University of Technology, Sydney Law Review
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Katharine Gelber[*]
Since the 1992 free speech cases in the High Court, which elucidated an implied freedom of political communication in the Australian Constitution, the question of what this freedom means in terms of the practice of political speech has been often overlooked. This paper examines the scope of the freedom from the perspective of struggles over its meaning and implementation. In order to investigate the impact and meaning of the freedom of political communication, I will first analyze the “free speech” decisions to establish the parameters of the High Court’s jurisprudence. Within this context, the specifi c question of the regulation of pedestrian malls by local governments is examined. In both Queensland and Tasmania, pedestrian malls, which would under many circumstances be considered
public space, are regulated in a manner which restricts free expression. These restrictions are examined in terms of what they reveal about the scope and implementation of the negatively conceived liberty of an implied constitutional freedom of political speech in, arguably, public spaces. The argument of this paper is threefold. Firstly, the existence of a legally defined limitation on governmental power does not always, or necessarily, in practice prevent governmental abuses of power. More importantly, the freedom of political communication currently extant in the Australian polity is partial and unsatisfactory. Finally, this in turn implies the need
for stronger protections for political communication within Australia.
With the exception of the constitutional freedom of communication on political matters, free speech in Australia has historically been a residual freedom protected by the common law.[1] Speech that is free is that which is not restricted by laws of limited scope such as, for example, defamation, libel, sedition, obscenity, commercial confi dentiality or
privacy laws. However, in 1992 the High Court brought the issue of free speech into prominence and brought down its judgement in two landmark cases,[2] which recognized the implied freedom of political communication within Australia’s constitutional system of representative and responsible government. The justices held that because the Australian Constitution enshrined a system of representative government, this implied the need for freedom of communication on “political” matters.[3]
The findings were greeted with a range of criticisms.[4] Some argued they represented over extended reasoning[5] or overstepped the High Court’s democratic role and usurped parliament,[6] while others saw the decisions as opening up a new constitutional vision based on representative government and popular sovereignty, instead of parliamentary sovereignty.7 Justice Kirby expressed optimism that the decisions might be a “portent of things to come” in providing more explicit protections for free speech.[8]
The 1992 cases found that two federal statutes were unconstitutional. In Nationwide News Pty Ltd v Wills, the High Court found a federal statute9 invalid which restricted public criticism of a government institution, the federal Industrial Relations Commission, which might bring it or its members into disrepute. In Australian Capital Television v Commonwealth, the High Court found a Commonwealth statute[10] invalid which restricted access to political broadcasts on radio and television during referenda and election campaigns for both the Commonwealth and the states.[11] In Australian Capital Television, the court referred to Australia’s free speech obligations under Article 19(2) of the International Covenant on Civil and Political Rights,[12] to earlier cases which had recognized the importance
of the freedom to criticize government action,[13] and also cited United States First Amendment cases in support of its fi ndings.[14] The legislature’s justifications for enacting the legislation had included the reduction of financial pressure on political parties, the facilitation of equal access to electronic broadcasting, and the extension of political communication by encouraging longer broadcasts rather than brief advertisements.[15]
The judges held that the Constitution establishes and entrenches the Australian system of government as a system of “representative government”.[16] This means those who exercise legislative and executive power are directly chosen by and accountable to the people, and exercise their powers as representatives of the people.[17] The judges extrapolated from this that freedom of communication on “political” matters was an
“essential”, “necessary”, “indispensable”, “presupposed” or “inherent” element of representative democracy.[18] They therefore concluded that the Constitution implies a protection of freedom of political communication.
Some attempts were made to define both the form and content of the freedom of political communication. In form, the freedom was regarded as having an “institutional ... rather than individual foundation”,[19] meaning that it facilitates the institutions of representative government rather than individual rights per se. That is to say, the freedom was not interpreted to be a right for individuals to communicate on political matters, but rather as a burden on government to ensure that institutions work in accordance with the principles and assumptions inherent in the text and construction of the Constitution which establishes the, presumed democratic, representative system of government. In this sense, it can be argued that the freedom was conceived “negatively”. Since the emergence of contractarian thought in the 17th century, conceptions of liberty have tended to be “negative”, conceived of as the absence of constraint.[20] An absence of constraint appears to be implied here as the means by which the freedom may be achieved. I have argued elsewhere that because the negative conception of liberty is dominant in contemporary liberal democratic orders,[21] a negative
conception of the speech liberty also predominates.[22] The example here of the implied freedom of political communication resting in the Australian Constitution confirms this argument.
