like Lange,[11] the common law is subject to constitutional requirements in much the same way as are laws made by the legislature and executive. I conclude by considering some possible consequences of, and objections to, my arguments.


One way to categorise rights is to distinguish between rights that serve interests closely identified with the holder of the right, such as autonomy, ‘self-realisation’, human dignity or the wellbeing of individuals (which could be described as ‘personal’ rights), and ‘rights’ that serve larger interests.[12] This distinction provides one explanation for the statement that the freedom of political communication is not a ‘personal right’. By its very nature, the freedom of political communication falls squarely into the category of rights that serve larger interests. It is directed towards protecting a larger interest:[13] the protection of representative and responsible government, or, as the Court has insisted, particular institutions of that form of government identifiable in the text of the Constitution.[14] Thus, the freedom protects communication that enables voters in federal elections (and constitutional referenda) to exercise a ‘true choice with “an opportunity to gain an appreciation of the available alternatives”’[15] and that ensures that the federal executive can be held responsible to the federal Parliament.[16]

The freedom of political communication thus relies upon a very specific justification that is institutional rather than personal. This feature of the doctrine seems to have brought the Australian courts to the conclusion that the category of political communication is very narrow. As the law currently stands, ‘political communication’ apparently includes only discussion of laws and policy of the federal Parliament, the conduct of members of Parliament,[17] and non-federal political affairs (such as the political affairs of a state) that are very closely related to federal matters.[18] However, as I will now show, that conclusion is not compatible with the freedom’s basic justification.

A Coverage — The Category of Political Communication

1 Current Boundaries

In the early cases, the coverage of the freedom of political communication was often described in rather vague terms as ‘governments and political matters’ or some similar concept,[19] or was described broadly.[20] Since Lange, there has not been an authoritative High Court statement on the issue and most lower court decisions have avoided the question of coverage by finding that the legislation in question is valid as ‘reasonably appropriate’ regulation.[21] However, the principal thrust of Lange was to confine the freedom by reference to constitutional text,[22] and, in keeping with that conservative approach, there is a discernable trend towards narrowing the coverage of the freedom. I provide four examples:

  1. In Levy v Victoria, decided shortly after Lange, the two High Court Justices who addressed the issue found that protest against a State law limiting duck-hunting had no significance for representative and responsible government by the federal Parliament.[23] This finding departed from an earlier majority position that the freedom would generally cover discussion of State political matters.[24]
  2. In Brown v Members of the Classification Review Board of the Office of Film and Literature Classification,[25] a majority of the Full Court of the Federal Court found that a censored student newspaper article advocating shoplifting and containing a critique of capitalism[26] would not bear on the kind of choice a reader would make at a federal election and therefore contained no relevantly political message.[27]
  3. In John Fairfax Publications Pty Ltd v Attorney-General (NSW), the New South Wales Court of Appeal considered legislation requiring certain appeals to be held in camera.[28] The majority ultimately concluded that the role of the Attorney-General in initiating appeals brought the legislation within the scope of the freedom,[29] and in this respect the case is a rare exception to the narrowing trend.[30] However, in other respects, the majority judgment exhibited the tendency to define political communication narrowly. In the course of its reasoning, the majority stated that ‘[t]he conduct of courts is not, of itself, a manifestation of any of the provisions relating to representative government upon which the freedom is based.’[31] It therefore rejected the argument that the discussion of the conduct of courts is, as a general rule, covered by the freedom.
  4. Finally, in Australian Broadcasting Corporation v Hanson,[32] the Queensland Court of Appeal upheld the grant of an injunction to prevent the broadcast of a song satirising Pauline Hanson, a controversial federal politician, on the basis that the song contained no communication relevant to the freedom of political communication. The Court refused to recognise the existence of a political communication issue on the grounds that the song was ‘grossly offensive’ and ‘part of an apparently fairly mindless effort at cheap denigration’.[33]

2 Critique

It may be possible to defend the results in each of these cases.[34] There were countervailing interests to be weighed against the freedom of political communication[35] that could perhaps have justified the regulation of the speech under the second limb of the Lange test.[36] Indeed, in Levy, in which only two judges addressed the question of coverage, this was the principal basis of the decision.[37]

However, the conclusion that the communication at issue in each of these cases had no political content[38] is very weak. In each of these cases, the communication in question bore some relation to a central concern of the freedom of political communication, namely the casting of a free vote for federal parliamentary representatives.[39]

In Levy, an element of the protesters’ concern was the environmental damage caused by the destruction of endangered species.[40] The federal Parliament has considerable power to regulate environmental matters through, among others, the external affairs power,[41] the trade and commerce power[42] and the power to make conditional grants to State governments.[43] So, by raising awareness of the destruction of endangered species, the protesters could affect the attitudes of voters towards matters over which the federal government has influence and thus their votes in federal elections.[44]

Indeed, confining the freedom to matters relevant to federal politics is not a very significant limitation. The federal Parliament can use its powers in pursuit of an almost unlimited range of policies,[45] and, given the financial dominance of the Commonwealth, it is difficult to imagine any matter on which the Commonwealth could not seek to assert itself, even if only through a ‘tied’ (that is, conditional) grant to a State pursuant to s 96.[46] Discussion of the political affairs of a State will, therefore, usually have some relevance to federal politics even if it is only because of the possibility of some form of federal intervention.

In Brown, the second case discussed above, the message was a radical challenge to ‘capitalism’, a vision of social order of importance in a Western industrialised nation like Australia. Although there is no discussion of any particular law or policy proposal, this kind of a challenge does invite voters to rethink the overall direction of government and thus could conceivably affect their federal electoral choices.[47]

In Fairfax, the majority concluded that the general discussion of conduct of courts is not covered by the freedom.[48] In so far as the statement applies to federal courts, it is easy to dispute. Federal courts are established under federal legislation, much of their administration is determined by federal legislation and regulation, and judges are appointed by the federal executive. To that extent, then, the conduct of the federal courts reflects the state of federal law and federal executive policy.

Further, there is another link between federal courts and federal government policy that is shared with the State courts. Both federal and State courts administer federal statutes, and thus the conduct of courts reveals the implications of a government’s enactment of legislation or support for existing legislation. For example, the federal law limiting the power of the Federal Court to review decisions of the Refugee Review Tribunal reflects federal policy on refugee issues.[49] A full understanding of the effect of that policy can only be understood through a thorough examination of the conduct of the judicial review process. Where State courts interpret federal statutes, they are similarly involved in the administration of federal policy, the discussion of which is relevant to a full understanding of the conduct of the federal government.[50] Even the common law role of the courts is relevant to government policy, at least in areas over which the Commonwealth has some power. Without an understanding of how the common law operates, it would be hard to formulate views about where the Parliament should intervene.

The reasons for the dismissal of the Hanson case are similarly unconvincing. Ms Hanson’s political opponents accuse her of racism, and her views on indigenous affairs (especially native title) and Asian immigration are among her most controversial. Although the banned song contains only sparse commentary on her political platform, it does contain some strongly critical statements — perhaps most pertinently, ‘I’m a back door man for the Ku Klux Klan with very horrendous plans’[51] — that were clearly inspired by, and meant to inspire in others, hostility towards her and her politics. The relevance of this kind of comment on a member of Parliament to the federal electoral process need hardly be explained. The Queensland Court’s reservations really relate to the insulting and offensive tone of the communication, and, although this fact might make regulation of it easier to justify, it does not eradicate the political significance of the message.[52] The offensive nature of the portrayal of Hanson could be seen as part of its political nature, adding strength through its capacity to shock and perhaps amuse.[53]

3 New Categories of Political Communication?

The concept of political communication therefore needs a new and more generous definition. The redrawing of the boundaries should be guided by the underlying logic of the freedom of political communication — by consideration of what kind of communication must be protected in order for the institutions protected by the freedom to function properly. Considered in this light, there are at least four categories of communication that could be included in the concept of ‘political’ communication.[54] Each of these categories would extend the concept further than it is currently drawn and, in some cases, would expand the concept dramatically.

(a) Explicitly Political Communication

The first category can be termed ‘explicitly political’ communication. Robert Bork developed this category in his attempt to confine the coverage of freedom of speech under the First Amendment:

The category of protected speech should consist of speech concerned with governmental behavior, policy or personnel, whether the governmental unit involved is executive, legislative, judicial or administrative. Explicitly political speech is speech about how we are governed, and the category therefore includes a wide range of evaluation, criticism, electioneering and propaganda.[55]

What distinguishes this kind of speech is that it is substantively about government. This is a good starting point for the Australian freedom, because these matters are obviously relevant to a voter’s choice in federal elections and the other institutions protected by the freedom. Of course, given that the freedom only protects certain federal institutions of representative and responsible government, Bork’s category would have to be modified to cover only communications about the behaviour, policy and personnel of the federal Parliament or federal executive or about the referendum procedure. Most obviously, this category would cover discussion of current federal laws, proposed referenda, policies of government and opposition parties, the business of the federal Parliament and the public conduct of members of Parliament.

The adoption of this category would extend the coverage of the freedom at least to the discussion of the political beliefs of a member of Parliament, raised by the Hanson case. The category ought also to extend to some discussion of the conduct of courts — the issue raised in Fairfax. For the reasons I have explained, although courts are not themselves institutions protected by the freedom of political communication, sometimes discussion of courts closely reflects the policy of the federal government and the state of its laws.[56] At the very least, then, discussion of the operation of the federal courts, the appointment of federal judges and the interpretation of federal statutes (by State or federal courts) amounts to discussion of the behaviour of the federal government.

(b) Potential Subjects of Government Action

The first category might be taken to exclude matters that are not the subject of an existing law or of the current attention of the federal Parliament but which might become the subject of a law or policy in the future. On this view, the freedom would not cover discussion of issues like changing the Australian flag, reintroducing national service, abolishing the States or reintroducing the death penalty.[57]

In my view, the distinction between the categories of ‘explicitly political communication’ and ‘potential subjects of government action’ is rather difficult to draw because the fact that some issue is not currently the subject of some action might indicate satisfaction with the status quo[58] or represent a failure to appreciate the need for governmental action. Either way, the failure to make a policy proposal or to take action will often reveal the nature of governmental behaviour just as much as if a government has acted or some party or person in the Parliament has proposed to act. In any event, the discussion of issues before they reach the political agenda has intrinsic value. A voter’s understanding of many issues, especially the most complex ones, is likely to be developed over time and cannot realistically be left to the point at which the judgment of voters is to be exercised.

Therefore, to make the matter perfectly clear, I suggest that we should recognise that the freedom of political communication covers a second category of communication: communication about issues that could become matters of federal law or policy or, in some way, the subject of federal governmental action. Although this extension simply anticipates a change in the political agenda, it will broaden the category of political communication greatly. The federal Parliament considers a wide array of issues, and the breadth of federal government involvement in modern life, subject to some commonsense limitations,[59] means that it is almost impossible to be sure that any matter will not become the subject of federal political debate.[60] Who would have predicted, before the tragic shootings at Port Arthur in April 1996, that gun control would become a federal issue? Or that sexual privacy would become a federal issue, as it did following a citizen’s successful appeal to the United Nations Human Rights Committee?[61]

To return to the examples discussed above, this second category would allow the coverage of the matters at issue in Levy. The point in Levy is that the criticism of the State law is a matter on which the federal Parliament could choose to respond,[62] thus making the matter one relevant to federal government policy. Second, to return to the issue raised by Fairfax, this category would also extend coverage to some discussion of State courts not included in category one. In areas of concurrent State and federal power, the federal Parliament will have the power to intervene to override interpretations of the common law by State courts, or to render State laws invalid. The conduct of State courts in these areas is a matter over which the Commonwealth could act and therefore, on the analysis just advanced, discussion of this conduct comes within the freedom of political communication.

(c) Communication That Influences Attitudes towards Public Issues

The third category of political communication suggested by the basic logic of the freedom of political communication would include discussion of matters that are not themselves likely to be the subject of law or government action, but might nonetheless influence the attitudes of voters toward the government. Of the cases discussed above, this category would expand the coverage of the freedom to matters at issue in Brown (political theory touched on in the censored article) and, more generally, would greatly expand the category of political communication. Consider the issues underlying two recent controversies: Prime Minister Howard’s refusal to issue a formal national apology to the ‘Stolen Generations’[63] and the federal government’s proposal to amend the Sex Discrimination Act 1984 (Cth) to allow States to deny single and lesbian women access to State-funded in-vitro fertilisation (‘IVF’) services.[64] Debate over the Stolen Generations has touched on questions of historical fact (the numbers of children removed under the policy, the nature of their removal and their subsequent treatment),[65] competing interpretations of Australian history[66] and questions of collective and individual responsibility.[67] At the heart of the IVF debate are questions of appropriate parenting,[68] the ‘rights’ of adults to be parents and of children to have parents of a certain kind,[69] the use of reproductive technologies generally,[70] and, on some views, federalism.[71] In these debates, questions of religion, moral philosophy, history, medical science and sociology all arise. Voters’ understanding of and attitudes to these matters can affect their attitudes on questions of public policy, their attitudes to the Howard government, and ultimately their vote at a federal election.

(d) Communication That Develops Qualities Desirable in a Voter

Finally, and most broadly, it is possible to argue that communications that develop among voters the capacities or qualities necessary to make a ‘true choice’ in a federal election are included within the ‘political communication’ category. The potential for this category to expand the coverage of the freedom of political communication is particularly dramatic. Alexander Meiklejohn, the foremost exponent of self-government arguments for the First Amendment, included education, science, philosophy, art and literature within the category of political communication.[72]

Some of these matters (philosophy and science most clearly) would be included in the third category above. However, the fourth category covers some communication not included in the third. It includes communication that is relevant to democratic government because of the qualities it develops in the citizenry. Meiklejohn argued for the coverage of matters that help the voter ‘acquire the intelligence, integrity, sensitivity, and generous devotion to the general welfare that, in theory, casting a ballot is assumed to express.’[73] In short, he argued, ‘the people do need novels and dramas and paintings and poems, because they will be called upon to vote.’[74]

4 Defining Political Communication — Can the Concept Be Limited?

The breadth of these categories suggests a difficulty that has attended other attempts to define the concept of ‘political communication’: if the concept is infinitely expandable, it becomes meaningless.[75] Partly because of this problem, many First Amendment scholars have criticised attempts to justify freedom of speech solely with the argument from democratic government.[76]

The Australian High Court, however, cannot escape the task, because it developed the freedom of political communication to serve precisely that purpose. For those wanting to limit the concept, Bork’s argument that political speech should only include ‘explicitly political’ speech will probably seem very attractive. Although it is not a very influential First Amendment theory,[77] it looks like a more promising theory of the freedom of political communication, given the limited nature of the Australian doctrine.

The principal virtue of Bork’s argument is that it does draw a line, thus ending what he calls the ‘analogical stampede’ that threatens the viability of the concept.[78] He acknowledges that wherever the line is drawn there will be hard cases, but argues:

Any theory of the first amendment that does not accord absolute protection for all verbal expression, which is to say any theory worth discussing, will require that a spectrum be cut and the location of the cut will always be, arguably, arbitrary. The question is whether the general location of the cut is justified.[79]

There is much to be said for drawing the line somewhere. At their extreme, arguments about what is necessary to protect democratic government (or even just free voting in federal elections) can be quite implausible. Bork makes the point:

I agree that there is an analogy between criticism of official behavior and the publication of a novel like Ulysses, for the latter may form attitudes that ultimately affect politics. But it is an analogy, not an identity. Other human activities and experiences also form personality, teach and create attitudes just as much as does the novel, but no one would on that count, I take it, suggest that the first amendment strikes down regulations of economic activity, control of entry into a trade, laws about sexual behavior, marriage and the like.[80]

In the context of the freedom of political communication, the need to draw a line seems at least as pressing. The concept of what is necessary for the protection of responsible and representative government is open to very broad interpretation. Further, because there is no text that mentions ‘speech’ or ‘communication’ it would be especially easy to argue for the coverage of non-communicative activity.

