Implied Rights - Constitutional Law

IMPLIED RIGHTS REVIEW NOTES

• An implied freedom of political communication was recognised in the 1992 HC cases of Nationwide News and ACTV.

• Judges differed on the source of the freedom:

  • ‘Broad view’ = freedom sourced from underlying principles of Constn (ie representative democracy and/or representative Govt) (eg Brennan, Deane and Toohey JJ in Nationwide News; Mason CJ and Gaudron J in ACTV; and Deane J in Theophanous); or

  • ‘Narrow view’ = freedom sourced from text and structure of Constn (ie ss 7, 24, 64 and 128 Constn) (eg McHugh and Dawson JJ in ACTV; and McHugh J in Theophanous).

• Narrow view was unanimously accepted in Lange.

The court said rep and resp Govt is effected only to the extent required by ss 7, 24, 64 and 128. ss 7 and 24 require representatives to be directly chosen by the people; s 64 provides that Ministers are members of Pmt; and s 128 is the referendum provision. These 4 provisions indicate that the Const intended to provided for rep and resp Govt, and “freedom of communication on matters of Govt and politics is an indispensable incident of that system.”

• Is it a:

1. Personal freedom/ individual right? or

2. Limitation on Govtl power?

• Scope of i. is far broader than ii. (Brennan J in Theophanous);

• HC in Lange unanimously held that the IFPC does not confer personal rights on indvs – it is a limit on Govtl (Pmt/Exe) power. As explained in Mulholland, it is not a freedom to communicate; it is an immunity – a freedom from laws that prevent us from exercising our pre-existing right and privilege to communicate with each other about political and Govtl matters;

SAY: “This freedom operates as a restriction on Cth/State power, not as a personal right on indvs (Lange).”

• In Mulholland, there was no burden, because the DLP had no pre-existing right or privilege to have their party listed on the ballot form. It was the amendment itself that gave them that right, and Pmt was free to

attach statutory conditions to it. Impugned law must burden a right that exists independently of that law (“freedom from”, not “freedom to”).

• In Lange the immunity conception led to the extension of the CL of defamation, and not a separate Constitutional defence. The enhanced defence is actually part of the CL of defamation, and not sourced in the Constn. But the IFPC would operate so as to prevent statutory diminution of those CL defences.

2 stage test from Lange:

2 limbs:

1. First consideration: Is the SM about “Govt or political matters”?

   • Comments:

     • Test: Political communication is the ability of people to communicate with each other wrt matters that could affect choice in federal elections, referenda, or throw light on the performance of Ministers and conduct of the Exe branch of Govt (Lange);

     • This narrowed the test from Theophanous, where political discussion included:

       • Discussion of the conduct, policies, or fitness for office of Govt, political parties, public bodies, public officers and those seeking public office (includes Exe arm of Govt, such as Ministers, public servants, statutory authorities, public utilities and conduct of State police officers; Coleman);

       • Discussion of the political views and public conduct of persons who are engaged in activities that have become the subject of political debate (eg trade unions, Aboriginal leaders, political and economic commentators); and

       • All speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about.

Not exhaustive.

• Generally, IFPC will not protect commercial or other private speech – but each case depends upon its circumstances (MTG in Theophanous).

• Examples:

Is it about “Govt or political matters?”

• Immigration advice (4:3, Cunliffe);

• Identification of the party affiliation of a candidate on official voting ballot (3:1, Mulholland – Heydon J disagreed, saying the purpose was to facilitate vote casting and not political communication);

• Conduct of State police officers (Coleman per McHugh J– why? Because State police

help to administer and enforce Fed criminal law; “Allegations that members of Qld

police force are corrupt may reflect on Fed Ministers as well as responsible State Ministers).

• Comments:

  • All tiers of Govt in Aus subject to IFPC (eg Territories, States and local Govt), even if a particular matter appears to have a very local, territorial-based or state-based genesis. This is due to the indivisibility of public affairs and political discussions in Aus (Mason CJ and Gaudron J in ACTV; and maj in Theophanous);

  • Possibly narrowed in principle in Lange (the court said “the discussion of matters at State, Territory or Local Govt level might bear on the choice that the people have to make in fed elections…”), but broad content in application;

  • So, probably all tiers still subject to IFPC.

• Examples:

• Former NZ Prime Minister (Lange – “By reasons of matters of geography, history and trading arrangements, the discussion concerning NZ may often affect or throw light on Fed govt matters in Aus”);

• State police officers (Coleman).

• Comments:

  • Freedom extends to all forms and methods of communication (McHugh J in ACTV);

  • Includes non-verbal conduct – don’t forget, writing and talking are both verbal (Levy – per Kirby J, “lifting a flag in battle, raising a hand agst advancing tanks, wearing symbols of dissent, participating in a silent vigil, public prayer and meditation, turning away from a speaker, or event boycotting a big public event clearly constitutes pol communication although not a single word is uttered”); and

  • Includes insults (per...