Contents: expression 1
FREEDOM OF SPEECH IN AUSTRALIA
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FREEDOM OF SPEECH IN AUSTRALIAOverview2 The Australian Constitution does not expressly protect freedom of speech or expression. In 1992, however, the High Court of Australia held that a right to freedom of expression, in so far as public and political discussion were concerned, was implied in the Constitution. This right was thought to be an essential requirement of democratic and representative government and thus implied into the Australian Constitution, which had established such a system of government. Subsequent cases have made determinations on the scope of this implied freedom. It has been found to extend to the publication of material:
The right does not extend to more generally to a right to freedom of expression where political issues are not involved. 3 Nationwide News Pty. Limited v. Wills (1992) 177 CLR 1: attack on the integrity and independence of the Australian Industrial Relations CommissionFacts: The plaintiff (Nationwide News) was the holding company of the proprietor of The Australian (a nationwide Australian newspaper). In 1989 an article was published in that paper which contained an attack on the integrity and independence of the Australian Industrial Relations Commission and its members. The plaintiff was prosecuted under s299(1)(d)(ii) of the Industrial Relations Act 1988 (Cth) which reads ‘A person shall not ... by wiring or speech use words calculated ... to bring a member of the Commission or the Commission into disrepute.’ The defendant challenged the constitutional validity of s299(1)(d)(ii). Held: The court held unanimously that the challenged provision was invalid, however, the way in which that conclusion was reached in the different judgments differs widely. Mason CJ, Dawson and McHugh JJ held that the provision was invalid on the ground that the protection it afforded the Commission was so disproportionate that it stood outside the incidental scope of the power in s51(xxxv) of the Constitution (the constitutional power to make laws with respect to conciliation and arbitration for the prevention of industrial disputes). Brennan, Deane, Toohey and Gaudron JJ held that the law may have been within the scope of s51(xxxv) but, in any event, the law infringed the Constitution’s implied right to freedom of communication about matters relating to the government of the Commonwealth. Australian Capital Television Pty. Limited and Others v. The Commonwealth (1992) 177 CLR 106: implication of freedom of communication contained in the Constitution extends to all political mattersFacts: The plaintiffs sought declarations that Part IIID of the Broadcasting Act 1942 (Cth) was invalid. Part IIID contained a series of provisions prohibiting the radio and television broadcasting of political material (political advertisements broadcasts) and other provisions compelling broadcasters to provide free election broadcasting time during an election period. It was conceded by the plaintiffs that these provisions came within one or more heads of Commonwealth power. Thus, the critical question was whether there was an implied guarantee of freedom of expression in the Constitution, at least in relation to public and political discussion and, if so, whether Part IIID contravened that guarantee. Held per Mason CJ, Deane, Toohey and Gaudron JJ: that Part IIID was wholly invalid on the ground that it infringed the right to freedom of communication on matters relevant to political discussion that was implied in the system of representative government for which the Constitution provided. Per Mason CJ, the implied freedom of communication extends to all matters of public affairs and political discussion, not withstanding that a particular matter at a given time might appear to have a primary or immediate connection with the affairs of a State, a local authority or a Territory and little or no connection with Commonwealth affairs. Per Deane, Toohey and Gaudron JJ, the implication of freedom of communication contained in the Constitution extends to all political matters, including matters relating to other levels of government, within the national system which exists under the Constitution. Theophanous v. The Herald Weekly Times Limited and Another (1994) 182 CLR 104 (see above) Facts: The plaintiff was a member of the House of Representatives in Australia and had played a prominent part in public discussion of migration issues. The first defendant (The Herald Weekly Times) published a letter to the editor written by the second defendant which criticised the plaintiff’s views and conduct in relation to these issues. The plaintiff brought an action for defamation against the two defendants. One aspect of the first defendant’s defense was that the words were published pursuant to the implied freedom of communication guaranteed by the Commonwealth Constitution. The plaintiff filed a summons in the High Court to strike out this part of the first defendant’s defense. Held (per Mason CJ, Deane, Toohey and Gaudron JJ): That there is implied in the Commonwealth Constitution a freedom to publish material: (a) discussing government and political matters; (b) of and concerning members of the Parliament of the Commonwealth of Australia which relates to the performance by such members of their duties as members of the Parliament or parliamentary committees; and (c) in relation to their suitability of persons for office as members of the Parliament. In light of the freedom implied in the Commonwealth Constitution, the publication will not be actionable under the law relating to defamation if the defendant establishes that: (a) it was unaware of the falsity of the material published; (b) it did not publish the material recklessly, that is, not caring whether the material was true or false; and (c) the publication was reasonable in the circumstances. A publication that attracts the freedom implied in the Commonwealth Constitution can be described as a publication on an occasion of qualified privilege. Whether a federal election is about to be called is not a relevant consideration in determining this issue. Stephens and Others v. West Australian Newspapers Limited (1994) 182 CLR 211: freedom of communication about political matters implied in the Commonwealth Constitution extends to the public discussion of the performance, conduct and fitness for office of membersFacts: Six members of the Western