Nonetheless, there is some question as to whether Bork draws the line in even approximately the right place. There are doubts voiced in the United States as to whether focusing on government behaviour neglects the role that private bodies play in public affairs.[81] A further concern is that, even supposing Bork has correctly identified the speech that should count as ‘political’, the line should be drawn more generously to allow for the possibility of error,[82] especially given difficulties that courts might experience in distinguishing between political and non-political speech.[83]

Further, in the Australian context at least, there are good reasons to include communications in the second category (potential subjects of government action) and the third category (communication that influences attitudes towards public issues) in the concept of political communication. First, in these cases the analogy to explicitly political communication is relatively strong. With these communications, it is the substance of communication that helps voters assess a government and determine their vote. By contrast, communications in the fourth category relate to the vote more indirectly. They contribute to the development of certain qualities like open-mindedness, tolerance and the capacity for critical thinking; these qualities in turn affect the voter’s response to more overtly political communication.[84]

Moreover, it is not even obvious that explicitly political communications ought to be the touchstone against which all other communication is assessed. Under the freedom of political communication, the overriding concept is what enables electors to make a ‘true’ electoral choice.[85] Taking explicitly political communication as the starting point seems to assume that it is the most important communication for ensuring free voting in a federal election. However, other kinds of communication might be at least as important as explicitly political speech, or even more so. For example, people may form their political opinions by discussion of matters not on the political agenda, including matters like religion and philosophy that develop more fundamental commitments. Again, this point counsels the inclusion of the second and third categories in the concept of political communication.

Thus, if we take the logic of the freedom of political communication seriously, the concept of political communication is very broad. It may be possible to place some limits on it, such as the exclusion of communications whose only relevance lies in their capacity to develop qualities in the citizenry that assist in the exercise of the vote. However, the concept of political communication covers a far broader range of communication than the Australian courts currently recognise. Indeed, in this respect the courts would do well to return to the pre-Lange position. In Theophanous, Mason CJ, Toohey and Gaudron JJ recognised that ‘what is ordinarily private speech may develop into speech on a matter of public concern with a change in content, emphasis or context’[86] and stated:

‘[P]olitical discussion’ includes discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office [and] ... ‘refers to all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about.’[87]

Most importantly for this argument, stating that the freedom of political communication is not a ‘personal’ right provides few obvious limitations. Despite its apparently political or ‘institutional’ nature, much apparently non-political communication is relevant to that rationale for the freedom.[88]


I have so far assumed that the institutional rationale for the freedom of political communication excludes other ‘non-political’ values sometimes advanced for freedom of speech. Of the traditional free speech justifications,[89] it seems that the only relevant arguments are those that relate to the role of freedom of speech in protecting democratic government[90] (or self-government[91]). I now wish to challenge that assumption.

Individual autonomy is a value often advanced as a justification for freedom of speech.[92] Freedom of speech protects individual autonomy by allowing individuals to form their own opinions about their beliefs and actions.[93] This argument seems clearly inappropriate for the freedom of political communication, as it falls into the ‘personal’ category rather than the ‘institutional’ category. However, arguments for autonomy and arguments for democratic government are rather closely linked, and it is possible to draw similar links between autonomy and the apparently narrower justification behind the Australian doctrine.

A Autonomy as Instrumental to the Achievement of Representative and Responsible Government

Perhaps the most obvious way in which autonomy might be relevant to the freedom of political communication is its instrumental role in promoting representative and responsible government. It is easy to see that some protection of individual autonomy is required by the institutional rationale for the freedom: people need to have free access to the information necessary to make free choice at elections. Stated at this level of generality, the point is uncontroversial. Even critics of ‘autonomy’ as a free speech rationale accept that autonomy should be protected where necessary to ensure the appropriate exercise of the citizen’s political function.[94]

However, if we attempt to be more specific, even this seemingly uncontroversial point raises difficulties, because opinions differ as to how the protection of autonomy relates to the exercise of the vote. This matter is the subject of a deep schism in modern American free speech theory: the divide between theorists who place emphasis on the quality of public debate and are sympathetic to government intervention in order to promote a rich and balanced debate[95] and free speech theorists who view such intervention with great hostility.[96]

The two theories divide sharply on the issue of ‘speaker autonomy’ — that is, on the freedom of the individual to participate in public debate as a speaker. For the theorists who argue for a ‘rich and balanced’ debate, speaker autonomy has a relatively small role as a free speech value. To these theorists, ‘[w]hat is essential is not that everyone shall speak, but that everything worth saying shall be said.’[97] Further, they are concerned by the capacity of social structures to impede the rich public debate required for democratic government.[98] Therefore, they would allow a relatively wide scope for the state to intervene to ensure fairness and balance in public debate. This may require interference with the autonomy of the speaker, but ‘[s]ometimes we must lower the voices of some to hear the voices of others.’[99]

On the other hand, the more traditional First Amendment conception of the relationship between democratic government and public debate requires a robust and vigorous debate[100] (rather than a restrained and fair one) and is characterised by hostility to government attempts to correct distortions in public debate.[101] One prominent argument for this position is Frederick Schauer’s that the consequences of a poor government decision are particularly serious and that the risk that government intervention poses to free speech outweighs any possible benefit to be derived from regulation designed to enhance public debate.[102] This position in turn requires more freedom for the individual to participate in public debate and thus more protection of the autonomy of the speaker.

B Autonomy as Intrinsic to Democracy

A stronger version of the argument is that democratic government presupposes or logically implies the autonomy of citizens. On this view, respect for autonomy is an essential aspect of democratic government and thus must be protected irrespective of the value’s instrumental role. In developing his autonomy-based argument for freedom of speech,[103] Thomas Scanlon wrote that the legitimate democratic state is one that regards individuals as ‘equal, autonomous, rational agents’.[104] So while it might be conceivable that a state might chose to treat its citizens otherwise, ‘[t]hese actions would have to be justified on some other ground (eg, utilitarian) and the claim ... to be obeyed would not be that of a legitimate government in the usual (democratic) sense.’[105]

To translate the argument into the Australian context, the argument would be that the system of representative and responsible government instituted by the Constitution logically requires, or is premised upon, some respect for the autonomy of the individual. Such an argument would bring with it the consequence that the concept of personal autonomy would guide the interpretation of the freedom of political communication, even when personal autonomy is not instrumental to the protection of representative and responsible government.

This is an ambitious and perhaps startling argument, especially given the High Court’s insistence that the freedom of political communication is governed by constitutional text rather than ‘external’ political principles or theories.[106] I will therefore set out the argument in two steps. First, I will review a prominent argument that the democratic government rationale for freedom of speech entails some concern for individual autonomy. Then I will suggest how this idea might be relevant to the freedom of political communication.

1 Autonomy and Democratic Government

One version of the argument, put by Robert Post, is that a commitment to autonomy is included within the democratic government (or, as he prefers it, ‘self-government’[107]) rationale.[108] Professor Post’s argument is that the ‘internal logic of self-government’[109] requires individuals to see collective decisions as connected to their own self-determination. That is, they must have a sense of participation in the process and, although they might not agree with all majoritarian decisions, they must identify with and have a sense of the legitimacy of the government.[110] Such identification, he argues, requires more than voting, even if the state provides citizens with information relevant to their vote. It requires participation in a free public discourse.[111]

To make his point, Post asks us to imagine a society in which voters had unlimited access to information relevant to their electoral choices. That information, however, is provided by the state, and voters are not permitted to discuss these issues among themselves nor add to the information provided to others.[112] In such a society, he says, ‘[i]ndividuals ... feel completely alienated from these decisions. They do not identify with them and instead feel controlled and manipulated by the external force of the collectivity’.[113]

Post’s point is not, however, limited to how individuals feel about government. He also makes the stronger point that, where the conditions of public debate are too greatly controlled, voters are inappropriately controlled and thus self-government is undermined. Self-government requires not only that there be a debate of public issues but that citizens can contest the terms of that debate. If the state determines the conditions under which debate is conducted, this necessarily requires the state to impose its own view of what is appropriate public debate — a matter on which there are no ‘neutral’ or generally agreed standards.[114] On the comparison of public debate with a town meeting, an analogy Meiklejohn famously employed to justify governmental control of the conditions of public debate,[115] Post writes:

Public control over the presentation and characterization of issues within a town meeting seems unproblematic because of a shared agreement concerning efficient institutional function and procedure. But within democratic life generally such an agreement cannot be assumed without concomitantly diminishing the arena for self-determination. ... ‘[P]olitical conflict is not like an intercollegiate debate in which the opponents agree in advance on the definition of the issues’ ...[116]

His conclusion is that autonomous participation in public debate is a necessary part of the framework in which such public debate must occur. It is therefore a precondition of ‘self-government’.

This is not an argument, it should be noted, for the protection of personal autonomy in general. It is an argument that autonomous participation in public debate is a necessary precondition of that form of government. This form of autonomy is given special protection because it creates the context in which democratic politics is conducted. Thus, other encroachments on personal autonomy are justified precisely because they occur within a context in which individuals are free to participate in the public debate about those issues.[117]

2 Autonomy and the Australian Constitution

Of course, Post’s argument is exactly the kind of argument that the High Court intended to exclude by its adoption of the ‘text and structure’ interpretive method.[118] Post views democratic government as a mechanism for achieving a deeper value (‘self-rule’ or ‘self-government’).[119] Drawing on Lange, the obvious objection to Post’s argument is that the freedom of political communication is not directed to any deeper value, but only to the voting procedure for the House of Representatives and the Senate and other textually identifiable features of representative and responsible government.[120]

I therefore regard it as most unlikely that that an argument like Post’s will be at all influential upon the High Court in the foreseeable future. However, if we put the Court’s current conservatism to one side and consider the matter from first principles, these arguments cannot simply be dismissed as irrelevant to the freedom of political communication. The argument does not depend on any particular constitutional text, but on what Post argues to be logically implied by the democratic government (or ‘self-government’) rationale for freedom of speech.[121] If it could also be argued that the institutions of representative and responsible government established by the Australian Constitution also logically require some protection of autonomy, then Post’s argument would have some force with respect to the freedom of political communication.

Let me suggest, then, how the argument might be transferable to the Australian Constitution’s adoption of a system in which the people choose their elected representatives. The key feature, once again, is the requirement of a ‘true’ choice in elections for the federal Parliament.[122] The idea of a true choice requires some explanation: what does it mean to say that a choice is ‘true’? It might be said that the idea of people choosing their representatives requires that they be autonomous participants in a public debate, and that they be able to contest the terms on which the debate occurs. Without freedom to participate in public debate in this way, voters would feel controlled and would be subject to a state-imposed conception of what public debate should be like. Choices made in this context would not be the ‘true’ choices that the Constitution requires. Thus, despite the Lange court’s distaste for ‘political principles and theories’,[123] the idea of ‘true’ choice (which it endorses) does allow for the importation of some deeper ideas into the freedom of political communication.

I am not suggesting, I should be clear, that the Australian courts should adopt these ideas.[124] Apart from responses to the argument as a theory of the First Amendment, specific features of the Australian context may well be good reasons to reject the link that Post draws between democratic government (or collective self-rule) and individual self-rule.

First, it should be recognised that Post’s claim that democratic government necessarily or logically entails some protection for autonomy is dependent on his adherence to a particular concept of democratic government.[125] It is because he defines a democratic system of government as one in which citizens participate freely in a public debate (including in the process of determining the framework in which that debate occurs) that he is able to imply from that system of government the need to protect autonomy in this sphere. Therefore, it would be possible to reject the argument by offering a different interpretation of the values underlying representative and responsible government in Australia. For example, theorists committed to an ‘originalist’ interpretation of the Constitution might reject the argument, arguing that the framers’ vision of Australian government was unconcerned with values like personal autonomy.

A similar argument could be maintained by those who consider that the Australian Constitution’s authority stems from the Parliament at Westminster (which passed the Act of which the Constitution forms a part).[126] This argument, if accepted, points to a clear difference between the forms of government implemented by the United States and Australian constitutions.[127] If the power to choose parliamentary representatives is a grant from an external body, rather than a collective decision of the Australian people to govern themselves, then it could be seen as a limited grant of power designed to give Australian voters some choice in their government but not designed to maximise a stronger concept of self-government of the kind upon which Post relies.[128] Subjecting voters to state-imposed conditions on the conduct of public debate could (under this approach) be consistent with our fundamental constitutional premises.

I will not attempt to suggest any particular answer to these questions about the Australian Constitution here. My point is not to offer an alternative theory of Australian democracy but to show that it is possible that the freedom of political communication could be grounded in a concept of representative and responsible government that requires some protection of personal autonomy. The High Court’s current interpretive methods do not rule out such arguments[129] and thus, even though the freedom of political communication serves an institutional rationale (and therefore is said not to be a ‘personal’ right), questions about more ‘personal’ values remain. Questions of individual autonomy cannot be excluded if the form of government that the freedom itself protects requires some protection of autonomous participation in public debate.

The High Court has yet to address this question and, given its current aversion to theoretical analysis, it is likely to leave it undecided for some time. Nonetheless, the issue is not merely of theoretical interest. The argument does not alter the fact that the freedom of political communication only protects communication designed to ensure a true electoral choice[130] but it would alter our conception of what kind of regulation of such political communication is permissible. Post’s argument is addressed to the dispute, discussed above,[131] between traditional American free speech theorists and those who argue that some regulation of speech is permissible because it improves the democratic process. Indeed, his main target, Owen Fiss, is perhaps the principal exponent of the idea that the First Amendment permits the regulation of campaign spending, hate speech and pornography, because such regulation contributes to a ‘rich’ public debate.[132] Post’s argument is that, because democratic government should be understood to include a commitment to autonomous participation in political debate, regulation that interferes with such autonomy cannot be reconciled with democratic ends.[133]

One might be tempted to make a quick response to this point. It might be argued that Fiss’s vision of free speech is also one concerned with autonomy. The laws that he supports address the ability of the powerful to dominate public debate and therefore enhance the capacity of others to participate. Thus, it might be thought that Fiss’s approach interferes with the ‘autonomy’ of some only to increase the autonomy of others. This argument, however, mistakes the role that autonomy plays in Post’s theory. For Post, autonomous participation in public debate is not something that the state can set out to equalise, because the legitimacy of any such action depends itself on the autonomous participation of the citizenry in public debate.[134] Thus autonomy must be a presupposition of democratic self-government, rather than an ideal that it seeks to maximise.[135] Accepting, then, that Post’s argument is relevant to the debate over laws that restrict speech in an effort to enrich public debate, the question is one that the Australian courts may have to face. It seems most likely that the issue will arise in the context of campaign finance legislation.[136] As the facts of Australian Capital Television[137] themselves illustrate, legislation addressing the problems of campaign finance (and thus limiting political communication) may be justified on the basis that it improves the very political processes with which freedom of political communication is also concerned. Although it invalidated the legislation in Australian Capital Television, the High Court has yet squarely to face the question of whether government may ‘manage’ the public debate, silencing some voices in the interests of rich public debate.[138] The current conservatism of the Court suggests that it would find such legislation compatible with the freedom, as do some dicta in Australian Capital Television.[139] If this is the prevailing view, arguments that autonomous participation in public discussion is either instrumentally necessary for, or an intrinsic part of, the constitutionally prescribed form of government pose a challenge with which Australian courts have not yet dealt.