In terms of content, the 1992 freedom was limited to political communication, not communication generally.[23] In the ACTV and Nationwide judgements, “political” communication was interpreted primarily to mean discussions of issues of public affairs, expressions critical of government policies and institutions, and criticism of candidates for election. Later judgements, as I will explain below, reconsidered the conceptualization of political communication.[24]
In later cases, the High Court extended, and then limited, the implied constitutional freedom. Two cases in 1994 have been described as the “high watermark”[25] of the freedom. In Theophanous v Herald and Weekly Times Ltd,26 the justices held that the freedom limited public offi cials’ ability to claim defamation.[27] The justices were informed by the US Supreme Court’s decision in New York Times Co v Sullivan,28 which demanded that a public person prove “actual malice”[29] in order to claim defamation.[30] In this judgement, the definition of political communication was broadened to include matters of general public debate which might inform public opinion on a range of issues.[31]
In Stephens v West Australian Newspapers Ltd,[32] another defamation case, the justices held that freedom of political communication can be invoked
against state laws.[33] At this point, then, the freedom was expanded as the scope of “political” communication was signifi cantly broadened.[34] Soon after these judgements, changes were made to the make-up of the High Court bench. Although it has been suggested by some commentators that changes in the composition of the Court provide an insufficient basis for overriding precedent,[35] to others such changes can have a “major effect” on the Court’s direction.[36]
Despite the emphasis in ACT and Nationwide on political communication around elections for public offi ce, in Muldowney v South Australia,37 a South Australian electoral law which prevented the advocacy of informal votes was upheld. In Langer v Commonwealth,[38] similar provisions at commonwealth level were also upheld.[39] Given that these decisions revolved around the advocacy of ways of voting, these decisions seem important in demonstrating the lack of application of the freedom in practice. To vote informally is not illegal. To advocate an informal vote, however, may be restricted by law. These are examples of the far-reaching restrictions that have been considered by the Court legitimate and therefore not incompatible with the freedom.
In McGinty v Western Australia,[40] the justices specifically rejected a broad reading of the content of the freedom, based on ideals of representative or responsible government, as “too far removed from the text of the Constitution”.[41] The judgement emphasized the need for the freedom to be read in a manner bound by the text and construction of the Constitution, not based on a broader concept removed from the Constitution.
The next year, in 1997, a unanimous decision in Lange v Australian Broadcasting Corporation[42] reconsidered the constitutional defence against defamation established in Theophanous. The justices argued that the common law of defamation had to “conform to the requirements of the Constitution”.[43] The High Court specifically drew the freedom back to an immunity against legislative and executive action, and rejected the idea of a constitutional defence to the common law.[44] Williams and Patapan reiterate
that in Lange the freedom was conceived negatively, as an immunity from legislative and executive action,[45] and that, as in McGinty, the text of the Constitution was seen to provide the basis for the freedom.[46]
By 1997, then, the form and content of the freedom of political communication had been reconsidered by the High Court. In terms of the form, the freedom was regarded as institutional, meaning that it provided for immunity against legislative and executive powers. This limits the conception of the freedom. It is not a “right” as such, even a right derived from the institutions of representative and responsible government, as Patapan suggests.[47] Stone argues that the freedom is consistent with “some level of concern for individual autonomy”,[48] because individuals need access to ideas to vote in an informed way, to become involved in public debate, and to legitimize a democratic state. This argument is convincing in exploring the reasoning and the meaning residing within the freedom. The point I am making here, however, is that the application of the freedom by the High Court at this point has been conceived in terms of a limitation on government/institutional activity. The concern is to limit government’s ability to restrain or prohibit political communication. The freedom ought thus in practice be an immunity from actions of government.
The areas of government from which one might claim immunity are limited to those actions of government which may be interpreted with reference to the text and structure of the Constitution.[49] What this means precisely is a matter of some debate. Stone argues any attempt to interpret the freedom by reference only to text and structure is “unsustainable” because considerations of the application of the freedom will necessarily draw inference from values or principles external to the Constitution (1999:
668). If this is the case, then again it is the application of the freedom in the day-to-day struggles of people seeking to express themselves politically that seem important to evaluate. In other words, has the finding that the freedom exists enhanced protection for political communication?
Secondly, the content of the term “political communication” has remained conceptually broad in the sense that it may include discussion of politics related to federal matters. This is likely to cover a great deal of political debate. However, Stone also critiques some outcomes in other courts where a communication was found to be not “political”, and argues the meaning of “political” should be more broadly read than was the case in these decisions.[50] However, even in cases where discussion has been determined to be “political”, such as during election campaigns, the
freedom may not extend to its protection if the restriction is regarded as warranted, as occurred in Muldowney and Langer.
This conception of freedom of political communication allows, according to the High Court, a test of application to be brought against a law perceived to violate the freedom. That test is to ask, first, whether a law burdens freedom of communication, and secondly (and if the answer is affirmative) whether the law is
reasonably appropriate and adapted to serve a legitimate end the fulfi lment of which is compatible with the maintenance of the constitutionally pre- scribed system of representative and responsible government.[51]
If the answer to the latter question is no, the law is invalid. In the Levy v Victoria[52] case, this test was utilized, although Justice Gaudron implied that a consideration which could be brought to bear in deciding the test would be whether the law’s direct purpose was to restrict political communication, or whether a restriction was achieved incidentally as a corollary to another aim.[53] This implies that if the former were the case, the law could require a stronger public purpose defence than if the latter interpretation were to apply.
