Legal Practice Briefing
14 April 1993
FREE SPEECH AND THE CONSTITUTION
The decisions of the High Court in Australian Capital Television Pty Ltd v Commonwealth (1) (the Political Broadcasts case) andNationwide News Pty Ltd v Wills (2) (the Nationwide News case) mark a significant new development in Australian constitutional law, in particular because of the High Court's recognition of the freedom of communication in relation to political matters.
The Political Broadcasts Case
Part IIID of the Broadcasting Act 1942, inserted by the Political Broadcasts and Political Disclosures Act 1991, banned the broadcasting on electronic media of political advertisements, on behalf of interest groups and members of the public as well as political parties and candidates for election, during election campaigns for all levels of government. It also introduced a regime whereby broadcasters were required to put to air broadcasts on behalf of parties and candidates free of charge: a quota of this 'free time' was to be apportioned between parties and candidates according to criteria set out in the Act, which allocated 90 per cent of the quota to incumbents.
Four Justices (Mason CJ, Deane, Toohey and GaudronJJ) held the whole of PartIIID to be invalid; one (McHugh J) held it to be invalid except in its application to the Territories; one (BrennanJ) held the provisions relating to State elections invalid; and one (DawsonJ) held the whole of PartIIID valid.
Six Justices held that there was a freedom of communication in relation to political matters inherent in the Constitution. The Constitution is predicated on representative government and freedom of communication is essential to that system.
All of the Justices who recognised an implied freedom also recognised that the freedom was not absolute and could be restricted to the extent that other legitimate public interests required. They did not hold that no control of the use of the media for political advertising could be valid. However, five found that PartIIID went beyond a justifiable restriction of the freedom. Some of the factors considered significant were as follows:
- PartIIID denied access to the most important media for election campaigning;
- it allocated 'free time' in a manner that was weighted heavily in favour of incumbents;
- the operation of the regime depended on the making of regulations at the discretion of the Executive;
- persons other than candidates and political parties were completely excluded from use of the electronic media;
- the periods during which the ban could operate ('election periods' for Commonwealth, State and local government elections) were very frequent; and
- the exception of news and current affairs programs added to the power of those programs and did not provide any right of reply to what was said on those programs
Brennan J held that it was open to the Parliament to make a low assessment of the contribution of electronic advertising to the formation of political judgements and to conclude that representative government could survive and flourish without it. The restrictions of Part IIID in relation to Commonwealth elections were therefore proportionate to the objects it sought to obtain.
The Nationwide News Case
Section 299(1)(d)(ii) of the Industrial Relations Act 1988 made it an offence, by writing or speech, to use words 'calculated to bring a member of the Commission or the Commission into disrepute'. The High Court held unanimously that this section was wholly invalid, finding that it effectively prohibited reasonable, justifiable criticism of the Commission and therefore went further than was warranted by the public interest.
However, the Court accepted that there was a public interest in protecting bodies such as the Commission from 'unfounded and illegitimate attack' and that therefore some form of protection could be validly enacted.
Brennan, Deane, Toohey and Gaudron JJ based their decision on the same implied freedom invoked in the Political Broadcasts case. They decided that it was an essential attribute of representative government that representatives be accountable to the people and people be in a position to make informed choices about their representation, communicate their concerns to their representatives and openly discuss matters relating to the government of the Commonwealth and public institutions. Freedom of communication in relation to these matters was therefore seen as essential to the principles on which the Constitution was based.
Mason CJ, Dawson and McHugh JJ based their decision on traditional characterisation of the law. They held that, not being a law directly concerned with conciliation and arbitration, section 299 did not fall within the 'central area' of the industrial relations power (section 51(xxxv)) and it was therefore necessary to consider whether it fell within the 'incidental area' of the power. MasonCJ considered the central question to be whether section299(1)(d)(ii) was 'proportionate' to the achievement of an end within the power, and the law's transgression of freedom of speech was an important factor in his assessment. McHughJ's approach was similar. DawsonJ preferred to regard the question as one of nexus with the subject-matter of the power rather than proportionality or appropriateness.
The Implied Freedom of Communication
The majority in the Political Broadcasts case has taken an important step in basing the implied freedom on the structure of the Constitution as a whole rather than any specific provisions. This method of reasoning may have implications for the scope of the freedom and the Court's preparedness to find other implied rights and freedoms in the Constitution.