A ‘Negative’ Rights and ‘Vertical’ Rights

I have so far considered the idea that the freedom of political communication is not ‘personal’, in the sense that it serves political, rather than personal, ends. This first meaning of the concept ‘personal right’ is perhaps the most natural sense of the term, but the High Court also uses the term in another way that has nothing to do with the values that underlie the right. When the Court says the freedom is not a ‘personal right’, it also means to say that the freedom is a ‘negative’ rather than a ‘positive’ right.[140] When the term ‘personal right’ is used in this way, a right that serves personal values would still not count as a ‘personal right’ so long as it operated to limit government rather than to require government action.[141]

The equating of personal rights with positive rights is suggested clearly by the following passage in the High Court’s unanimous judgment in Lange:

[Sections] 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors. Those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power.[142]

The passage is almost immediately followed by the quotation of this passage from Brennan J’s judgment in Cunliffe v Commonwealth: ‘The implication is negative in nature: it invalidates laws and consequently creates an area of immunity from legal control’.[143]

Adopting this analysis, the freedom of political communication should be seen as a freedom from interference with political communication rather than a guarantee of a right to participate in it. As Brennan J stated in Theophanous, ‘[i]f the freedom implied in the Constitution were a personal right or immunity, it would extend to what is needed to facilitate or permit its full enjoyment’.[144] It was this conception that led to the rejection of a petition by a candidate in a federal election for orders that various media bodies ensure proper coverage of independent candidates.[145]

Although the Court uses the term ‘negative’, it also draws the conclusion that the freedom of political communication applies only to legislative and executive power. This aspect of its treatment of the freedom implies another quality: the right applies only to actions of the state and does not protect individuals from actions of other private parties. Thus the freedom has only a ‘vertical’ (rather than a ‘horizontal’) operation.[146]

This classification of the freedom of political communication is consistent with conventional understandings about constitutional rights. The classification of the freedom as ‘negative’[147] is consistent with the liberal philosophical tradition[148] and aspects of the common law.[149] It is also commonly the case that constitutional rights have a ‘vertical’ application.[150] But, although classifying the freedom in these ways is not seriously the subject of any significant controversy, it does give rise to further complications.

The concept of a ‘negative’ right and the concept of a ‘vertical right’ both depend on troublesome distinctions. A negative right protects a citizen from action (rather than requiring action to ensure her rights) and therefore requires a distinction between action and inaction. A vertical right protects against state (not private) action and therefore requires a distinction between public and private actors.

The problem with the action–inaction distinction is that an ‘act’ can often be recast as an instance of ‘inaction’. Occurrences within a closely related chain of events provide easy examples: the failure to apply the brakes while driving a car can be regarded as the omission to apply the brakes or as the act of driving without applying the brakes.[151] This kind of argument is even stronger when government is involved. The pervasive role of government in modern life means that government ‘inaction’ almost always occurs within the context of some government action, even if that action is simply allocating resources[152] or providing the legal framework in which a private party acts.[153] The United States Supreme Court has held, for example, that constitutional rights may confer certain obligations on government ‘when the State takes a person into custody and holds him there against his will’.[154] Further, more wide-ranging arguments have been made along the same lines, though without success in the courts.[155] In these situations, even a failure to act could be characterised as state ‘action’. This kind of analysis blurs the distinction between positive and negative rights.[156]

The problem with the second distinction — between public and private actors — lies in determining who the relevant ‘actor’ is and the public or private status of that actor. Where a private party performs a ‘public function’, it may be possible to cast it as acting in the role of government and thus characterise its acts as ‘state action’.[157] Similarly, if the state forces or encourages a private party to act, its actions might be ‘fairly attributable’ to the state.[158] In the United States, where most constitutional rights are understood to have only a ‘vertical’ operation,[159] courts have dealt with this problem by developing a complicated series of tests to determine whether there is ‘state action’ involved. These tests depend on such things as whether the action of a private party is ‘involved with’,[160] coerced, ‘encouraged’ or ‘authorized’[161] by the state or whether the party is performing a ‘public function’.[162] This kind of analysis thus blurs the distinction between horizontal and vertical rights. Where the state is sufficiently involved in the actions of a private party, the relationship between that party and another individual can be recast as a relationship between the individual and the state.

The difficult nature of these distinctions does not appear to have troubled the High Court. However, its failure to appreciate the difficulty of the vertical–horizontal distinction has undermined its analysis of the relationship between the freedom of political communication (and, more generally, the Constitution) and the common law.

B The Relationship between the Common Law and the Constitution: The High Court’s Analysis in Lange

1 The Separation of the Common Law and the Freedom of Political Communication

In Lange, the Court held that the sections of the Constitution that establish the freedom of political communication ‘preclude the curtailment of the protected freedom by the exercise of legislative or executive power.’[163] By failing to mention ‘the common law’, the Court adopted the position that the freedom of political communication does not apply (at least directly) to the common law.

This position effectively reverses that taken in Theophanous.[164] In that case, the majority, following the example of American constitutional law, treated a rule of the common law as subject to constitutional requirements in much the same way as a statutory or executive rule. The Court adopted a new constitutional rule that provided a defence to common law actions in defamation that was distinct from the common law.[165] In Lange, however, the position taken by Brennan J in his dissent in Theophanous[166] prevailed. The Lange court held that the freedom of political communication and the common law of defamation operated in separate spheres. More fully, the Court put it this way:

[T]he question whether a publication of defamatory matter is protected by the Constitution or is within a common law exception to actionable defamation yields the same answer. But the answer to the common law question ... defines the existence and scope of the personal right of the person defamed against the person who published the defamatory matter; the answer to the constitutional law question defines the area of immunity which cannot be infringed by a law of the Commonwealth, a law of a State or a law of [the] Territories ... That is because the requirement of freedom of communication operates as a restriction on legislative power.[167]

In this light, it is not surprising that the rule enunciated in Theophanous (a constitutional defence to a common law claim) was abandoned in Lange.[168]

2 The Constitution’s Indirect Effect on the Common Law

Although I argue that this separation between the common law and legislative and executive power is wrong, I should acknowledge that a further finding of the Court mitigates the effect of this separation. In Lange, the Court also held that the Constitution has an indirect effect on the common law:

The Constitution, the federal, State and territorial laws, and the common law in Australia together constitute the law of this country and form ‘one system of jurisprudence’ ... Within that single system of jurisprudence, the basic law of the Constitution provides the authority for the enactment of valid statute law and may have effect on the content of the common law.[169]

In Lange, this meant that the common law of defamation had to conform to the constitutional requirements of the freedom of political communication.[170]

Therefore, the practical effect of Lange is relatively clear. Despite the supposed distinction between the common law and legislative and executive power, courts will develop the common law to conform to constitutional values,[171] and those aspects of the law which reflect constitutional values are protected from legislative interference.[172] Nonetheless, as I will now show, the Court’s reasoning with respect to the relationship between the Constitution and the common law is deeply flawed.

C Why Distinguish between the Common Law and Legislative and Executive Power?

The key feature of the Court’s reasoning on this point is the distinction it draws between the exercise of legislative or executive power (which is said to be directly subject to constitutional requirements) and the common law (which is said not to be, at least where it applies to the regulation of relations between individuals).[173] Three rationales for the distinction can be found in the judgments, and I will argue that all are inadequate.

1 The ‘Personal Right’ Justification

The justification most clearly apparent from Lange itself depends on the idea that the freedom of political communication is not a ‘personal right’. Consider once more the passage cited above: ‘Those sections [from which the freedom is implied] do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power.’[174]

The argument seems to be that, although a ‘personal right’ might have some application to the common law, a mere limitation on power (like the freedom of political communication) does not.

A similar kind of argument also appears in Brennan J’s dissent in Theophanous, which first advanced the idea that the freedom of political communication only applies to legislative and executive power. He distinguishes between an ‘absolute freedom’ and a ‘freedom which is protected or guaranteed by law’:[175]

There are ... two distinct senses in which the term ‘freedom’ may be used. One is a freedom to do anything — an absolute freedom; the other is a freedom or immunity from legal regulation created, expressly or impliedly by the Constitution — a constitutional freedom. The Court is concerned only with the nature and scope of constitutional freedoms.[176]

The absolute freedom seems to correspond with a positive right (it confers a freedom that is protected even from private interference) whereas the ‘freedom guaranteed by law’ is a freedom from the interference of legal regulation.

In the light of the discussion in Parts II and III, however, it is quickly apparent that this line of reasoning is flawed. First, it simply does not follow from either of the possible meanings of ‘personal right’ that the freedom of political communication (or the Constitution more generally) does not apply to the common law. The fact that the freedom exists to protect a system of government rather than more ‘personal’ values does not establish that it has no application to the common law. On the contrary, as cases like Theophanous and Lange show, common law rules (like the rules of defamation) might threaten the proper operation of representative government. Therefore, if the freedom is to protect representative government, it must be concerned with the common law.

Further, if by stating that the freedom is not ‘personal’ the Court means to establish that it is a ‘negative’ freedom, the exclusion of the common law is similarly unconvincing. It is entirely consistent with the idea of a negative freedom that it would protect individuals from the operation of the common law. If the freedom of political communication is a ‘freedom from’ rather than a ‘right to’, then why is it not a freedom from the interference of the common law?

If the ‘personal right’ argument is to have any significance for the distinction between the enforcement of the common law and the exercise of legislative and executive power, it must be found in arguments relating to the ‘vertical’ operation of the freedom. It is this feature that appears to be at the heart of two further arguments made for the distinction in Brennan J’s dissent in Theophanous.

2 A Limit on Powers Conferred by the Constitution

The first of these arguments is suggested by the passage from Brennan J’s dissent just quoted. He refers to ‘legal regulation created ... by the Constitution.’[177] The full significance of this reference emerges elsewhere in the judgment. Brennan J seems to suggest that the freedom of political communication applies only to powers conferred by the Constitution: ‘When governmental powers are conferred by the Constitution, their scope is impliedly limited to the extent necessary to maintain the structure of government prescribed by the Constitution. The limitation creates a freedom.’[178]

It is difficult to discern the basis for the distinction between a right that applies to regulation created under constitutional powers and one that confers immunity from the common law.[179] It may, however, rely on the idea that a right that applies to regulation created under constitutional powers is operating ‘vertically’ whereas a right that applies to the common law is operating ‘horizontally’.

In any event, the obvious reply to this argument is that, at least when federal courts deal with the common law, they are exercising a power that is conferred by the Constitution. Just as the Constitution confers federal legislative and executive power (in Chapters I and II), it confers federal judicial power (in Chapter III). Thus, if the freedom of communication limits powers conferred by the Constitution, it would also limit the exercise of federal judicial power and thus the interpretation and development of the common law by the federal courts.[180]

This argument does not, of course, solve the question of how the freedom of political communication would apply to State and Territory courts enforcing the common law.[181] However, it is well settled that the freedom of political communication applies to State and Territory legislative and executive power.[182] Once it is established that the freedom of political communication limits federal judicial power, as well as legislative and executive power, there seems no reason to draw the distinction at the State and Territory level. Further, considering that the power of State and Territory courts to enforce the common law is conferred by statute,[183] the distinction between the exercise of State and Territory legislative power and the exercise of State and Territory judicial power becomes very blurred indeed.

In short, then, the application of the common law by courts resembles the exercise of legislative and executive power more closely than Brennan J seems to recognise. At the federal level, all three powers are conferred by the Constitution and thus on his analysis are limited by the implications drawn from it. At the State and Territory level, it is already accepted that legislative and executive powers are limited by the freedom. No reason is given to distinguish the exercise of State and Territory judicial power, and it is difficult to imagine any such justification, given that State and Territory judicial power is itself conferred by statute.

3 The Common Law as Private

The vertical–horizontal distinction is even more directly evident in the second argument to emerge from Brennan J’s extended treatment of the relationship between the common law and the Constitution. Brennan J relies upon a conception of the common law as ‘private’, as principally concerned with relations between individuals. By contrast, the Constitution is seen as directed to government:

Although the Constitution prevails over the common law where there is inconsistency, there is no express inconsistency between the Constitution and those rules of the common law which govern the rights and liabilities of individuals inter se. That is because the Constitution deals not with the rights and liabilities of individuals inter se but with the structure and powers of organs of government, including powers to make laws which deal with those rights and liabilities.[184]

The result, on his analysis, is that the common law and the Constitution will only conflict in the limited circumstances in which common law doctrines address the structure and powers of government. In these circumstances, the Constitution would override the common law (and thus the common law constitutional arrangements that existed before federation were displaced by the Constitution). But, given the principally ‘private’ nature of the common law, his Honour argues, such conflict is rare because the common law more typically deals with individual relations rather than government power:

The Constitution altered the common law by its provisions creating the structures and powers of the organs of government but it does not purport to affect the common law rights and liabilities of individuals inter se. That area of the common law and the area covered by the Constitution do not overlap.[185]

On this view, the freedom of political communication, as a ‘vertical’ right concerned only to prevent governmental interference with political discussion,[186] is not concerned with the ‘private’ common law, such as the law of defamation.[187]

This position, however, overlooks the governmental nature of the common law, and runs counter to other aspects of the Court’s reasoning in Lange.

(a) Developing the Common Law Is ‘State Action’

The argument that the common law is ‘private’ confuses the subject of the common law with the nature of the power to develop, interpret and enforce it. Although the subject of much of the common law is the regulation of relations between individuals, the power to develop, interpret and enforce the common law should be regarded as an act of government in much the same way as legislative and executive action.

A clear statement of this position is found in American constitutional law in New York Times v Sullivan.[188] In upholding a claim that the law of defamation interfered with First Amendment free speech rights, the US Supreme Court held:

Although this is a civil lawsuit between private parties, the ... courts have applied a state [common law] rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is common law only, though supplemented by statute ... 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.[189]

Thus New York Times v Sullivan recognises that, although the act of an individual might be adequately characterised as simply a private wrong by an individual against an individual, the state becomes involved either by protecting the acts, or by vindicating the injured party.[190] On the American analysis, the freedom of political communication would apply to the common law, even conceding the freedom’s ‘vertical nature’, because it applies ‘vertically’ to protect the individual from the government’s enforcement of the common law.

The American doctrine accords more readily with the realities of the exercise of government power. Citizens are bound by common law rules just as much as they are by statutory rules. To argue that the application of the common law is not an exercise of government power (because the common law is ‘private’) simply neglects the governmental nature of the common law’s enforcement.

The Supreme Court of Canada has exhibited similar misunderstandings as appear in Lange in its refusal to apply the Canadian Charter[191] to common law disputes between private parties.[192] The Supreme Court rejected the argument that enforcement of the common law was a form of government power, on the basis that:

While in political science terms it is probably acceptable to treat the courts as one of the three fundamental branches of Government, ... I cannot equate for the purposes of Charter application the order of a court with an element of governmental action. This is not to say that courts are not bound by the Charter. The Courts are, of course, bound by the Charter as they are bound by all law. It is their duty to apply the law, but in doing so they act as neutral arbiters, not as contending parties involved in a dispute.[193]

It is of course true that the courts cannot be equated with one of the ‘contending parties’. Courts and the judges that compose them are taken not to have an interest in the outcome and, in a sense, to act as ‘neutral’ arbiters. However, that says nothing about the kind of power they are exercising. Further, this reasoning seems to neglect the role judges have in making the common law, thus betraying a pre-realist understanding of the common law as a body of law which the courts could somehow ‘discover’ and apply to cases before them, rather than as a body of law that is itself created by judges.[194]

Given the unconvincing nature of the distinction between enforcement of the common law and legislative and executive power, it is not surprising that it leads to absurd results. As Brian Slattery has observed in the Canadian context, the proposition that the Canadian Charter does not apply to the common law enforced between private parties leads to the strange consequence that, where a statute modifies the common law governing a particular subject but leaves other aspects of the common law intact, only the statutory modifications are directly subject to Canadian Charter requirements, whereas the common law is only indirectly subject to it through the requirement of conformity.[195]

(b) The American Position Distinguished?