The application of this test ought, it could reasonably be assumed, to apply the principles outlined by the High Court in its judgements at all levels of government in Australia. It ought to shape public policy concerning the regulation of political communication, including in public spaces. It is the application of the judgements, rather than the reasoning behind them, which is the focus of the rest of this paper. Below, I seek to trace the battle lines of this freedom on the ground. Having the law is one thing, ensuring it is meaningful in the context of day-to-day political struggles is another. I turn now to an examination of two specific case studies which might illustrate this struggle, in the context of contestations over political communication in public spaces.
Public Space: Contestation and Regulation
Local councils in Australia regulate the use of public spaces such as parks, recreation areas and pedestrian malls, although the extent to which such by- laws intrude on freedom of political communication varies considerably.[54]
Pedestrian malls[55] present a particular dilemma for regulators because they are contested sites. In particular, contestation takes place over their role as commercial sites as against their role as urban democratic, public space where citizens may gather and engage in civic pursuits.[56]It has been argued that public squares in the modern era were architecturally designed for the purpose of facilitating the democratic ideal of creating spaces in which individuals could gather to discuss and debate political issues.[57] For political activists, public spaces are sites in which issues may be debated, campaigns may be waged, and the public may have an opportunity to become informed. Pedestrian malls provide a particular opportunity for political communication which is not possible on any ordinary street corner. The lack of vehicular traffic, the provision of relatively unobstructed open space, and the opportunity to congregate within a city centre seem especially suited to the conduct of political communication. Councils’ attempts to regulate these spaces therefore place them in an awkward position. They are trying to balance the often competing demands of private consumption and public acquittal/performance, a dilemma made all the more difficult by the consideration of opportunities for engagement in political communication.
TOWNSVILLE: THE FLINDERS PEDESTRIAN MALL
The Townsville City Council regulates the use of Flinders Pedestrian Mall,[58] prohibiting inter alia that any person “take part in any public demonstration or public address ... in or upon a pedestrian mall without a permit in writing from the Council” (paragraphs 8(2)(e) and (g)). These clauses, while they do not use the word “political”, quite clearly are directed at activities which would be considered political activity within public space. The organization of demonstrations and public addresses, by and to a gathering of people, are intrinsically “political” activities and they are activities which the Council itself has specifically chosen to target in the by-law. The use of amplified sound is similarly prohibited. A permit may be granted subject to the lodging of a written application, and payment of a prescribed fee, however the Council may grant or refuse a permit or subject a permit to “such conditions as the Council shall think fit” and the by-laws
place no obligation on the Council to provide reasons for their decision, nor is Council required to conform to specified guidelines or standards in making its determination. This, at first sight, extraordinary, intrusion on the right of individuals to engage in political protest or campaigning in the Flinders Pedestrian Mall contains an important exclusion. The by-laws contain a caveat exempting “the setting up and use of a booth for religious, charitable, educational or political purposes” or for use near a polling place or in relation to any election (paragraph 8(1)). In this way, an important and well-known means of public communication and information dissemination in the context of election campaigns is immune from the requirement for a permit, and paragraph 8(1) appears consonant with the form and content, as well as the spirit, of the freedom of political communication enunciated thus far.
However, paragraph 8(2) raises serious concerns. The validity of these concerns was affirmed in 1999 when, one Sunday morning, during a normal market day, a university student held up a flag, stood on the concrete rim of a fountain and on concrete tables, and loudly discussed a number of issues including bills of rights, mining, land rights, the Wik decision, and free speech.[59] The student, Patrick Coleman, was convicted of breaching paragraph 8(2) of the by-law in question. His appeal to the Supreme Court of Queensland, on the ground that the by-law infringed the freedom of political communication, failed. When Coleman applied to the High Court for special leave to appeal the decision of the Queensland Supreme Court, his application was denied. The primary reason given by Justice Gaudron for the denial was that the existence of this caveat allowing the setting up of “booths” without a permit in the Townsville by-law was suffi cient to protect political speech.[60]
The justices who dismissed the appeal in the Supreme Court of Queensland applied the test of application outlined above. In terms of whether the law burdens freedom of communication about government or political matters, the answer would appear to be yes. It is open to argument whether the burden arises directly as the aim of the by-law, or whether the burden is an indirect consequence of the somewhat different aim of trying to ensure an effective combination of commercial activity and private enjoyment of the public space that the mall constitutes. Certainly, Justice Pincus argued that the purpose of the regulation of public addresses in malls was “likely to have been to preserve those wishing to use them from being harangued about any matters”,[61] thus seeing the restriction as secondary
to, and not the primary purpose of, the by-law. Justice Muir, in dissent, concurred on this point that the aim of the by-law was the legitimate one of maintaining public safety and “balancing competing interests”.[62]
The second question, that of whether the law is reasonably appropriate and adapted to serve a legitimate government end compatible with the constitutional system of government, is more difficult to answer. The majority justices, with respect, argued it was. Factors which contributed to their reasoning included that the mall in question constituted only a “minute part of the area governed by the council”, and thus many other public spaces allowed for unrestrained and unregulated public demonstrations and public addresses.[63] Furthermore, the by-law was
“content-neutral”, and thus did not regulate discussion of one topic
(such as land rights, for example) and not another (such as euthanasia, for example), and thus was not overbroad.[64]
However Justice Muir, in dissent, raised some other important points. One of these was that the nature of pedestrian malls made them “inherently useful as venues for the effective exercise of free speech”.[65] This implies their use as political public space. The idea of public space as important to democratic deliberation was also raised in the Levy case by Justice Kirby, who mentioned that the duck shooting area in which the protest was taking place was “no Hyde Park”,[66] meaning that it was not a traditional public form in the sense in which a public forum is understood in United States courts.[67] This seems a crucial point to make with regard to Patrick Coleman. Coleman was orating on a market day, a day when it would be expected that people would gather in larger than normal numbers. These conditions seem ripe for political debate. Moreover, the activity undertaken by Coleman was in a space regarded by many as a public one, despite its commercial emphasis.