Source of the Freedom
The implication is drawn from the Constitution itself and the structure of the institutions it establishes rather than from the nature of the society in which it operates (BrennanJ expressly disapproved of the latter method). This means that the capacity to imply freedoms is not unrestricted.
Deane, Toohey and GaudronJJ identified three sources of implications in the structure of the Constitution: the federal system, the separation of powers, particularly judicial power, and representative government.
BrennanJ expressly denied that the Court could invalidate a law simply because it infringes human rights; some basis needs to be found in the words or the structure of the Constitution.
MasonCJ said that an implication could be drawn from the overall structure of the Constitution, rather than the terms of a particular provision, only if it was necessary to preserve the integrity of that structure.
Nevertheless, the decision clearly opens up substantial possibilities for the implication of other rights. 'Representative government' may well require freedom of movement and association as well as of communication, as GaudronJ acknowledges; and it is not inconceivable that that term could come to stand for a free and democratic society in general, leading to the implication of further rights.
Scope of the Freedom
The scope of the freedom is determined by what is necessary for 'representative government'. The decisions establish that the right extends to 'political matters', 'public affairs' or 'political and economic matters'. The test seems to be whether matters are relevant to the government of the Commonwealth. The freedom applies at all times, not only during election campaigns. It is also established that the right is not confined to matters of political debate at the Federal level. The democratic character of the States is also important to the constitutional structure; and the interaction of the various levels of government makes the identification of purely Federal matters impossible.
The definition of 'political matters' leaves much to be determined. Although the test of relevance to representative government provides some guidance, there is clearly potential for a great deal of argument about the matters to which the freedom extends. For example, if sexual mores or multiculturalism are debated in the political arena, does the implied freedom apply to defamatory statements about a person's private affairs or racially based aspersions on ethnic groups? While these examples may be able to be dealt with through the 'balancing of interests' discussed below, they illustrate the potential for further issues to arise.
Effect on the States
If the freedom of communication inherent in the Constitution can be infringed by control of the electronic media, it can presumably also be infringed by State legislation controlling the print media. Although it was not necessary to decide the issue, Brennan, Deane and TooheyJJ indicated that they thought there were strong arguments for the view that the freedom also limited the law-making powers of the States.
Balancing of Interests
A further area of uncertainty in the majority's definition of the implied freedom stems from the concession that the freedom is not absolute and that some laws which restrict it will nevertheless be valid if they are necessary or 'proportional' to the achievement of legitimate public interests. Such a concession is necessary for practical reasons and is consistent with most human rights thinking. However, the Court has allocated to itself the difficult task of balancing the guarantee of free communication against other public interests which may lie behind laws restricting that freedom. In many cases the balancing of interests will not be difficult (for example, where a law protects public figures or institutions against scurrilous and unfounded attacks on their reputations). However, it is likely that cases will arise in which the Court's task will be both delicate and politically controversial.
Both cases involved communication across State boundaries and therefore afforded opportunities for the High Court to clarify the freedom of interstate 'intercourse' in section 92 of the Constitution. Only Brennan, Deane and TooheyJJ in Nationwide News and DawsonJ in Political Broadcasts took this opportunity; other Justices did not need to address the issue because of the views they had taken on other issues. Broadly, their Honours decided that the freedom of interstate 'intercourse' in section 92 does not invalidate a law merely because it burdens that intercourse; it is directed at laws that impose a burden on that intercourse either because of its interstate character or in a manner that exceeds what is reasonable to achieve some other purpose.
It is implicit in the reasoning of the majority in Political Broadcasts that the presence of the express freedom in section 92 does not preclude the implication of a potentially overlapping freedom.
Acquisition of Property
Although only three Justices in the Political Broadcasts case considered the issue of acquisition of property under section 51(xxxi) of the Constitution, it may be significant that those Justices decided not to extend the concept of an 'acquisition of property' into the area of interference with the exercise of rights connected with property. (The remarks of DeaneJ in the Tasmanian Dam case gave some encouragement for such an extension.) Had the Court decided that the terms of a statutory licence could not be altered without effecting an 'acquisition of property', the consequences for Commonwealth legislative action would have been far-reaching.
ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)
The material in this briefing is provided for general information only and should not be relied upon for the purpose of a particular matter. Please contact the Legal Practice before any action or decision is taken on the basis of any of the material in this briefing.