Given the confusion underlying the Australian and Canadian approaches, the American understanding of the resolution of common law disputes by courts as ‘state’ action seems highly preferable. The High Court does make some attempt to distinguish the American position and it is therefore necessary to address those arguments. In one of the most puzzling passages in Lange, the High Court stated:

The First Amendment to the United States Constitution prohibits Congress from making any law abridging ‘the freedom of speech, or of the press’. This privilege or immunity of citizens of the United States may not be abridged by the making or ‘the enforcement’ by any State of ‘any law’. That is the effect of the interpretation placed on the Fourteenth Amendment ... 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’. Here, ‘[w]e act every day on the unexpressed assumption that the one common law surrounds us ...’[196]

The Court seems to have relied on two features of American constitutional law to distinguish the American position: first that, in the United States, the common law is considered (as a general matter) to be state law; and second that the 14th Amendment is interpreted (through the doctrine of ‘incorporation’) to apply most of the rights in the Bill of Rights to the states. In the United States, the effect of these two propositions is that the First Amendment (which, in its terms, applies only to the federal Congress) applies to the enforcement by the states of the common law.[197]

Certainly, the Australian legal system does not share these distinctive features of American law, but neither has much to say about the application of the Australian Constitution to the enforcement of the common law. First, it is irrelevant that the common law is considered to be state law in the United States, while in Australia there is apparently ‘a single common law’. In the Australian context, it is clear that many constitutional requirements, including the freedom of political communication, apply to the exercise of state legislative and executive power. Therefore, there is no need to consider whether the law in question is attributable to the States or to the Commonwealth. The real question is whether the enforcement of the common law is to be treated separately from other government functions (that is, whether it is to be regarded as the action of government).

Once this point is understood, it is also clear why the doctrine of incorporation is irrelevant to the Australian context. It is only because the common law in the United States is conceived of as state law that there is a need to find some way to apply the provisions of the Bill of Rights to it.[198] Therefore, the absence of such a doctrine in the Australian context says absolutely nothing about whether the Australian Constitution applies to the common law.[199] Thus, the relationship between the common law and the Constitution is not determined by these two distinctive features of American law, but by the concept of the enforcement of the common law as state (in the sense of government) action. Without a good explanation for why the enforcement of the common law is not government action, the reasoning underlying the American position is compelling.

(c) Inconsistency with the ‘Conformity’ Requirement

The final argument against the High Court’s position is found in its own reasoning. The second of the two propositions endorsed in Lange — that the common law must conform to the Constitution[200] — betrays the notion that there is an element of state action in the judicial enforcement of the common law. The reason that the idea of inconsistency between the common law and the Constitution is unappealing is because conflicting instructions seem to be coming from the same source. This reflects our idea that the common law and the Constitution are essentially products of the same source: the state.

The argument that the common law is governmental in nature is also consistent with Sir Owen Dixon’s writings, which influenced the High Court’s understanding of the relationship between the common law and the Constitution.[201] Dixon emphasised the Constitution’s common law origins: that the Australian Constitution is a statute of the Parliament at Westminster, whose powers are themselves conferred by the common law. In Dixon’s view, therefore, the Australian Constitution exists by virtue of, and, as his judgment in Australian Communist Party v Commonwealth[202] makes clear, in certain cases is limited by, fundamental common law doctrines.

This close relationship between the common law and the Constitution does assist the Court in reaching its conclusion that the common law must conform to the Constitution,[203] but it also points to the more general proposition that common law enforcement is governmental in nature. As one analyst of Dixon’s constitutionalism put it, ‘the statement that the common law must conform to the Constitution is merely an acknowledgment that the Constitution is itself derived from the common law: they cannot be at odds because they are moulded from the same stuff.’[204]

Thus, by adopting the position that the common law must conform to the Constitution, the Court effectively contradicts its earlier proposition that the Constitution and the common law operate in separate spheres. If this were true, if (as Brennan J put it) there was no ‘overlap’[205] between the common law and the Constitution, then why would there be any concern as to inconsistency between them?[206]

D Reconceptualising the Relation of the Freedom to the Common Law — Objections

The distinction drawn by the Lange court between the common law and the Constitution is therefore unconvincing and inconsistent with other aspects of the High Court’s position. The Court should openly recognise that the Constitution requires that common law rules conform to the Constitution because development and enforcement of the common law is a governmental act. To conclude my argument, I should address some of the arguments against reconceptualising the relationship between the common law and the Constitution in this way.

Perhaps most obviously, it might be said that the reconceptualisation I advocate makes little difference. There is something to this point. After all, one of the arguments that I make against the Court’s current analysis is that it actually treats the common law as if it were subject to the Constitution by requiring that the common law conform to the Constitution. Further, the current ‘indirect method’ of applying the Constitution to the common law may have some advantages. Existing common law doctrine provides a base from which the courts can make the required changes.[207] However, the fact that the High Court is already acting as if the common law is subject to constitutional requirements is really an argument for reconfiguring its reasoning to match its results. Further, by continuing the current method of applying the Constitution to the common law, the Court could preserve any benefits in the current approach.

The important aspect of the analysis I advocate is that it provides the courts with the right analysis to explain their actions; having the right analysis is likely to help the further development of the doctrine. The time may come when the High Court is faced with a claim that a private party has infringed the freedom of political communication because its private actions were supported by the state, or because the party is performing a traditionally public function.[208] The Australian courts might decline to apply the freedom of political communication (or any other constitutional doctrine at issue) in these circumstances, and might even adopt the position that state encouragement of private action or the private performance of public functions never justifies a finding that the freedom of political communication has been infringed. If the courts adopt the approach I have suggested, however, they will at least be asking themselves the right question — where does the state’s responsibilities for its actions end? — rather than relying upon an artificial distinction between forms of government power.

The second point that might be put against my suggestion that the development of the common law be treated as state action is that ‘state action’ has proved a particularly difficult concept for the American courts.[209] The standard analysis is that the concept of state action is over-inclusive. Whenever a dispute reaches a court, it is almost always possible to identify some state action in the matter, even if it is simply that the general law protects the act complained of.

This criticism applies especially clearly to the general recognition that the enforcement of the common law constitutes state action. That proposition was established by Shelley v Kraemer, in which the United States Supreme Court found that the enforcement of a common law restrictive covenant prohibiting occupancy of residential property by non-whites violated the 14th Amendment’s equal protection requirement.[210] As Professors Gunther and Sullivan explain:

If Shelley were read at its broadest, a simple citation of the case would have disposed of most subsequent state action cases. Some seemingly ‘neutral’ state nexus with a private actor can almost always be found: at least by way of the usual state law backdrop for the exercises of private choices ... Given the entanglement of private choices with law, a broad application of Shelley might in effect have left no private choices immune from constitutional restraints.[211]

The point is readily transferable to the freedom of political communication. If the Shelley principle were consistently applied, the owner of private property who wished to limit the discussion of federal politics, or limit advocacy of particular views about federal politics, on that property could be subject to the freedom of political communication.[212] The owner’s private choice to restrict free political discussion is ultimately backed by the law of trespass, and (on the Shelley approach) that would be sufficient to satisfy the ‘state action’ requirement. Of course, we have a strong intuition that such action should be regarded as private, rather than governmental.[213] The state seems really to be acquiescing in the private choices of another. However, it is difficult to find a satisfactory means of distinguishing between circumstances where the state’s role in providing the legal framework for private action is mere inaction and circumstances where it is constitutionally problematic. The danger of adopting Shelley, then, is that Australian courts would launch themselves on a search for a principle to limit state action doctrine — a search that has proved so troublesome for their American counterparts.

The argument that developing a state action doctrine is too difficult to attempt is not, however, entirely persuasive. There is an important point of distinction between Shelley and cases like Lange. Lange (and for that matter New York Times v Sullivan[214]) are particularly easy cases in which to find unconstitutional state action. They are cases in which the content of rules of the common law offended a constitutional limitation. The common law of defamation simply did not give sufficient protection to political discussion. In such a case, not only is state action readily apparent,[215] but the unconstitutional feature of the arrangement is evident in the face of the rule, rather than in the private ordering that it is used to support. In Shelley, on the other hand, the law relied upon (the law of restrictive covenants) was, on its face, apparently neutral, and the unconstitutional racial discrimination lay in the private arrangement (the particular restrictive covenant at issue).[216] In recognising the existence of state action in a case like Lange, the Australian courts would thus only be adopting the most uncontroversial feature of state action doctrine. Far from abandoning any limit on the application of rights to ‘private’ action, it would recognise only that constitutional limitations apply to the enforcement of common law rules, the content of which violates the relevant constitutional principle.

In any event, there is a more fundamental reason why the Australian courts cannot avoid the task of identifying where there is state action. State action doctrine in some form is a logical consequence of regarding the freedom of political communication as one which limits government power. Of course, the High Court has described the freedom as one which limits only legislative and executive power. But, as I have explained above, the freedom is best understood as a limit on the actions of government generally, as there is no good reason to exclude the enforcement of the common law from the concept of state action. If that is the case, then the Court has to embark on the course of determining when the government acts. As difficult a task as it may be, the question is an inherent part of the way in which the Court has defined the freedom.


The theoretical confusion that this argument has revealed is rather disappointing. The confusion is perhaps the inevitable result of the compromise struck in Lange, where the freedom of political communication was retained, despite waning judicial support, but in an apparently confined form.[217] I have argued elsewhere that the revised doctrine shows a misplaced confidence in the constraining power of ‘constitutional text and structure’.[218] In this article, I have addressed the consequences that might be thought to follow from the statement that the freedom of political communication is not a personal right: that it covers only communication that is explicitly about federal politics, that it serves only ‘institutional’ values, and that it limits only federal legislative and executive power. I have challenged all three conclusions. I have argued that, even accepting that the freedom is not a personal right, it covers a wide range of communication and may (depending on how the High Court develops its understanding of representative government) require some protection of the ‘personal’ value of autonomy. Further, the freedom should be understood to have direct application to the common law. These findings are potentially very significant for the future development of the freedom of political communication. Although the courts are currently interpreting the freedom very narrowly, it would be consistent with basic principles for them to confer rather extensive protection on freedom of speech.

[*] BA, LLB (UNSW), LLM (Columbia); Faculty of Law, Australian National University. This article forms part of the author’s JSD dissertation at Columbia University School of Law. Thanks are due to Kent Greenawalt, Vincent Blasi and Michael Dorf for their supervision of my doctoral work and to Graeme Hill for insightful reviews of several earlier drafts.

[1] See Australian Capital Television v Commonwealth (1992) 177 CLR 106, 135 (Mason CJ) (‘Australian Capital Television’), referring to the ‘[i]mplication of fundamental rights’; see also at 227 (McHugh J): ‘the people of Australia have constitutional rights of freedom of participation, association and communication in relation to federal elections.’ See further Geoffrey Kennett, ‘Individual Rights, the High Court and the Constitution[1994] MelbULawRw 4; (1994) 19 Melbourne University Law Review 581, 596, 604–9; George Williams, Human Rights under the Australian Constitution (1999) 62; George Winterton et al, Australian Federal Constitutional Law (1999) 606; Leslie Zines, The High Court and the Constitution (4th ed, 1997) 389.

[2] See, eg, Australian Capital Television (1992) 177 CLR 106, 140 (Mason CJ), 149 (Brennan J), 168 (Deane and Toohey JJ), 208 (Gaudron J), 227 (McHugh J).

[3] See Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 560 (‘Lange’). See also below n 142 and accompanying text.

[4] The freedom of political communication is a structural implication drawn from the existence of certain institutions of representative and responsible government found in the text. See Australian Capital Television (1992) 177 CLR 106; Lange [1997] HCA 25; (1997) 189 CLR 520. Ie, the representative and responsible government set up by the Australian Constitution is said to imply the freedom of political communication necessary to sustain it. The argument that gives rise to the freedom of political communication is similar to that proposed in Charles Black, Structure and Relationship in Constitutional Law (1969). Professor Black suggested that much of the protection of freedom of speech, assembly and petition currently granted under the First Amendment of the United States Constitution could be implied, even in the absence of constitutional text, as necessary to ensure the proper workings of the national government: at 40–8.

[5] See Williams, above n 1, 168:

By comparison [with freedom of speech under the First Amendment and the Canadian Charter of Rights and Freedoms, pt I of the Constitution Act 1982, being sch B to the Canada Act 1982 (UK) c 11 (‘Canadian Charter’)], the freedom of political communication implied from the Australian Constitution is far more limited in its scope. It has an institutional rather than an individual foundation in that it is designed to facilitate the operation of representative government and not, except incidentally, to promote the general welfare of the individual.

[6] Civil and political rights, such as those found in most constitutions, are usually conceived of as ‘negative’ rights — rights against certain kinds of interference (usually by government). See, eg, Bowers v DeVito, [1982] USCA7 680; 686 F 2d 616, 618 (7th Cir, 1982) (Posner J): ‘The Constitution is a charter of negative liberties; it tells the state to let people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order.’ ‘Social and economic rights’ such as rights to education, health care, housing and social security are commonly advanced forms of positive rights. It may be preferable to use the distinction, drawn in international human rights law, between ‘first generation’ rights (the traditional civil and political liberties) and ‘second generation’ rights (the social and economic claims). See Philip Alston, ‘A Third Generation of Solidarity Rights: Progressive Development or Obfuscation of International Human Rights Law’ (1982) 29 Netherlands International Law Review 307, discussing ‘third generation’ rights, which seek to secure the welfare of communities or peoples rather than individuals.

[7] By ‘coverage’, I mean the category of communications that is accorded some level of protection under the freedom. ‘Protection’, on the other hand, refers to the degree or extent to which such communications are immune from regulation. See generally Frederick Schauer, Freedom of Speech: A Philosophical Enquiry (1982) 89–91. The distinction is reflected in the two-stage test set out in Lange [1997] HCA 25; (1997) 189 CLR 520, 567 (citations omitted):

When a law ... is alleged to infringe the [freedom of political communication], two questions must be answered ... First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government[?]

[8] See below Part II(A).

[9] Since Lange [1997] HCA 25; (1997) 189 CLR 520, the Court has insisted that the doctrine is limited to protecting only those institutions of representative and responsible government identifiable in the text. See text accompanying below nn 1416.

[10] Lange [1997] HCA 25; (1997) 189 CLR 520, 566.

[11] See below nn 215–17 and accompanying text.

[12] See Richard Fallon, ‘Individual Rights and the Powers of Government’ (1993) 27 Georgia Law Review 343; Kent Greenawalt, ‘Free Speech Justifications’ (1989) 89 Columbia Law Review 119, 127.

[13] Referring to the ‘interest’ that the freedom serves seems to suggest that its justification is ‘consequentialist’, ie, that it is justified because it gives rise to some desirable state of affairs (as opposed to a ‘non-consequentialist’ justification which would assert that the principle is ‘right’ or ‘just’ irrespective of its consequences). See Greenawalt, above n 12, 127–8. However, the argument better falls into a category that Professor Greenawalt describes as ‘coherence arguments’ — arguments that, ‘given certain institutions or practices, having freedom of speech is required, or at least is positively indicated’: at 129. As Greenawalt points out, ‘[a] full defense of such an argument requires reasons why the underlying institutions may be taken as starting points and reasons why free speech connects to the underlying institutions’: at 130. I will not attempt that full justification here. Suffice to say the argument would have two steps: (1) an argument for the legitimacy of the Australian Constitution; and (2) an argument that these institutions ought give rise to a freedom of political communication. On the first point, see Geoffrey Lindell, ‘Why Is Australia’s Constitution Binding? — The Reasons in 1900 and Now, and the Effect of Independence’ [1986] FedLawRw 2; (1986) 16 Federal Law Review 29. The second point is addressed most clearly by the High Court in Lange [1997] HCA 25; (1997) 189 CLR 520. See also Australian Capital Television (1992) 177 CLR 106.