Thus, there is a basis for arguing that the implicit privileging of commercial interests over a freedom to speak on (broadly defi ned) political issues does not recognize the particular public role that is made possible by a pedestrian mall on a market day. This is a public space (albeit historically a relatively recently constituted one). The topics which were being discussed by Coleman could normally be regarded as a discussion of political matters, conforming to the interpretation developed by the High Court.
Perhaps it is the clause in the Townsville Council’s by-law requiring a permit which needs to be challenged most strongly. The Council is granted
extraordinary power to reject or place conditions on a permit. Furthermore, the time and expense required to lodge a permit seem to counter the intuitive idea that political ideas may arise quickly. Indeed, this was the second important point raised by Justice Muir in dissent. “In order to be effective”, he argued, a public demonstration or public address “may need to be held or given within days or even hours of a matter arising, or before an event takes place”.[68] This idea has also been aired in the US courts, where in the Skokie case a village ordinance which gave officials the power to deny use of a public forum in advance (based on an anticipation that the march would violate an ordinance prohibiting the promotion of hatred on the basis of race or heritage) was rejected as prior restraint and found unconstitutional. Reasonable regulations of time, place and manner were permitted.[69]
In a very recent case, the US Supreme Court held that requiring door- knockers to obtain a permit was unconstitutional. The Court argued that door-to-door canvassing had a historical importance as a vehicle for the dissemination of ideas, and that the necessity for a permit affected too wide a variety of “causes”.[70] In the Townsville case, Coleman had not made any attempt to obtain a permit in advance. However, as has already been noted, the Council possesses wide powers to deny such permits. Furthermore, if the nature of some political debate is that issues can arise rapidly, the burden on individuals to apply for a permit through official channels is time consuming and costly, and contains no guarantee of success. Overall, these procedures impose a considerable burden on individuals wishing to speak in the Flinders Mall.
Before drawing specific conclusions from this case, it is appropriate to turn now to an examination of the second case study. The Tasmanian case illustrates both similarities with and differences from the Townsville case, and lends further weight to the discussion.
HOBART: THE ELIZABETH STREET PEDESTRIAN MALL
The Elizabeth Street Pedestrian Mall is regulated by the Hobart City Council.[71] Part 8 of the by-law (“Malls”) prohibits the undertaking of several activities in the Mall without a permit. These activities include offering anything for sale, the itinerant vending of goods, holding or attending a meeting, and taking part in a meeting to “discuss, protest or speak on any political matters or issues”.[72] The last of these clauses particularly targets
activities ordinarily conceived of as “political” within a public space, and in the Hobart case the Council even uses the word “political” in its by- law. Although this by-law then makes similar provisions to those in the Flinders Mall in Townsville, it does not contain any general exemption for polling or election campaign purposes. A person must apply for a permit in writing, providing details including the activity to be undertaken and the location and extent of the activity.[73] Unlike the Townsville case, there are reasons set out under which the General Manager may decline an application, although these are written broadly and include pedestrian amenity and safety, the maintenance of public order, the movement of traffic and the effect on other vendors in the area.[74] These are considerable powers indeed.
In November 2001, officers from the Hobart City Council ordered distributors of the street newspaper Green Left Weekly to leave the Elizabeth Street Mall where they were attempting to sell papers. Green Left Weekly describes itself as a “proudly independent voice committed to human and civil rights, global peace and environmental sustainability, democracy and equality” (http://www.greenleft.org.au). During ensuing weeks, Green Left Weekly distributors applied for a permit to enable them to sell their newspapers in the Elizabeth Street Mall. Hobart City Council refused to grant them a permit, citing “the interests of pedestrian movement and amenity”[75] and also stating that the Mall “is a place where commercial activities are restricted”.[76]
The newspaper was sold by one or several individuals standing in the Mall and holding up one or several newspapers at a time. It is possible that the newspaper distributors also left a bag containing personal belongings near them. The physical space constituted by the distribution of the newspaper then was, at best, only marginally greater than the physical space occupied by an ordinary shopper carrying shopping bags. Perhaps the physical difference between a newspaper distributor and ordinary shoppers is the length of time each individual spends occupying his or her physical space. However, malls are designed to encourage shoppers to spend longer periods of time within an urban centre by providing seating and ornamentation. This renders the temporal difference invalid. Also, as had been the case in Townsville, no amplification was used by the newspaper distributors to assist their sales.