[14] Lange [1997] HCA 25; (1997) 189 CLR 520, 566–7.

[15] Ibid 560, quoting Australian Capital Television (1992) 177 CLR 106, 187 (Dawson J).

[16] Lange [1997] HCA 25; (1997) 189 CLR 520, 561.

[17] Though it apparently does not cover ‘offensive’ satire of members of Parliament. See below nn 3233 and accompanying text.

[18] See below Part II(A).

[19] Nationwide News v Wills [1992] HCA 46; (1992) 177 CLR 1, 50 (Brennan J) (‘Nationwide News’). Other expressions include ‘public affairs and political discussion’, ‘the government of the Commonwealth’ (Australian Capital Television (1992) 177 CLR 106, 138 (Mason CJ)); ‘all political matters’ (Deane and Toohey JJ at 169); ‘political discourse’ (Gaudron J at 214); and ‘communication in relation to federal elections’ (McHugh J at 227).

[20] See below nn 8788 and accompanying text.

[21] For a review of these decisions, see Adrienne Stone, ‘The Freedom of Political Communication since Lange’ in Adrienne Stone and George Williams (eds), The High Court at the Crossroads: Essays in Constitutional Law (2000) 1.

[22] For a critique of this aspect of the Lange decision, see 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.

[23] [1997] HCA 31; (1997) 189 CLR 579, 596 (Brennan CJ), 626 (McHugh J) (‘Levy’).

[24] See Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, 122 (Mason CJ, Toohey and Gaudron JJ), 164 (Deane J) (‘Theophanous’).

[25] [1998] FCA 319; (1998) 82 FCR 225 (‘Brown’).

[26] The article contained the declaration that ‘the injunction against stealing from capitalism is itself a capitalist ideology and should be spurned as such’: ibid 247.

[27] Ibid 246 (Heerey J). See also the judgment of Sundberg J (at 258): ‘[T]he article does not relate to the exercise by the people of a free and informed choice as electors’. Sundberg J also took this view because only a small portion of the article was devoted to material that could be described as ‘political’; the article was ‘overwhelmingly a manual about how successfully to steal’: at 258.

[28] [2000] NSWCA 198 (Unreported, Spigelman CJ, Priestley and Meagher JJA, 2 August 2000) (‘Fairfax’). The High Court subsequently granted special leave to appeal: Transcript of Proceedings, John Fairfax Publications Pty Ltd v A-G (NSW) (High Court of Australia, Gleeson CJ and Gaudron J, 1 June 2001).

[29] Section 101 of the Supreme Court Act 1970 (NSW) allowed the Attorney-General of NSW to bring appeals against an acquittal for contempt. The appeals, which were to be held in camera, had no legal effect on the acquittal but allowed the Court of Appeal to clarify matters of law. The NSW courts exercise State and federal jurisdiction and, as a result, the contempt proceedings the subject of s 101 might relate to the prosecution of a federal offence. Therefore,

the policy of a State Attorney manifest in the contentions put on her or his behalf may be relevant to decisions at a Commonwealth level on the exercise of such powers as the Commonwealth may have to affect the operations of State courts in the exercise of federal jurisdiction or, indeed, whether to modify the conferral of such jurisdiction.

Fairfax [2000] NSWCA 198 (Unreported, Spigelman CJ, Priestley and Meagher JJA, 2 August 2000) [106] (Spigelman CJ).

[30] In particular, the majority in Fairfax [2000] NSWCA 198 (Unreported, Spigelman CJ, Priestley and Meagher JJA, 2 August 2000) [84] (Spigelman CJ, with whom Priestley JA agreed) recognised that the possibility that the Commonwealth might choose to act in relation to some issue might make discussion of that issue one that the freedom should cover. I make this point in below nn 60–3 and accompanying text.

[31] Fairfax [2000] NSWCA 198 (Unreported, Spigelman CJ, Priestley and Meagher JJA, 2 August 2000) [83] (Spigelman CJ).

[32] (Unreported, Supreme Court of Queensland, Court of Appeal, de Jersey CJ, McMurdo P and McPherson JA, 28 September 1998) (‘Hanson’).

[33] Ibid. The Court’s reasoning as to the freedom of political communication issue is strikingly brief:

Enjoining the broadcast of this material could not possibly be said to infringe against the need for ‘free and general discussion of public matters’ fundamental to our democratic society. These were grossly offensive imputations relating to the sexual orientation and preference of a Member of Parliament ... as part of an apparently fairly mindless effort at cheap denigration.

The High Court subsequently denied special leave to appeal with no further argument about the freedom of political communication: see Transcript of Proceedings, Australian Broadcasting Corporation v Hanson (High Court of Australia, Gleeson CJ and McHugh J, 24 June 1999).

[34] This is especially true considering that in Fairfax the freedom of political communication claim succeeded. See above n 29 and accompanying text.

[35] In Levy, the countervailing interest was the physical safety of protesters close to the duck hunt; in Hanson, it was the protection of Ms Hanson’s reputation; and in Fairfax the ‘in camera’ requirement protected the acquitted person from further public scrutiny. Brown could be justified on the basis that the interest in the prevention of illegal activity outweighed the value of the political message in the suppressed speech, a conclusion that would be strengthened by the fact that the ideological material in the article was overwhelmed by the material describing how to commit a crime. This final point was made by Sundberg J (see above n 27).

[36] See above n 7.

[37] [1997] HCA 31; (1997) 189 CLR 579, 599 (Brennan CJ), 609 (Dawson J), 614–15 (Toohey and Gummow JJ), 619–20 (Gaudron J), 627–8 (McHugh J), 648 (Kirby J). This was also the position taken by French J, the third member of the Court in Brown. See Brown [1998] FCA 319; (1998) 82 FCR 225, 234.

[38] Where a court reaches that conclusion, a claim for infringement fails at the first step, and it is unnecessary to consider the separate question of whether the particular law in question was a permissible regulation of political communication: Lange [1997] HCA 25; (1997) 189 CLR 520, 567–8.

[39] See above n 15 and accompanying text.

[40] [1997] HCA 31; (1997) 189 CLR 579, 592.

[41] See Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 (upholding legislation protecting wilderness areas in Tasmania enacted pursuant to the external affairs power in s 51(xxix) of the Constitution).

[42] See Murphyores v Commonwealth [1976] HCA 20; (1976) 136 CLR 1 (upholding federal legislation designed to protect the environment of Fraser Island under the trade and commerce power found in s 51(1) of the Constitution).

[43] The federal Parliament’s power under s 96 of the Constitution to make grants to States ‘on such terms and conditions as the Parliament thinks fit’ is subject to few, if any, restrictions. See Victoria v Commonwealth [1957] HCA 54; (1957) 99 CLR 575, 604–5 (Dixon CJ).

[44] This interpretation was rejected by Brennan CJ who found that ‘[t]he plaintiff’s intended protest related to the discrete State issue of the appropriateness of the relevant Victorian law’: Levy [1997] HCA 31; (1997) 189 CLR 579, 596. His Honour’s analysis of the intention of the plaintiff (the protester opposed to the duck hunt) is at least questionable. An activist against duck-hunting may well have a broader environmental agenda that she intends to promote by protesting a discrete issue. In any event, it is not clear why the intention of the plaintiff on this matter should be relevant. If the message the plaintiff intends to communicate actually is relevant to federal matters, then why should it not be within the coverage of the freedom? Further, even if the message was as limited as Brennan CJ suggests, the federal Parliament might have the power to render the State law invalid by passing its own law or, at least, could seek to influence Victorian policy on these matters through its s 96 power to make conditional grants to States.

[45] The purpose behind a law is generally irrelevant for the purpose of determining whether a law is within power. The exceptions are the few powers recognised to nominate a purpose that the Parliament may pursue such as the defence power (s 51(vi)) and the treaty implementation aspect of the external affairs power (s 51(xxix)). Typically, a law will be within power as long as it operates in such a manner that it is sufficiently closely related to the ‘subject matter’ of the power: Herald & Weekly Times Ltd v Commonwealth [1966] HCA 78; (1966) 115 CLR 418; Murphyores v Commonwealth [1976] HCA 20; (1976) 136 CLR 1. See Zines, The High Court and the Constitution, above n 1, 27–8.

[46] The fiscal dominance of the Commonwealth gives it much political influence. See Zines, The High Court and the Constitution, above n 1, 349–53.

[47] Brown [1998] FCA 319; (1998) 82 FCR 225, 234 (French J).

[48] Though the case itself concerned State courts, the statement appears to be of more general import, implying that discussion of the conduct of federal courts is also excluded from the coverage of the freedom. The majority rejected the contention that ‘the conduct of the judiciary was itself a legitimate matter of public interest’ with a statement clearly directed to courts in general rather than State courts specifically: ‘The conduct of courts is not, of itself, a manifestation of any of the provisions relating to representative government upon which the freedom is based’ (Fairfax [2000] NSWCA 198 (Unreported, Spigelman CJ, Priestley and Meagher JJA, 2 August 2000) [82]–[83] (Spigelman CJ)).

[49] See Migration Act 1958 (Cth) pt VIII. The restrictions in pt VIII were introduced in 1994 as a result of government frustration with ‘activist’ judicial decisions on refugee issues and in response to a perceived ‘refugee crisis’. See Mary Crock ‘Judicial Review and Part 8 of the Migration Act: Necessary Reform or Overkill?’ [1996] SydLawRw 14; (1996) 18 Sydney Law Review 267.

[50] The way State courts interpret federal statutes might, for example, be relevant to federal decisions as to whether State courts should continue to exercise federal jurisdiction either generally or in relation to some specific matter. Confusingly, the NSW Court of Appeal recognised this fact in the particular circumstances where the State Attorney-General was responsible for bringing appeals, but did not adopt the more general point. See Fairfax [2000] NSWCA 198 (Unreported, Spigelman CJ, Priestley and Meagher JJA, 2 August 2000) [106] (Spigelman CJ). See also above n 29.

[51] The song (by a gay singer/comedian who used the name ‘Pauline Pantsdown’) was entitled ‘I’m a Back Door Man’. It seems intended to satirise Ms Hanson’s conservative social views by portraying her as a homosexual man. It included the following lyrics: ‘I’m a back door man, I’m very proud of it. I’m a back door man, I’m homosexual. I’m very proud that I’m not natural. I’m a backdoor man for the Ku Klux Klan with very horrendous plans’. The song used snippets of recordings of Ms Hanson’s voice, particularly her characteristic phrase ‘please explain’.

[52] This conclusion is especially troubling in the light of statements in Levy [1997] HCA 31; (1997) 189 CLR 579, 613 (Toohey and Gummow JJ), 623 (McHugh J), allowing for the coverage of communication that appeals to emotion.

[53] In Hustler v Falwell, [1988] USSC 24; 485 US 46, 54 (1988) (Rehnquist CJ), quoting C Press, The Political Cartoon (1981) 251, the Supreme Court of the United States, considering a particularly offensive and obviously inaccurate cartoon, recognised that ‘[t]he art of the cartoonist is often not reasoned or even-handed but slashing and one-sided’ and that its force lies in ‘the emotional impact of its presentation’ and because it ‘continuously goes beyond the bounds of good taste and conventional manners’.

[54] Remembering, of course, that any communication recognised as ‘covered’ by the freedom of political communication could still be regulated, even suppressed entirely, if the regulation meets the requirement set down in Lange [1997] HCA 25; (1997) 189 CLR 520, 571, that it be ‘reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government’. See above n 7.

[55] Robert Bork, ‘Neutral Principles and Some First Amendment Problems’ (1971) 47 Indiana Law Journal 1, 27–8.

[56] See above nn 4850 and accompanying text.

[57] These issues have been the subject of public debate in Australia but are not part of the policy proposals before the federal Parliament. It should be noted, however, that Pauline Hanson’s One Nation Party apparently supports a referendum on the introduction of the death penalty for certain offences: see One Nation, Pauline Hanson’s One Nation (Queensland) Policy Brief: Crime Related Penalties <> at 31 July 2001 (copy on file with author). However, there is only a single Senator representing that party and the policy has not been seriously discussed in the Parliament.

[58] Eg, the Australian Labor Party specifically opposes the introduction of the death penalty: see Australian Labor Party, 2000 Platform and Constitution (2000) 11-5 <

downloads/federal/platform/platform_2000.pdf> at 31 July 2001 (copy on file with author). The National Party of Australia specifically opposes change to the Australian flag: see National Party of Australia, Platform 2000: Strong Foundations for the New Century (2000) 1 <http://members.> at 31 July 2001 (copy on file with author).

[59] See below n 75.

[60] The NSW Court of Appeal struggled with the breadth of this category in the Fairfax case. Although excluding the conduct of courts from the coverage of the freedom, the majority did concede that the prospect of a future constitutional referendum on the judicial power provisions of the Constitution could make the current discussion of the conduct of courts relevant to the referendum process (a constitutionally protected institution of representative government). Nonetheless, the majority did not accept that this argument brought the issue within the coverage of the freedom, noting that to accept it ‘would lead to the conclusion that there was virtually no subject that was not of a “governmental or political” character’: Fairfax [2000] NSWCA 198 (Unreported, Spigelman CJ, Priestley and Meagher JJA, 2 August 2000) [84] (Spigelman CJ). It did not, however, articulate any principled basis for the limitation.

[61] In response to a claim brought by gay activists, the United Nations Human Rights Committee ruled that certain sections of the Tasmanian Criminal Code 1924 (outlawing, inter alia, homosexual sex) breached Australia’s obligations under the International Convention on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171, 6 ILM 368 (entered into force 23 March 1976). See Toonen v Australia, United Nations Human Rights Committee, UN Doc CCPR/C/50/D/488/1992 (31 March 1993). In response, the federal government proposed and the Parliament passed the Human Rights (Sexual Conduct) Act 1994 (Cth), overriding the Tasmanian law. See Simon Bronnitt, ‘The Right to Sexual Privacy, Sado-Masochism and the Human Rights (Sexual Conduct) Act 1994 (Cth)’ [1995] AUJlHRights 4; (1995) 2 Australian Journal of Human Rights 59.

[62] See above nn 45–6 and accompanying text.

[63] The ‘Stolen Generations’ refers to Aboriginal and Torres Strait Islander children forcibly removed from their families by State and Territory governments from the early part of last century to the early 1970s. See generally Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (1997).

[64] The government acted in response to the decision in McBain v Victoria [2000] FCA 1009; (2000) 99 FCR 116, where the Court found that the requirement of s 8(1) of the Infertility Treatment Act 1995 (Vic) that a recipient of infertility treatment be ‘married and living with her husband on a genuine domestic basis’ or ‘living with a man in a de facto relationship’ was inconsistent with s 22 of the Sex Discrimination Act 1984 (Cth) and thus that the former provision was invalid under s 109 of the Constitution.

[65] Cf Human Rights and Equal Opportunity Commission, above n 63, with Senate Legal and Constitutional References Committee, Healing: A Legacy of Generations, Parl Paper No 410 (2000). See also John Herron, ‘A Generation Was Not Stolen’, The Sydney Morning Herald (Sydney), 4 April 2000, 15; Peter Howson, ‘The Truth about the “Stolen Generation’’’, The Age (Melbourne), 14 April 2000, 19; Editorial, ‘Stolen Children, Stolen History’, The Age (Melbourne), 16 April 2000, 18; Tony Wright and Kerry Taylor, ‘Fury over “Stolen” Denial’, The Age (Melbourne), 3 April 2000, 1; Paul Kelly, ‘Time for Howard to Listen’, The Australian (Sydney), 29 May 2000, 1.