If it was the commercial nature of the newspaper’s distribution that led to the application for a permit being declined, the by-law also provides that in determining whether or not to grant a permit, the Council take
into account the effect on other premises in the area, including on those who trade in similar wares to those proposed for sale. Green Left Weekly is not available for sale in newsagencies, so distribution of the newspaper is unlikely to have affected the profi t margins of other newspaper sellers in the area. It is also difficult to characterize the sale of a street-based, political newspaper with a small distribution base as properly a “commercial” enterprise.
After the permit was denied, the newspaper continued to be distributed in the Elizabeth Street Mall and at the time of writing the Council has not enforced its decision of November 2001 by summoning the police to eject the distributors from the Mall.[77] This case has therefore never been to a court of law.
What of the application of the test of application as a way of deciding the validity of the by-law? It would appear that the law does burden freedom of communication about government or political matters. Is the by-law then reasonably appropriate and adapted to serve a legitimate end? The relevant by-law in Hobart applies, as in Townsville, only to a pedestrian mall and not to an entire city area. Given the result in Townsville it would also be likel that the by-law would be regarded as content-neutral. These points augur in favour of its legitimacy.
Other points of contestation that were raised in relation to the Townsville case also arise here. The first of these is the idea that the Elizabeth Street Mall is an inherently useful venue for the exercise of free speech. Indeed, the distribution of non-commercial newspapers on street corners would appear to be an example of political expression which historically precedes the creation of pedestrian malls. It seems likely that pamphleteers and political activists have distributed written propaganda in city centres for at least a century.
Secondly, enforcing a permit requirement on political activity may in some circumstances be considered to act as a prior restraint on political activity. Prior restraint is of particular concern because it prevents people from even engaging in the exercise of speech in anticipation of consequences, and does not allow the speech to occur first and the consequences to be dealt with later. The requirement for a permit to engage in political behaviour, combined with the Council’s far-reaching powers to deny such a permit, are of concern. These two cases, then, have important implications for the scope of the freedom of political communication, when viewed against some Council by-laws regulating the use of pedestrian malls as a contemporary public space.
Political Speech At Risk
In both the Townsville and Hobart cases, the Councils possess far-reaching powers to prevent individuals from undertaking both commercial and non-commercial activities in malls. The kinds of activities which may be prohibited include those of an intrinsically political nature, such as the selling of street newspapers or orating on contemporary political issues relevant to government policy-making. Activities undertaken by individuals standing alone in a pedestrian mall, unamplified and subject only to the natural contours of the human voice range may be prohibited. All these matters seem important when trying to decide whether the by-laws are reasonably appropriate and adapted to serve a legitimate end compatible with the constitutional system of government. They are also important when trying to decide whether political speech is adequately protected under the existing common law and constitutional systems.
To return to the framework within which the freedom of political communication was outlined in the Australian High Court, several pertinent characteristics were outlined. First, the freedom is an institutional one which relies on an absence of constraint. This places a particular onus on government at all levels—an onus to err on the side of caution when enacting by-laws or laws that give them a range of powers which are enforceable against members of the public. Government ought to be particularly mindful of the need for restraint in the arena of free speech. Such caution is not evidenced in the Townsville and Hobart City Councils’ by-laws. On the contrary, the by-laws appear to grant the Councils very wide powers to restrict political speech. This is done in a prior manner by requiring permits for political activity, and by being able to refuse applications for a permit on a broad, and even unspecifi c, range of grounds.
The freedom is also limited to activities consonant with the text and structure of the Constitution and not based on ideals too far removed from it. In practice, determining this boundary is likely to be difficult. Are the ideas of distributing a political newspaper and loudly pronouncing on the merits or demerits of government legislation on native title far removed from the text and structure of the Constitution? Sections 7 and 24 specify that both Senators and Members of the House of Representatives must be
“directly chosen by the people”. The range of issues under consideration by the people and relevant to the choice of federal political representatives has grown considerably since Federation. Expectations of government have expanded, and governments are now legislating in areas that were unthinkable a century ago, including native title. It seems not too long a bow to draw to argue that issues such as native title, or a bill of rights, or the activities of Australian governments are proper areas of discussion in public fora if the people are to be able to make an informed choice when electing their representatives.
But in these two cases at least, the point is that in spite of the existence of the implied freedom of political communication, considerable inroads on freedom of political communication have been made by local governments. In one of the cases, these inroads were also considered compatible with the freedom and not an infringement of it. This implies several things. First, despite the breadth in conceptual content of the freedom provisions designed to achieve a purpose other than the restriction of political speech may be granted legitimacy within the current regulatory framework. This can occur even though those provisions may in practice grant local government considerable power to restrict political speech. Secondly, the apparent recasting of some areas of public space as commercial renders them potentially more easily regulable. This raises challenges for the retention of democratic public spaces which are particularly well-suited to the exercise of political communication.
This renders the existing freedom partial and unsatisfactory. The freedom is to some extent reliant on the goodwill of local, state, territory and federal governments to be maintained. The freedom relies for its interpretation on the text and structure of a Constitution written over a century ago, when people’s and governments’ activities were differently conceived and executed from today. It exists within a political context devoid of an individual and explicit free speech “right”.
This raises the possibility that the goodwill upon which the freedom relies is less conscious of the existence of, and need for, the freedom than might otherwise be the case. It might be possible that the lack of an explicit free speech right has engendered a political culture within which freedom of political speech is not at the forefront of policy-makers’ minds when they are adjudicating competing interests in the use of public space. At the least, it seems plausible to argue that city councillors are more likely to be aware of the need to respond to directly perceptible and tangible commercial interests than to preserve an intangible and indirect awareness of a freedom of political communication.
All of this implies the need in Australia for greater protection for political speech. It seems unlikely, given the partial nature of the current freedom, that this could occur via the courts. This leaves open the options of implementation via a statutory or constitutional bill of rights. The latter would require a referendum, the likely result of which is unclear. Detailed consideration of the means by which protections for political speech might be strengthened would be the topic of another paper. For now, it appears viable to argue that such a change is necessary.
Bibliography
Aroney, Nicholas, 1995. “A Seductive Plausibility: Freedom of Speech in the
Constitution”, University of Queensland Law Journal 18, 249–274.
———, 1998, Freedom of Speech in the Constitution. Centre for Independent
Studies, Sydney.
Barendt, Eric, 1994, “Free Speech in Australia: A Comparative Perspective”,
Sydney Law Review 16 (2), June, 149–165.
Campbell, Tom, 1994, “Democracy, Human Rights and Positive Law”,
Sydney Law Review 16 (2), June, 195–212.
Chesterman, John, 2001, “Sellars v Coleman: The Limits of Free Speech”,
Australian Journal of Political Science 36 (2), 373–375.
Chesterman, Michael, 2000, Freedom of Speech in Australian Law, Ashgate, Aldershot.
Cohen, L., 1996, “From Town Center to Shopping Center: The Reconfiguration of Community Marketplaces in Postwar America”, American Historical Review 101, 1068–1071.
Douglas, Neil, 1993. “Freedom of Expression under the Australian
Constitution”, University of New South Wales Law Journal 16 (2), 315–350. Fraser, Andrew, 1994, “False Hopes: Implied rights and Popular Sovereignty in the Australian Constitution”, Sydney Law Review 16 (2), June, 213–227. Gelber, Katharine, 2002, Speaking Back: The Free Speech versus Hate Speech
Debate, John Benjamins, Amsterdam.
Glass, Arthur, 1995, “Freedom of Speech and the Constitution: Australian Capital Television and the Application of Constitutional Rights”, Sydney Law Review 17 (1), March, 29–42.
Kirby, Michael, 1993, “Freedom of Expression: Some Recent Developments”,
Commonwealth Law Bulletin 19 (4), October, 1178–1781.
Kirk, Jeremy, 1995, “Constitutional Implications from Representative
Democracy”, Federal Law Review 23 (1), 37–76.
Mattson, Kevin, 1999, “Reclaiming and Remaking Public Space: Toward an Architecture for American Democracy”, National Civic Review 88 (2), Summer, 133–144.
McDonald, Leighton, 1994. “The Denizens of Democracy: The High Court and the ‘Free Speech’ Cases”, Public Law Review 5 (3), September, 160–
198.
Patapan, Haig, 2000, Judging Democracy, Cambridge University Press, Melbourne.
Sandercock, Leonie, 1997, “From Main Street to Fortress: the Future of
Malls as Public Spaces—or—Shut up and Shop”, Just Policy 9, March,
27–34.
Skinner, Quentin, 1984, “The Idea of Negative Liberty: Philosophical and Historical Perspectives”, in Rorty, Schneewind and Skinner (eds),
Philosophy in History: Essays on the Historiography of Philosophy, Cambridge
University Press, Cambridge.
Stone, Adrienne, 1998a, “Freedom of Political Communication, the
Constitution and the Common Law”, Federal Law Review 26, 219–257.
———, 1998b, “Lange, Levy and the Direction of the Freedom of Political Communication under the Australian Constitution”, University of New South Wales Law Journal 21 (1), 117–134.
———, 1999, “The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication”, Melbourne University Law Review 23 (3), December, 668–708.
———, 2001. “Rights, Personal Rights and Freedoms: The Nature of the
Freedom of Political Communication”, Melbourne University Law Review 25
(2), August, 374–418.
Sunstein, Cass, 1995. Democracy and the Problem of Free Speech, The Free Press, New York.
Williams, George, 1998. “Freedom of Political Discussion and Australian
Electoral Laws”, Canberra Law Review 5 (1/2), 151–175.
———, 2002, Human Rights under the Australian Constitution, Oxford
University Press, Melbourne.
* Lecturer, University of New South Wales
I wish to thank Marc Williams and Elizabeth Thurbon for comments and to acknowledge that the impetus for this research developed from reading Chesterman J. (2001).