[66] The Prime Minister’s refusal to apologise to the ‘Stolen Generations’ is associated with his decrial of the ‘black armband’ view of Australian history, which he takes to be the view that Australian history is ‘a disgraceful story of imperialism, exploitation, racism, sexism and other forms of discrimination.’ Mr Howard’s view is that ‘the balance sheet of our history is one of heroic achievement and that we have achieved much more as a nation of which we can be proud than of which we should be ashamed’: John Howard, ‘The Liberal Tradition: The Beliefs and Values Which Guide the Federal Government’ (Sir Robert Menzies Lecture, Melbourne, 18 November 1996) 17. See generally Mark McKenna, ‘Different Perspectives on Black Armband History’ (Research Paper No 5, Commonwealth Parliamentary Library, 1997); Gerard Henderson, ‘The Howard View of History’, The Sydney Morning Herald (Sydney), 4 April 2000, 15.

[67] The Prime Minster has consistently maintained the view that a ‘formal national apology’ is not appropriate, in part because of his view that most individual Australians living today bear no responsibility for these acts. See Commonwealth, Parliamentary Debates, House of Representatives, 26 August 1999, 9206–7 (John Howard, Prime Minister). See also Senate Legal and Constitutional References Committee, above n 65, 112–16.

[68] ‘Nations Split on IVF for Singles, Lesbians’, The Age (Melbourne), 15 August 2000, 1; Leslie Cannold, ‘The Disappearing Father’, The Age (Melbourne), 4 August 2000, 15; Michael Grose, ‘Dads Make a Difference’, The Age (Melbourne), 4 August 2000, 15.

[69] John Howard, Amendment to Sex Discrimination Act, Press Release (1 August 2000): ‘This issue primarily involves the fundamental right of a child within our society to have the reasonable expectation, other things being equal, of the care and affection of both a mother and a father.’ Cf Cathy Sherry, ‘A Question of Rights for Mother and Child’, The Sydney Morning Herald (Sydney), 4 August 2000, 14; Bill Uren, ‘IVF: The Heart of the Matter’, The Age (Melbourne), 4 August 2000, 15 (regretting use of the language of ‘rights’ and ‘discrimination’).

[70] Alison Caddick, ‘What’s Love Got to Do with It?’, The Sydney Morning Herald (Sydney), 26 August 2000, 2.

[71] Howard, Amendment to Sex Discrimination Act, above n 69; Explanatory Memorandum, Sex Discrimination Amendment Bill (No 1) 2000 (Cth) 3: ‘it is consistent with the States’ responsibilities in relation to the regulation of the provision of medical care and treatment that they be permitted to regulate access to ART [assisted reproductive technology] services.’

[72] Alexander Meiklejohn, ‘The First Amendment Is an Absolute’ [1961] Supreme Court Review 245, 257, though his initial view was rather more restrictive. See Alexander Meiklejohn, Free Speech: And Its Relation to Self-Government (1948) 22–7, distinguishing between speech on matters of public concern and other speech.

[73] Meiklejohn, ‘The First Amendment’, above n 72, 255.

[74] Ibid 263 (quotation marks omitted).

[75] Of course, there may be some easily identifiable, commonsense limits. It is difficult to imagine that workplace or ‘back-fence’ gossip about the personal lives of private individuals could be considered political communication. There is also the intriguing question, which I put to one side, as to whether advocacy of the violent overthrow of government is covered by the freedom. See generally Schauer, Freedom of Speech, above n 7, 194–5. Even accepting exclusion of these matters, the remaining category is disturbingly broad.

[76] Laurence Tribe, American Constitutional Law (2nd ed, 1988) 786–7, 789; Zechariah Chafee, ‘Book Review — Free Speech: And Its Relation to Self-Government(1949) 62 Harvard Law Review 891, 899–900.

[77] When nominated to the United States Supreme Court, Bork recanted this view of the First Amendment before the United States Senate during his (ultimately unsuccessful) confirmation hearing. See Cynthia Estlund, ‘Speech on Matters of Public Concern: The Perils of an Emerging First Amendment Category’ (1990) 59 George Washington Law Review 1, 2, fn 11.

[78] Bork, above n 55, 27.

[79] Ibid 28.

[80] Ibid 27.

[81] See Lillian BeVier, ‘The First Amendment and Political Speech: An Inquiry into the Substance and Limits of Principle’ (1978) 30 Stanford Law Review 299, 344.

[82] Ibid 345. See also Frederick Schauer, ‘Fear, Risk and the First Amendment: Unraveling the “Chilling Effect’’’ (1978) 58 Boston University Law Review 685, who argues that the doctrine of the ‘chilling effect’ reflects a choice to extend protection of libellous speech beyond that which is strictly required by constitutional principle in order to protect the speaker and publishers of protected speech from the possibility of erroneous defamation judgments against them.

[83] BeVier, above n 81, 326–7 points to the particular difficulties posed by ‘mixed utterances’, ie, those that combine protected and unprotected speech, and to the complexity of cases in this area. She states (at 329–30):

[F]irst amendment cases do not present factual situations that fall into readily identifiable or relatively stable analytic categories. They present, rather, factual variations along several ever-shifting continuums. The vindication of first amendment principle depends on the identification and evaluation of a multitude of variables, which are often interdependent. ... The presence of so many variables makes first amendment cases significantly different from one another ... [I]t is inescapably difficult to discover, describe and relate their differences to relevant doctrinal patterns.

[84] Further, the argument for fourth category communications runs into questions about the institutional capacities of judges. It is not at all clear how judges would assess whether communications develop qualities like intelligence, sensitivity and integrity: ibid 317.

[85] See above n 15 and accompanying text.

[86] [1994] HCA 46; (1994) 182 CLR 104, 125.

[87] Ibid 124, quoting Eric Barendt, Freedom of Speech (1985) 152.

[88] See Chafee, above n 76, 899–900:

[The] supposed boundary between public speech and private speech ... is extremely blurred. ... Birth control is the most personal of all matters, and yet any discussion of it raises questions of the desirable size of our population, the intelligent rearing of children, dependency, immorality and clerical control of votes. The truth is that there are public aspects to practically every subject.

[89] The most commonly advanced arguments for freedom of speech are: (1) the argument that it promotes the search for ‘truth’; (2) the argument that it promotes ‘autonomy’; and (3) the argument that it promotes democratic government or self-government (see below n 91). See Greenawalt, above n 12; Schauer, Freedom of Speech, above n 7, 15–72; Wojciech Sadurski, Freedom of Speech and Its Limits (1999) 16–31.

[90] On ‘democracy’ as a justification for freedom of speech, see Greenawalt, above n 12, 145–6; Schauer, Freedom of Speech, above n 7, 35–46. A related justification advanced by Vincent Blasi, ‘The Checking Value in First Amendment Theory’ [1977] American Bar Foundation Research Journal 521 is that freedom of speech serves the purpose of ‘checking’ the abuse of official power: Vincent Blasi, ‘The Checking Value in First Amendment Theory’ [1977] American Bar Foundation Research Journal 521. Although this argument, which Professor Blasi suggests should operate in conjunction with other arguments for freedom of speech, has much in common with the ‘self-government’ justification (see below n 91), it focuses on the particular problem of misconduct by government officials. It therefore provides justification for a highly protective attitude to a narrow category of speech, ie, speech that is capable of checking misconduct (by subjecting it to public scrutiny and, ultimately, sanction at the ballot box): at 557–8.

[91] Some American theorists have preferred the expression ‘self-government’ on the basis that this is the fundamental value that underlies democratic government. See Meiklejohn, Free Speech, above n 72, 3. See also Robert Post, ‘Meiklejohn’s Mistake: Individual Autonomy and the Reform of Public Discourse’ (1993) 64 University of Colorado Law Review 1109, 1115: ‘majoritarianism, from the perspective of traditional First Amendment doctrine, is merely a mechanism for decisionmaking that we adopt to reflect the deeper value of self-government’. Unless I think the difference is pertinent, I will use the term ‘democratic government’ without meaning to distinguish between the two concepts.

[92] See generally Greenawalt, above n 12, 143–5, 151–2; Schauer, Freedom of Speech, above n 7, 67–72.

[93] See Thomas Scanlon, ‘A Theory of Freedom of Expression’ (1972) 1 Philosophy and Public Affairs 204. A related form of argument relies on the ‘self-realisation’ value, which includes ‘autonomy’ in the sense of both allowing people to make free decisions and the individual’s capacity for self-development. See Thomas Emerson, ‘Toward a General Theory of the First Amendment’ (1963) 72 Yale Law Journal 877, 819; Martin Redish, ‘The Value of Free Speech’ (1982) 130 University of Pennsylvania Law Review 591.

[94] Owen Fiss, ‘Free Speech and Social Structure’ (1986) 71 Iowa Law Review 1405, 1409–10. See also Williams, above n 1, 62.

[95] Owen Fiss, The Irony of Free Speech (1996); Cass Sunstein, Democracy and the Problem of Free Speech (1993).

[96] See, eg, Post, ‘Meiklejohn’s Mistake’, above n 91; above n 91.

[97] Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People (1965) 26.

[98] Ie, the capacity of some to dominate public debate to the exclusion of others. A particular concern is the domination of political debate by wealthy political donors: Fiss, The Irony of Free Speech, above n 95, 8–9, 16; see also below nn 132137 and accompanying text. Fiss also shows a special concern for the way in which hate speech and pornography may ‘silence’ other speakers by ‘diminish[ing] the victims’ sense of worth, thus impeding their full participation in many of the activities of civil society, including public debate’ (at 16), though he is less comfortable with regulation of these forms of speech (at 25). See also Sunstein, above n 95, 35. Sunstein also suggests that these arguments would support ‘requirements of public interest programming on television, rights of reply for dissenting views, controls on the power of advertisers to influence programming content, and limitations on advertising during children’s programming’: at 35. Some advocates for the regulation of hate speech and pornography argue that it addresses the ‘silencing’ of the victims of these forms of speech: Charles Lawrence, ‘If He Hollers Let Him Go: Regulating Racist Speech on Campus’ [1990] Duke Law Journal 431; Catherine MacKinnon, Feminism Unmodified (1987) 209; Rae Langton ‘Speech Acts and Unspeakable Acts’ (1993) 22 Philosophy and Public Affairs 293.

[99] Fiss, The Irony of Free Speech, above n 95, 18.

[100] See, eg, New York Times v Sullivan, [1964] USSC 40; 376 US 254, 270 (1964) (Brennan J); Abrams v United States, [1919] USSC 206; 250 US 616, 630 (1919) (Holmes J, dissenting).

[101] Buckley v Valeo, [1976] USSC 24; 424 US 1, 48–9 (1976) (citations omitted): ‘[T]he concept that government may restrict the speech of some elements of society in order to enhance the relative voice of others is wholly foreign to the First Amendment’ which was designed to secure the widest possible dissemination of information from diverse and antagonistic sources, and to assure unfettered interchange of ideas.

[102] See Schauer, Freedom of Speech, above n 7, 45–6. This idea is found in the judgments of Learned Hand J. See, eg, United States v Associated Press, 52 F Supp 362, 372 (SDNY, 1943): ‘the First Amendment ... presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection.’

[103] Scanlon, above n 93. The argument is that an autonomous person is one who makes independent choices about his or her actions and beliefs in the face of competing reasons. Freedom of speech promotes autonomy by providing the individual with the information with which to make these choices. Therefore, respect for autonomy precludes the state from regulating speech because of its capacity to persuade an individual to have a certain belief or because of its capacity to cause a person to take action by persuading him or her that the action is worthy.

[104] Ibid 214.

[105] Ibid 225.

[106] Lange [1997] HCA 25; (1997) 189 CLR 520, 567. See also McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140, 231–2 (McHugh J) (citation omitted):

Underlying or overarching doctrines may explain or illuminate the meaning of the text or structure of the Constitution but such doctrines are not independent sources of the powers, authorities, immunities and obligations conferred by the Constitution. Top-down reasoning is not a legitimate method of interpreting the Constitution ... it is not legitimate to construe the Constitution by reference to political principles or theories that are not anchored in the text of the Constitution or are not necessary implications from its structure.

[107] Post, ‘Meiklejohn’s Mistake’, above n 91, 1116.

[108] Ibid; Robert Post, ‘Equality and Autonomy in First Amendment Jurisprudence’ (1997) 95 Michigan Law Review 1517. A more radical version of the argument, on which I do not seek to rely, is put by Martin Redish. Whereas Post sees autonomy as an aspect of self-government, Redish, above n 93, 602–3 sees self-government as an aspect of ‘self-realization’, a value that encompasses both autonomy in the sense discussed above (the individual’s freedom to make choices about her acts and beliefs) and the freedom to develop the individual’s ‘human faculties’. Redish argues that the attraction of democracy lies in the control it gives to individuals over their own destinies. He argues, ‘if one does not accept the morality of such a proposition, why bother to select a democratic system in the first place?’: at 602–3. Therefore, according to Redish, the democratic government rationale for freedom of speech must be understood as a manifestation of a more general rationale for freedom of speech: the ‘self-realization’ value.

[109] Post, ‘Meiklejohn’s Mistake’, above n 91, 1116.

[110] Ibid.

[111] Ibid 1128:

Public discourse merits unique constitutional protection because it is the process through which the democratic ‘self,’ the agent of self-government, is itself constituted through the reconciliation of individual and collective autonomy. Constitutional solicitude for public discourse, therefore, presupposes that those participating in public discourse are free and autonomous.

[112] Post, ‘Equality and Autonomy’, above n 108, 1524–6.

[113] Ibid 1524.

[114] Post, ‘Meiklejohn’s Mistake’, above n 91, 1117–18.

[115] Meiklejohn’s argument is that government’s role is like that of a moderator of a town meeting, controlling debate to ensure an orderly discussion in which all points of view are presented. See Meiklejohn, Political Freedom, above n 97, 24–30.

[116] Post, ‘Meiklejohn’s Mistake’, above n 91, 1118 (citation omitted), quoting Elmer Schattschneider, The Semisovereign People: A Realist’s View of Democracy in America (2nd ed, 1975) 66.

[117] See Post, ‘Meiklejohn’s Mistake’, above n 91, 1131–2:

The explosive expansion of the regulatory state during the 20th century ... has been fueled by acceptance and application of the insights of social science ... We do not regard these government controls as fundamentally incompatible with the premises of democratic freedom because we conceive of them to have been freely adopted by the citizens of a democratic state. Analogous managerial controls over public discourse, however, cannot be conceptualised as democratically legitimate in the same way, for they displace the very processes of collective self-determination.

[118] See above n 106.

[119] See above n 91.

[120] See above nn 1415 and accompanying text.

[121] See Post, ‘Meiklejohn’s Mistake’, above n 91, 1115.

[122] See text accompanying above n 15.

[123] See text accompanying above n 106.

[124] Indeed, I have argued elsewhere that the High Court should, where possible, postpone developing the theoretical underpinnings of the freedom of political communication because of the ambitious and difficult nature of the task. See Adrienne Stone, ‘The Freedom of Political Communication, the Constitution and the Common Law’ (1998) 26 Federal Law Review 219.

[125] Post, ‘Meiklejohn’s Mistake’, above n 91, 1123–4 (emphasis added): ‘Many who practice empirical political science would no doubt object to the identification of democracy with the value of autonomous self-government. But within the world of [American] constitutional law this identification stands virtually unchallenged.’