[1] For example, in Davis v Commonwealth (1988)166 CLR 79, legislation passed by the federal government to grant the Australian Bicentennial Authority exclusive commercial use of some common expressions was regarded as an “extraordinary intrusion into freedom of expression” (at 100) and overridden.
[2]Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1; Australian Capital Television v
Commonwealth [1992] HCA 45; (1992) 177 CLR 106.
[3] Kirby, M., “Freedom of Expression: Some Recent Developments”, (1993) 19 (4)
Commonwealth Law Bulletin, October, at 1178–1781.
[4] Some did not criticize the judgements, but instead commented on the form of the freedom
(Glass 1995), compared the decisions with US jurisprudence (Barendt 1994), or sought to divine other requirements which might be implicated by the decisions (Kirk 1995).
[5] Aroney, N., “A Seductive Plausibility: Freedom of Speech in the Constitution”, (1995)
[18] University of Queensland Law Journal, 249–274; Aroney, Nicholas Freedom of Speech in the
Constitution, Centre for Independent Studies, Sydney, 1998.
[6] Douglas 1993; Campbell 1994; Fraser 1994. It is not the purpose of this paper to enter into the specific debate about whether these, and other, cases represent an over-stepping of judicial powers.
[7] McDonald, L., “The Denizens of Democracy: The High Court and the ‘Free Speech’ Cases”, (1994) Public Law Review 5 (3), September, 160–198.
[8] Kirby, M., “Freedom of Expression: Some Recent Developments”, (1993) 19 (4)
Commonwealth Law Bulletin, October, 1178–1781.
[9] Section 299 (1)(d)(ii) of the Industrial Relations Act 1988 (Commonwealth). See n. 2.
[10] Part IIID of the Broadcasting Act 1942 (Cth). The legislation also mandated the provision of free time to candidates by broadcasters during election campaigns. (Kirk 1995: 38) This free time favoured political parties which already held parliamentary seats. Non-candidates were excluded. See n. 2.
[11] Kirk, J., “Constitutional Implications from Representative Democracy”, (1993) 23 (1)
Federal Law Review, 37–76, at 38.
[12] Ratified by Australia in 1980.
[13] Such as Commonwealth of Australia v John Fairfax and Sons Ltd [1980] HCA 44; (1980) 147 CLR 39, at 52.
[14] Barendt, E., “Free Speech in Australia: A Comparative Perspective”, (1994) 16 (2) Sydney
Law Review, June, 149.
[15] Kirk, op. cit., at 39.
[16]Ibid., at 40. This was not the first time the High Court had made this particular fi nding. See for example Attorney-General (Cth); Ex rel McKinlay v Cth [1975] HCA 53; (1975) 135 CLR 1.
[17] McDonald, op. cit., at 176–177.
[18] Kirby, op. cit., 40.
[19] Williams, G., Human Rights under the Australian Constitution, Oxford University Press, Melbourne, 2002, 168.
[20] Skinner, Quentin, 1984, “The Idea of Negative Liberty: Philosophical and Historical Perspectives”, in Rorty, Schneewind and Skinner (eds), Philosophy in History: Essays on the Historiography of Philosophy, Cambridge University Press, Cambridge, 194.
[21]Ibid., 194–195
[22] Gelber, K., Speaking Back: The Free Speech versus Hate Speech Debate, John Benjamins, Amsterdam, 2002, 36.
[23] Williams, op. cit., 168.
[24] Sunstein notes that it is extremely difficult to differentiate “political” and “non-political” speech (1995: 5–6). I will not enter into this debate specifically here, because it is beyond the scope of this paper. However, the distinction is useful in the application of this argument, where I later outline the use of the term by local governments in restricting certain activities in public places.
[25] Stone, A., “Lange, Levy and the Direction of the Freedom of Political Communication under the Australian Constitution”, (1998) 21 (1) University of New South Wales Law Journal,
[117]–134, 117.
[26]Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104. The case concerned a defamation action by federal MHR Dr Andrew Theophanous against a newspaper which published a letter to the editor accusing him of “bias” and “idiotic antics”. (Williams
[2002]: 173) The court found that the common law of defamation was affected by the constitutional freedom of political communication, and prevented public figures using the defence of qualified privilege. (Stone 1998a: 225–226).
[27] Williams, op. cit., 173; Stone, op. cit., 118.
[28]New York Times Co v Sullivan [1964] USSC 40; 376 US 254 (1964).
[29] “Actual malice” requires both knowledge of the falsity of a statement and a reckless disregard for truth—Stone, op. cit., 118.
[30] Williams and Stone argue that Theophanous did not go as far as Sullivan in eliminating defences to defamation against public figures, in part because it allowed for publication if to do so was “reasonable”. Williams, op. cit., 175; Stone, op. cit., 117–134. See also Patapan, H. Judging Democracy, Cambridge University Press, Melbourne, (2000) 53.
[31] Williams, op. cit., 174
[32]Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211. The case concerned a claim against a newspaper which had published articles alleging rorting by a politician. In this case, the WA Constitution was also held to contain the same inherent need for freedom of political communication as the Commonwealth’s (Williams 2002: 180).
[33] Williams, op. cit., 179.