[126] Australian Capital Television (1992) 177 CLR 106, 181 (Dawson J): ‘The legal foundation of the Australian Constitution is an exercise of sovereign power by the Imperial Parliament.’ As noted by Michael Wait, there is a possibility that this view has been revived in Sue v Hill [1999] HCA 30; (1999) 199 CLR 462, 494 where Gleeson CJ, Gummow and Hayne JJ refer to the Australian sovereign as ‘a constitutional monarch’. See Michael Wait, ‘The Slumbering Sovereign: Sir Owen Dixon’s Common Law Constitution Revisited’ [2001] FedLawRw 3; (2001) 29 Federal Law Review 57, 57. The contrary view is that, at least since the passage of the Australia Act 1986 (UK) c 2, the Australian Constitution derives its authority from the Australian people (due to the ratification of the Constitution by the people of the then Australian colonies and its continued acceptance by the Australian Parliament). See, eg, Australian Capital Television (1992) 177 CLR 106, 138 (Mason CJ) (‘the Australia Act 1986 (UK) marked the end of legal sovereignty of the Imperial Parliament and recognized that ultimate sovereignty resided in the Australian people’). See also Nationwide News [1992] HCA 46; (1992) 177 CLR 1, 172 (Deane J). For an excellent discussion (and thorough review of judicial statements on this issue), see George Winterton, ‘Popular Sovereignty and Constitutional Continuity’ [1998] FedLawRw 1; (1998) 26 Federal Law Review 1. Professor Winterton reconciles the two positions as follows: ‘The continuing legal authority of our Constitution derives from its original enactment at Westminster and subsequent retention (with amendments) by those empowered to amend it, which includes the Australian electors. But the latter derived their legal authority from the former’: at 7.

[127] Cf these views with conventional understandings of the United States Constitution. In New York Times v Sullivan, [1964] USSC 40; 376 US 254, 274 (1964) (Brennan J), the Court discusses James Madison’s view that ‘[t]his [American] form of government was “altogether different” from the British form, under which the Crown was sovereign and the people were subjects’ and his view that ‘[i]f we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people.’ Importantly, Madison linked these differences to individual freedoms. ‘Is it not natural and necessary, under such different circumstances ... that a different degree of freedom in the use of the press should be contemplated?’: at 274–5 (Brennan J), quoting James Madison.

[128] In Australia, the growing acceptance of notions of popular sovereignty was employed in favour of arguments for implied constitutional rights. Professor Saunders notes this association in Cheryl Saunders, ‘The Mason Court in Context’ in Cheryl Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996) 2, 4. Some commentators have argued that questions of sovereignty have nothing to say about the existence, or otherwise, of constitutional implications protecting individual rights. See Winterton, above n 126, 12:

The rights and freedoms of citizens are determined by the sovereign’s handiwork, the Constitution, wherein the people may choose to retain a multitude of rights, as in the United States, or relatively few or even none, by adopting wholly or partially the principle of parliamentary supremacy.

The argument I am making suggests something slightly different. I am suggesting that the question of sovereignty helps interpret the existing freedom of political communication by defining the nature of the institutions of representative and responsible government which it serves.

[129] See text accompanying above nn 1415.

[130] Remembering that, as discussed in above Part II, ‘political communication’ covers communication about a broad range of matters.

[131] See text accompanying above nn 95102.

[132] See Fiss, The Irony of Free Speech, above n 95.

[133] On this view, other kinds of arguments might nonetheless allow for the regulation of speech. Eg, Post recognises that regulation of commercial speech does not raise this problem. See Robert Post, ‘Reconciling Theory and Doctrine in First Amendment Jurisprudence’ (2000) 88 California Law Review 2353, 2373.

[134] See above n 117 and accompanying text.

[135] Thus, Post’s argument relies upon an ‘ascriptive’ sense of autonomy — the idea that autonomy is not a quality that we are empirically judged to have, but a ‘moral right to personal sovereignty’. See Richard Fallon Jr, ‘Two Senses of Autonomy’ (1994) 46 Stanford Law Review 875, 877. Professor Fallon (at 877–8) distinguishes between this ‘ascriptive’ sense and a ‘descriptive’ sense of autonomy (emphasis removed):

In one fundamental usage, autonomy is largely a descriptive concept, which refers to people’s actual condition and signifies the extent to which they are meaningfully ‘self-governed’ in a universe shaped by causal forces ... Employed as an ascriptive concept, autonomy represents the purported metaphysical foundation of people’s capacity and also their right to make and act on their own decisions ... Ascriptive autonomy — the autonomy that we ascribe to ourselves and others as the foundation of a right to make self-regarding decisions — is a moral entailment of personhood.

[136] I have not discussed regulation of pornography and hate speech (see above n 98) because it seems unlikely that the Australian courts would regard these as political communication.

[137] (1992) 177 CLR 106. The impugned legislation in that case limited electronic advertising during election periods. It was directed at reducing the disproportionate influence of wealthy donors to political parties. As the Commonwealth argued in that case (at 129 (Mason CJ)):

[T]he evident and principal purpose of [the law] is to safeguard the integrity of the political system by reducing, if not eliminating, pressure on political parties and candidates to raise substantial sums of money in order to engage in political campaigning on television and radio, a pressure which renders them vulnerable to corruption and to undue influence by those who donate to political campaign funds.

[138] The law at issue in Australian Capital Television was held to be invalid because the way in which it distributed free access to the electronic media during election periods was considered likely to favour established political parties: Australian Capital Television (1992) 177 CLR 106, 145 (Mason J), 172 (Deane and Toohey JJ), 221 (Gaudron J), 237 (McHugh J).

[139] Ibid 169 (Deane and Toohey JJ):

A law prohibiting or restricting political communications by reference to their character as such will be consistent with the prima facie scope of the implication ... [if] ... it is justified as being in the public interest for the reason that the prohibitions and restrictions on political communication which it imposes are ... conducive to the overall availability of the effective means of such communications ...’

Significantly, Deane and Toohey JJ cite Red Lion Broadcasting Co v Federal Communication Commission, [1969] USSC 141; 395 US 367 (1969) (upholding federal regulations of the broadcast media), a decision that Post, ‘Reconciling Theory and Doctrine’, above n 133, 2370 describes as ‘[t]he one notable exception to [the First Amendment’s] commitment [to individual rights] ... [T]hese regulations ... were designed to promote a balanced and well-ordered national dialogue on public issues.’

[140] One further possibility that can be fairly readily excluded is the sense that litigants may only assert a violation of their own, and not someone else’s, constitutional rights. See Broadrick v Oklahoma, [1973] USSC 166; 413 US 601, 610 (1973) (White J) (emphasis added):

[A] person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court. ... A closely related principal is that constitutional rights are personal and may not be asserted vicariously.

See generally Matthew Adler, ‘Rights against Rules: The Moral Structure of the American Constitution(1998) 97 Michigan Law Review 1, 39, fn 147 and cases there cited. There is no suggestion in any judgment considered here that casts doubt on the corresponding requirement in Australian constitutional law.

[141] Thus a right like the right against unreasonable searches and seizures, or the privilege against self-incrimination (found in the Fourth and Fifth Amendments to the United States Constitution) would not count as personal rights. Although these rights are directed to the protection of individuals, they are negative rights that protect only against the action of government.

[142] [1997] HCA 25; (1997) 189 CLR 520, 560. See also Levy [1997] HCA 31; (1997) 189 CLR 579, 622 (McHugh J); Theophanous [1994] HCA 46; (1994) 182 CLR 104, 146–8 (Brennan J), 168 (Deane J); Cunliffe v Commonwealth [1994] HCA 44; (1992) 182 CLR 272, 327 (Brennan J); Australian Capital Television (1992) 177 CLR 104, 150 (Brennan J). For similar statements in the literature on the freedom of political communication, see Anne Twomey, ‘“Expansion or Contraction?”: A Comment’ [1998] AdelLawRw 12; (1998) 20 Adelaide Law Review 147, 151; Richard Jolly, ‘The Implied Freedom of Political Communication and Disclosure of Government Information’ [2000] FedLawRw 2; (2000) 28 Federal Law Review 41, 43, 51; Williams, above n 1, 62.

[143] [1994] HCA 44; (1994) 182 CLR 272, 327.

[144] [1994] HCA 46; (1994) 182 CLR 104, 148. See also ibid 326 (Brennan J).

[145] McClure v Australian Electoral Commission [1999] HCA 31; (1999) 163 ALR 734, 740–1 (Hayne J): ‘the freedom of communication implied in the Constitution is not an obligation to publicise. The freedom is a freedom from governmental action; it is not a right to require others to provide a means of communication.’

[146] The terminology of ‘vertical’ and ‘horizontal’ rights is used in the context of European and South African rights. See Andrew Clapham, Human Rights in the Private Sphere (1993); Stuart Woolman ‘Chapter 10: Application’ in Matthew Chaskalson et al (eds), Constitutional Law of South Africa (1996); Murray Hunt, ‘The “Horizontal Effect” of the Human Rights Act[1998] Public Law 423. Under a ‘vertical’ approach to rights, ‘human rights law is concerned only with the relationship between the state and the individual’; under a horizontal approach, rights ‘govern also relations between private individuals and bodies’: at 423 (emphasis in original).

[147] The reasons for this classification are not, however, found in conventional methods of interpretation. The text of the Constitution does not indicate whether the freedom of political communication is positive or negative. Cf the First Amendment, which begins ‘Congress shall make no law’, or its nearest equivalent in the Australian Constitution, s 116, which begins ‘The Commonwealth shall not make any law for the establishment of religion’. As for structural implication from the text (ie, by the notion of what the text ‘logically or practically’ requires), the argument could go either way. The freedom exists to protect institutions of representative and responsible government and, if it could be shown that government action was necessary to protect these institutions, the logic of the structural implication would entail that government action is required. Further, historical arguments, often deployed in support of the conclusion that American constitutional rights are generally negative (see DeShaney v Winnebago County Department of Social Services, [1989] USSC 28; 489 US 189, 196 (1989); cf Michael Gerhardt, ‘The Ripple Effects of Slaughter-House: A Critique of a Negative Rights View of the Constitution(1990) 43 Vanderbilt Law Review 409) are also unhelpful in this case because the historical basis for the freedom is itself rather weak. The freedom of political communication is usually justified as an implication that can be drawn from the text without reference to original understanding. See Stephen Donaghue, ‘The Clamour of Silent Constitutional Principles’ [1996] FedLawRw 5; (1996) 24 Federal Law Review 133. For an originalist critique, see Jeffrey Goldsworthy, ‘Constitutional Implications and Freedom of Political Speech: A Reply to Stephen Donaghue’ [1997] MonashULawRw 22; (1997) 23 Monash University Law Review 362.

[148] Negative rights can be seen as a manifestation of a preference for a negative concept of liberty, ie, a concept of liberty as freedom from interference. See generally Susan Bandes, ‘The Negative Constitution: A Critique’ (1990) 88 Michigan Law Review 2271, 2313–16. A famous argument for ‘negative liberty’ is found in Isaiah Berlin, ‘Two Concepts of Liberty’ in Isaiah Berlin, Four Essays on Liberty (1969) 118. Berlin feared that a ‘positive’ conception of liberty would allow the state to intervene to achieve whatever that positive conception entailed and may then lead to totalitarianism.

[149] Bandes, above n 148, 2317–23. See also below n 151. Common law understandings about the nature of rights may be particularly significant for the interpretation of the Australian Constitution, given the close relationship between common law principles and the Constitution. See below nn 202–4 and accompanying text.

[150] Geoffrey Stone et al, Constitutional Law (3rd ed, 1996): ‘It is commonplace that the commands of the Constitution are directed to governmental entities, not to private parties’; James v Commonwealth [1939] HCA 9; (1939) 62 CLR 339, 362 (Dixon J): ‘Prima facie a constitution is concerned with the powers and functions of government and the restraints upon their exercise.’ Though the rights protected by the Irish Constitution appear to be an exception: see Hunt, above n 146, 428.

[151] Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424, 501 (Deane J). See also Archie v City of Racine, 847 F 2d 1211, 1213 (7th Cir, 1988) (Easterbrook J): ‘it is possible to restate most actions as corresponding inactions with the same effect and to show that inaction may have the same effects as a forbidden action.’ The law of negligence demonstrates the difficulty of this distinction because, just as constitutional rights are said to confer no obligations on the government to act, the law of negligence does not generally recognise liability for an omission unless that omission is taken within the course of some larger activity. See Francis Trindade and Peter Cane, The Law of Torts in Australia (3rd ed, 1999) 400.

[152] Laurence Tribe, ‘The Abortion Funding Conundrum: Inalienable Rights, Affirmative Duties, and the Dilemma of Dependence’ (1985) 99 Harvard Law Review 330, 331:

[W]hat appears at first to be merely a governmental ‘omission’ — for example, failure to fund therapeutic abortions for poor women accompanied by funding of childbirth procedures for the same women — might be regarded ... as a deliberate, ‘active’ choice by government to discourage exercise of a negative individual right.

See also Seth Kreimer, ‘Allocational Sanctions: The Problem of Negative Rights in a Positive State’ (1984) 132 University of Pennsylvania Law Review 1293, 1295.

[153] See Tribe, American Constitutional Law, above n 76, 1689, discussing controversial state action cases: ‘In these cases, it is not so much the basic government action to which litigants object ... Rather, the litigants, objecting to the acts of private parties, sought to portray as support or tacit approval what might be characterized as mere governmental acquiescence in certain acts ...’

[154] DeShaney v Winnebago County Department of Social Services, [1989] USSC 28; 489 US 189, 199–200 (1989). See Estelle v Gamble, [1976] USSC 205; 429 US 97 (1976) (finding that the Eighth Amendment requires the state to provide adequate medical care to incarcerated prisoners); Youngberg v Romeo, 457 US 307 (1982) (holding that the 14th Amendment due process requirement obliges the state to ensure the reasonable safety of involuntarily committed mental patients).

[155] Bandes, above n 148, 2284–5; Kreimer, above n 152; Tribe, ‘The Abortion Funding Conundrum’, above n 152.

[156] See DeShaney v Winnebago County Department of Social Services, [1989] USSC 28; 489 US 189, 198 (1989): ‘within certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals.’ For examples concerning the First Amendment’s free speech guarantee, see Schneider v New Jersey, [1939] USSC 134; 308 US 147 (1939) (city must expend resources to clean up litter rather than deny people who handed out leaflets access to a public forum); Downie v Powers, [1951] USCA10 189; 193 F 2d 760 (10th Cir, 1951) 763–4 (police have a duty to protect speakers from mob action).

[157] See text accompanying below n 162.

[158] Brentwood Academy v Tennessee Secondary School Athletic Association, [2001] USSC 8; 531 US 288 (2001) (Souter J), finding that a statewide association, incorporated to regulate inter-scholastic athletic competition among public and private secondary schools, engaged in state action when it enforced a rule against a member school; this ruling was made because of the pervasive entwinement of public officials in the association’s activities.

[159] Nearly all of the individual rights guaranteed in the United States Constitution contain a ‘state action’ requirement, ie, they can only be violated by some action of government. Notable exceptions are the 13th Amendment’s prohibition on slavery and the constitutional right to travel, which can be infringed by government or private action: Civil Rights Cases[1883] USSC 182; , 109 US 3, 20 (1883); Griffin v Breckenridge, [1971] USSC 118; 403 US 88, 105 (1971); Bray v Alexandria Women’s Health Clinic[1993] USSC 4; , 506 US 263, 297 (1993).

[160] Burton v Wilmington Parking Authority, [1961] USSC 58; 365 US 715, 724 (1961), finding that a coffee shop located in a government parking building could not operate in a racially discriminatory manner. The ‘symbiotic relationship’ of the private coffee shop and the government parking authority ‘indicates that degree of state participation and involvement in discriminatory action which it was the design of the Fourteenth Amendment [equal protection guarantee] to condemn’. Cf Moose Lodge No 107 v Irvis[1972] USSC 134; , 407 US 163 (1972), rejecting a claim that a private club’s racial discrimination violated the 14th Amendment because the club held a state liquor licence.