[34] In Cunliffe v Commonwealth [1994] HCA 44; (1994) 182 CLR 272, discussions about immigration assistance were also considered to constitute “political” communication. (Williams 2002:
[182]).
[35] e.g. Williams, op. cit., 188.
[36] Patapan, H., Judging Democracy, Cambridge University Press, Melbourne, 2000, 61.
[37]Muldowney v South Australia (1996) 186 CLR 352.
[38]Langer v Commonwealth [1996] HCA 43; (1996) 186 CLR 302.
[39] For a detailed examination of electoral laws in light of the freedom of political communication, see Williams (1998).
[40]McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140. The case dealt with electoral boundaries in WA which, it was argued, infringed on a guarantee of voter equality. The case was lost.
[41] Williams, op. cit., 184–185.
[42]Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520. The case was a defamation action brought by David Lange, former Prime Minister of New Zealand, against the ABC for comments made on a 4 Corners programme (Williams 2002: 187).
[43] Stone, op. cit., 121, citing Lange at 103.
[44] See also Patapan, op. cit., 187
[45] Williams, op. cit., 187; Patapan, op. cit., 57.
[46] Williams, op. cit., 190; Patapan, op. cit., 57.
[47] Patapan, op. cit., 61.
[48] Stone, A., “Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political
Communication”, (2001) 25 (2) Melbourne University Law Review, August, 374, 382–383.
[49] Stone, 1998, op. cit., 122.
[50] Stone, 2001, op. cit., 374–381.
[51]Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 567–568.
[52]Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579. The case concerned a protestor who entered a duck shooting area without a licence. His communicative action was regarded as “political communication” by the Court, but the regulations prohibiting entrance to the area
without a licence were upheld as appropriate and adapted to legitimate concerns for safety
(Williams 2002: 192).
[53] Stone, 1998, op. cit., 131–132, citing Gaudron J. in Levy at 271.
[54] For example, the Corporation of the City of Adelaide, under By-Law No. 2—Streets and Public Places, prohibits selling or distributing any material, or conveying any message to any bystander or passer-by (ss 1, 3, 10) in the Rundle Street Mall and other streets without
a permit [my emphasis]. Darwin City Council By-Laws (Part 4—Public Places, Division
[7]—Malls and Other Public Places) prohibit a person from addressing an assembly of people
without a permit (s 109). Townsville City Council and Hobart City Council by-laws are discussed below.
[55] In this paper I will define pedestrian malls as ex-roads/thoroughfares which have been transformed into open air malls, with seating and no traffic. In US literature, “pedestrian malls” also refers to shopping malls, i.e. enclosed purpose-built buildings with controlled heating, light and sound (e.g. Sandercock 1997, who differentiates between “indoor” and
“outdoor” malls).
[56] Mattson argues that in the US, citizens have challenged the idea that shopping malls are private commercial space and “decided to treat it as public space”: Mattson, K., “Reclaiming and Remaking Public Space: Toward an Architecture for American Democracy”, (1999) 88
(2) National Civic Review, 133–144.
[57]Ibid., 133.
[58] Under Local Law No. 39: Pedestrian Malls. The mall was created in 1979.
[59]Coleman v Sellars [2000] QCA 465; (2001) 181 ALR 120, at 121 and 124.
[60]Coleman v Sellars & Anor B14/2001 (26 June 2002) High Court of Australia Transcript. It was argued unsuccessfully by Mr Horler in support of the application that the requirement for a “booth” might only necessitate a milk crate and an umbrella, and that
this requirement was therefore an arbitrary distinction which did not rescue the by-law from constituting a breach of the implied freedom.
[61]Coleman v Sellars [2000] QCA 465; (2001) 181 ALR 120, at 122.
[62]Ibid., at 127.
[63]Ibid., at 122.
[64] This reasoning drew from United States First Amendment jurisprudence which distinguishes between content-based and content-neutral regulations, and grants the latter more latitude than the former (Coleman v Sellars at 123).
[65]Ibid., at 125.
[66]Levy at 289.
[67] Stone, 1998, op. cit., 132–133.
[68]Coleman v Sellars at 128.
[69]Smith v Collin [1978] USSC 187; 439 US 916 (1978).
[70]Watchtower Bible & Tract Society of New York, Inc, et al v Village of Stratton et al, Supreme
Court of the United States, No. 00-1737, argued February 26, 2002, decided June 17,
[2002]; at http://supct.law.cornell.edu/supct.html/00-1737.ZS.html. It was argued that had the permit only been required for a narrower range of activity, for example commercial activity, it may have been upheld [my emphasis].
[71] Under the Highways By-Law No. 3 of 1997.
[72]Ibid., ss 37(b), 38, 41 and 42.
[73] Ibid, section 44.
[75] Minutes of the meeting of Open Council, 26 November 2001. Item No. 22. Available at http://www.hobartcity.com.au/agenda/council/agenda/261101councilag.pdf.
[76] As expressed in an unpublished letter to the applicant for a permit, Mr A. Bainbridge, dated 5 December 2001.
[77] Personal conversation with A. Bainbridge by telephone, 6 July 2002.
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