[161] Brentwood Academy v Tennessee Secondary School Athletic Association, [2001] USSC 8; 531 US 288 (2001); Reitman v Mulkey, [1967] USSC 139; 387 US 369 (1967), finding that a California state initiative allowing persons to sell, lease or rent real property in their ‘absolute discretion’ and thus not subject to state anti-discrimination laws effectively authorised racial discrimination. Cf Jackson v Metropolitan Edison, [1974] USSC 219; 419 US 345, 357 (1974) (Rehnquist J), where the Court rejected an argument that the state authorised or approved an electricity utility’s termination of service policy even though the utility was subject to state regulation:

Approval by a state utility commission of such a request from a regulated utility, where the commission has not put its own weight on the side of the proposed practice by ordering it, does not transmute a practice initiated by the utility and approved by the commission into ‘state action’.

Cf also Flagg Bros Inc v Brooks, [1978] USSC 75; 436 US 149, 164 (1978) (Rehnquist J), rejecting an argument that the proposed sale was attributable to the state because the state had authorised or encouraged the action by enacting the Uniform Commercial Code. The state’s role was ‘mere acquiescence’.

[162] See Marsh v Alabama, [1946] USSC 7; 326 US 501, 506 (1946) (Black J) (holding that the owners of a company town could not abridge the First Amendment rights of residents: ‘Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation’); Evans v Newton, [1966] USSC 2; 382 US 296, 301 (1966) (Douglas J) (finding that a park created by trust was subject to the 14th Amendment and could not be operated on a racially restrictive basis: ‘The service rendered even by a private park of this character is municipal in nature’). But see Hudgens v National Labor Relations Board, [1976] USSC 30; 424 US 507 (1976) (upholding the right of the owners of a private shopping centre to exclude union picketers); Jackson v Metropolitan Edison Co, [1974] USSC 219; 419 US 345, 352 (1974) (Rehnquist J) (limiting a finding of state action to ‘the exercise by a private entity of powers traditionally exclusively reserved to the State’); Flagg Bros Inc v Brooks, [1978] USSC 75; 436 US 149, 160 (1978) (Rehnquist J) (rejecting the argument that a bailor’s proposed sale of goods pursuant to a bailor’s lien under the Uniform Commercial Code constituted state action: ‘This system of rights and remedies, recognizing the traditional place of private arrangements in ordering relationships in the commercial world, can hardly be said to have delegated to Flagg Brothers an exclusive prerogative of the sovereign’ (citations omitted)).

[163] [1997] HCA 25; (1997) 189 CLR 520, 560 (emphasis added).

[164] [1994] HCA 46; (1994) 182 CLR 104. Though rather unconvincingly, the Court in Lange took the position that it did not overrule Theophanous: ibid 554–6.

[165] Importantly, the Court did not simply reformulate the common law rule. Rather, it regarded the new rule as a constitutional rule that supplants the common law:

Because it derives from the Constitution the [newly recognised] defence is available in all Australian jurisdictions, whether the law to be applied is the common law or statute law. Its availability will inevitably have the consequence that the common law defence of qualified privilege will have little, if any, practical significance where publication occurs in the course of the discussion of political matters.

Theophanous [1994] HCA 46; (1994) 182 CLR 104, 140 (Mason CJ, Toohey and Gaudron JJ).

[166] Ibid 153–4.

[167] Lange [1997] HCA 25; (1997) 189 CLR 520, 566. It is not clear why ‘executive power’ is not included here. There is, however, clear authority for the application of the freedom to executive power. See above n 142. See also Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579, considering the application of the freedom to Victorian regulations.

[168] [1997] HCA 25; (1997) 189 CLR 520, 554–6.

[169] Ibid 564, citing McArthur v Williams (1936) 55 CLR 324, 347 (Starke J).

[170] To some extent, this was contemplated in the principal majority judgment in Theophanous [1994] HCA 46; (1994) 182 CLR 104, 126 (Mason CJ, Toohey and Gaudron JJ): ‘the implied freedom is one that shapes and controls the common law. At the very least, development in the common law must accord with its content.’ However, as discussed in above n 165, the majority went further than mere common law development, formulating a constitutional rule to apply to the common law.

[171] [1997] HCA 25; (1997) 189 CLR 520, 571.

[172] John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 172 ALR 625, 644 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), 661 (Kirby J). See also Leslie Zines, ‘The Common Law in Australia: Its Nature and Constitutional Significance’ (Law and Policy Paper No 13, Centre for International and Public Law, Australian National University, 1999) 20–4.

[173] See text accompanying below nn 184–7.

[174] Lange [1997] HCA 25; (1997) 189 CLR 520, 560.

[175] Theophanous [1994] HCA 46; (1994) 182 CLR 104, 146.

[176] Ibid.

[177] Ibid (emphasis added).

[178] Ibid 148.

[179] Ibid 148–9 (Brennan J).

[180] Remembering that in Australia the federal courts are not subject to the restrictions that prevent federal courts in the United States from deciding matters of common law. See below n 197 and accompanying text.

[181] Courts in the Northern Territory and the Australian Capital Territory ultimately derive their authority from Commonwealth legislation (passed under s 122 of the Constitution) which confers legislative power on the Territories. It is not necessary to consider here whether the freedom of political communication therefore directly qualifies the power that self-governing Territories can confer on Territory courts.

[182] See Lange [1997] HCA 25; (1997) 189 CLR 520, 566–7. See also Geoffrey Kennett, ‘The Freedom Ride: Where to Now?’ (1998) 9 Public Law Review 111, 117. It is plausible to argue that the Constitution is concerned with governmental powers more generally, but this merely makes my point. The uncontroversial proposition that the Constitution is concerned with the allocation and control of government power does not necessarily bring with it the conclusion that the Constitution does not apply to the common law. That conclusion depends entirely on how the common law is conceived and, as shown, there is a strong argument that, when courts enforce it, the common law should be seen as an exercise of government power in much the same way as legislative and executive action.

[183] See, eg, Supreme Court Act 1970 (NSW) s 23: ‘The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales.’ See also Supreme Court Act 1933 (ACT) s 23; Supreme Court Act (NT) s 14; Supreme Court Act 1995 (Qld) ss 199–200; Supreme Court Act 1935 (SA) s 17; Supreme Court Civil Procedure Act 1932 (Tas) s 6; Constitution Act 1975 (Vic) s 85; Supreme Court Act 1986 (Vic) s 10; Supreme Court Act 1935 (WA) s 16.

[184] Theophanous [1994] HCA 46; (1994) 182 CLR 104, 153 (Brennan J).

[185] Ibid.

[186] See also ibid 150 (Brennan J) (emphasis added): ‘if it be implicit in the system that the people of the Commonwealth should be able to form and to exercise political judgments, it is implicit that government should not unnecessarily restrict their ability to do so. ... Thus the powers of government are impliedly limited.’

[187] Sir Richard Buxton, ‘The Human Rights Act and Private Law’ (2000) 116 Law Quarterly Review 48, 59 has made a similar argument with respect to the application of the Human Rights Act 1998 (UK) c 42 (which incorporates much of the European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 June 1952) into English law) to the common law applied in disputes between individuals. He argues that the the European Convention for the Protection of Human Rights and Fundamental Freedoms and, therefore, the incorporation of it by the Human Rights Act 1998 (UK) c 42 creates rights only against governments (including public authorities) and that, as a result, the Human Rights Act 1998 (UK) c 42 has no effect on the common law.

[188] [1964] USSC 40; 376 US 254 (1964).

[189] Ibid 265 (Brennan J) (emphasis added).

[190] This point was made as long ago as 1883. See Civil Rights Cases[1883] USSC 182; , 109 US 3, 26 (1883) (Bradley J): ‘An individual cannot deprive a man of his right[s] ... [H]e may by force or fraud, interfere with the enjoyment of the right in a particular case ... [but] unless protected in these wrongful acts by some shield of State law or state authority, he cannot destroy or injure the right.’

[191] Pt I of the Constitution Act 1982, being sch B to the Canada Act 1982 (UK) c 11

[192] Retail, Wholesale and Department Store Union v Dolphin Delivery Ltd [1986] 2 SCR 573, 600–1; 33 DLR (4th) 174, 196 (McIntyre J). See Brian Slattery, ‘The Charter’s Relevance to Private Litigation: Does Dolphin Deliver?’ (1987) 32 McGill Law Journal 905.

[193] Retail, Wholesale and Department Store Union v Dolphin Delivery Ltd [1986] 2 SCR 573, 600; 33 DLR (4th) 174, 196 (McIntyre J).

[194] See Slattery, above n 192, 918–19.

[195] Ibid 919.

[196] [1997] HCA 25; (1997) 189 CLR 520, 563, quoting Sir Owen Dixon, ‘The Common Law as an Ultimate Constitutional Foundation’ (1957) 31 Australian Law Journal 240, 241.

[197] As a consequence, federal courts have no general power to develop the common law: Erie Railroad Co v Tompkins, [1938] USSC 94; 304 US 64 (1938).

[198] The incorporation doctrine depends on an elaborate interpretation of the 14th Amendment ‘due process’ requirement. The 14th Amendment requires that ‘[n]o State shall ... deprive any person of life, liberty or property, without due process of law’. Although the Supreme Court resisted the argument that the requirement to act with ‘due process of law’ meant that the states were bound by the first 10 amendments (the Bill of Rights) in their entirety, it has allowed ‘selective incorporation’, ie, it has recognised on a piecemeal or case-by-case basis that ‘due process’ requires adherence to Bill of Rights requirements. The cumulative effect of this is that most of the Bill of Rights now applies to the US states and, indeed, the notion of ‘due process’ is even broader. See Tribe, American Constitutional Law, above n 76, 772–4.

[199] It could also be that the High Court is placing some emphasis on the words ‘any law’ in the 14th Amendment — words that it quotes: Lange [1997] HCA 25; (1997) 189 CLR 520, 563. The Amendment reads in part: ‘No State shall make or enforce any law which shall abridge the privileges and immunities of citizenship.’ Perhaps the argument is that these words explain why the rights of the American Bill of Rights apply to the common law. If this is the argument, two answers can be made. The first is technical. As a matter of American constitutional doctrine, the incorporation of the Bill of Rights against the states is an interpretation of the ‘due process’ clause (which does not include those words) not the ‘privileges and immunities’ clause. See Tribe, American Constitutional Law, above n 76, 772. Second, and more importantly, that explanation is not consistent with the reasoning in cases like New York Times v Sullivan. It is clear from these cases that the Court applies the Constitution to the common law not in response to the text of the Constitution but because it regards judicial enforcement of the common law as a ‘form [of] ... state power’. See above n 189 and accompanying text.

[200] See above Part IV(B)(2).

[201] The High Court’s position that the common law and the Constitution form ‘one system of jurisprudence’ in which the common law must conform to the Constitution is drawn from Sir Owen Dixon’s essays. See Sir Owen Dixon, ‘Sources of Legal Authority’ in Sir Owen Dixon, Jesting Pilate (1965) 198. See also Sir Owen Dixon, ‘The Law and the Constitution’ in Sir Owen Dixon, Jesting Pilate (1965) 38; Dixon, ‘The Common Law’, above n 196.

[202] [1951] HCA 5; (1951) 83 CLR 1. See generally Wait, above n 126.

[203] See Theo Varvaressos, ‘Lange v Australian Broadcasting Corporation: A Case Study of the Interaction of the Constitution and the Common Law’ (Paper submitted for the Research Unit, Faculty of Law, Australian National University, 1998) 16–17, who completes the argument, explaining that, consistent with Dixon’s view, the Constitution ordinarily prevails over the common law just as any statute prevails over inconsistent rules of the common law.

[204] Wait, above n 126, 72.

[205] See text accompanying above n 185.

[206] Slattery, above n 192, 920–1 makes the same point with respect to the Canadian position requiring the courts to develop the common law consistently with fundamental constitutional values:

The problem is that any such judicial role seems inconsistent with the premise that the Charter does not extend to private disputes governed by the common law ... If the Courts ‘ought’ to develop the common law in the way suggested, this can only mean that they have some sort of duty to do so. This duty must stem from the Constitution itself, for it is difficult to see where else it might come from.

[207] On the advantages of building upon an established body of law rather than inventing a new ‘free-standing’ constitutional doctrine, see Adrienne Stone, ‘Freedom of Political Communication, the Constitution and the Common Law’ (1998) 26 Federal Law Review 219.

[208] See above n 162.

[209] In one influential account, state action was described as ‘little more than a name for a contention that has failed to make any lasting place for itself as a decisional ground, and that has failed of intellectual clarification’: Charles Black Jr, ‘Foreword: “State Action,” Equal Protection, and California’s Proposition 14’ (1967) 81 Harvard Law Review 69, 95. See also Reitman v Mulkey, [1967] USSC 139; 387 US 369, 378 (1976) (White J), quoting Burton v Wilmington Parking Authority, [1961] USSC 58; 365 US 715, 722 (1961) (Clark J):

This Court has never attempted the ‘impossible task’ of formulating an infallible test for determining whether the State ‘in any of its manifestations’ has become significantly involved in private discriminations. ‘Only by sifting facts and weighing circumstances’ on a case-by-case basis can a ‘nonobvious involvement of the State in private conduct be attributed its true significance.’

[210] [1948] USSC 63; 334 US 1, 19 (1948) (Vinson CJ) (‘Shelley’). The Court held:

We have no doubt that there has been state action in these cases in the full and complete sense of the phrase. The undisputed facts disclose that petitioners were willing purchasers of properties upon which they desired to establish homes. The owners of the properties were willing sellers ... It is clear that but for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint.

[211] Gerald Gunther and Kathleen Sullivan, Constitutional Law (13th ed, 1997) 938. See also Herbert Wechsler, ‘Toward Neutral Principles of Constitutional Law’ (1959) 73 Harvard Law Review 1, 29–31.

[212] I have adapted an illustration given by Wechsler, above n 211, 31.

[213] At least where the private property is a private home, rather than a privately owned area used by the public. See above n 162.

[214] [1964] USSC 40; 376 US 254 (1964).

[215] Tribe, American Constitutional Law, above n 76, 1711: ‘The general proposition that common law is state action — that is, that the state “acts” when its courts create and enforce common law rules — is hardly controversial’. See also Wechsler, above n 211. Despite his criticism of Shelley, Wechsler (at 29) acknowledges nonetheless: ‘That the action of the state court is action of the state ... is, of course, entirely obvious.’ For attempts to define the limits of state action, see Louis Henkin ‘Shelley v Kraemer: Notes for a Revised Opinion’ (1962) 110 University of Pennsylvania Law Review 473, 481–7; Tribe, American Constitutional Law, above n 76, 1700.

[216] Tribe, American Constitutional Law, above n 76, 1715 (citation omitted; emphasis in original) has suggested that Shelley could be explained on the basis that ‘neutrality does not suffice in matters of racial segregation in housing, or that the state’s contract and property rules ... were not in fact neutral in their enforcement of racial restraints on alienation while treating many other restraints as unenforceable.’

[217] Lange was a unanimous judgment that followed a number of divided decisions on the freedom of political communication and implications from representative government generally (see Theophanous [1994] HCA 46; (1994) 182 CLR 104; Stephens v West Australian Newspapers [1994] HCA 45; (1994) 182 CLR 211; McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140) and required most Justices to abandon some aspect of their previously held opinion. Winterton, above n 126, 2, fn 15 has written of the case: ‘who could have predicted that five justices — Brennan CJ, Dawson, McHugh, Toohey and Gaudron JJ — would abandon previously held views?’

[218] Stone, ‘The Limits of Constitutional Text and Structure’, above n 22.

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