Australian Legislative Council sued the publisher of a newspaper for damages for defamation. In defense the newspaper argued that the articles related to matters relevant to an elector in deciding how to vote in Western Australia Parliamentary elections and that the articles were published pursuant to the freedom guaranteed by the Commonwealth Constitution and the Constitution Act 1889 (WA) and were therefore not actionable. The defense also pleaded that the articles were published on occasions of qualified privilege. The substance of the first defense was repeated as particulars of the second defense. Held (per Mason CJ, Deane, Toohey and Gaudron JJ): That the first defense was bad in law on the ground that although the freedom of communication as to political matters implied in the Commonwealth Constitution would afford a defense if the defendant was unaware of the falsity of the material published, did not publish the material recklessly and if the publication was reasonable in the circumstances, the defense did not allege fulfilment of the first and second of those conditions. The second defense of qualified privilege was good in law. The freedom of communication about political matters implied in the Commonwealth Constitution extends to the public discussion of the performance, conduct and fitness for office of members of a State legislature. Furthermore, a freedom of communication about political matters was implied in the Western Australian Constitution and extended to criticism of the performance, conduct and fitness for office of a member of parliament. Cunliffe and Another v. The Commonwealth of Australia (1994) 182 CLR 272: Whether implied freedom was not limited to communications for the purposes of the political processesFacts: The plaintiffs sued the Commonwealth in the High Court for a declaration that Pt 2A of the Migration Act 1958 (Cth) was invalid. Part 2A established a registration system for persons who gave immigration assistance or who made immigration representations. A person who was not so registered was prohibited from giving immigration assistance unless he or she came within certain exceptions. The plaintiff argued, amongst other things, that the law was invalid because it contravened the implied constitutional guarantee of freedom of communication. The plaintiff argued that this implied freedom was not limited to communications for the purposes of the political processes in a representative democracy, but applied generally to all people of the Commonwealth in their communications with the Commonwealth Government. Held per Brennan, Dawson, Toohey and McHugh JJ: that Pt 2A was wholly valid as a law with respect to aliens within s51(xix) of the Commonwealth Constitution. The registration imposed by 2A upon the giving of immigration assistance to aliens or the making of immigration representations on their behalf did not interfere with any freedom of communication implied by the Constitution; per Brennan J on the ground that they did not infringe the freedom of political discussion that is necessary to maintain the system of representative democracy; per Dawson J on the ground that they were not incompatible with the requirements of the system of representative government with the Constitution ordains; per Toohey J on the ground that they did not constitute an undue restriction on the implied freedom of political communication; and per McHugh J on the ground that the Constitution contained no guarantee of freedom of expression to which they were obnoxious. Langer v. The Commonwealth of Australia 96/002 HIGH COURT: If the impairment of the freedom is reasonably capable of being regarded as appropriate and adapted to the achieving of a legitimate legislative purpose and the impairment is merely incidental to the achievement of that purpose, the law is within parliament’s powerFacts: Section 329A(1) of the Commonwealth Electoral Act 1918 (Cth) provides that a person must not print or publish anything which encourages persons voting at the election to fill in a ballot paper otherwise than in accordance with section 240 (which sets out how ballot papers should be marked). The plaintiff contended that he was constitutionally entitled to publish material encouraging persons to fill in their ballot papers otherwise than in accordance with s240 so that, if the encouragement is taken, their ballot papers would be informal. One of the arguments he put forward in support of his case was that s329A was invalid because it infringes the freedom of communication about political matters which the High Court has held to be implied in the Constitution. Held per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ: that section 329A of the Act was valid. Per Brennan CJ, the powers of the Parliament are impliedly limited so as to preserve that freedom of political discussion which is essential to the maintenance of the Commonwealth system of representative government. But the extent of the limitation depends on the particular circumstances, including especially the subject matter of the law which impairs the freedom. If the impairment of the freedom is reasonably capable of being regarded as appropriate and adapted to the achieving of a legitimate legislative purpose and the impairment is merely incidental to the achievement of that purpose, the law is within power. MulDowney v. The State of South Australia and Others 93/005: Restrictions imposed on freedom of speech are an incident of that protection. It is reasonably capable of being regarded by Parliament as appropriate and adapted to the achieving of a legitimate legislative purpose of protecting the prescribed primary method.Facts: The plaintiff, an enrolled elector for the South Australian electoral division of Mitchell under the Electoral Act 1985 (SA), sought declarations that section 76 and section 126 of the Electoral Act 1985 (SA) were invalid because they exceeded a limit on the legislative power of the Parliament of the State of South Australia to be implied from the Constitution of the Commonwealth of Australia. Section 76 of the Act dealt with the way in which ballot papers should be filled out. Section 126 provided that a person should not publicly advocate that a person fill out a ballot paper otherwise than in the manner prescribed in section 76 of the Act. Held per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ: neither section 76 nor section 126(1) of the Electoral Act 1985 (SA) is invalid. Per Brennan CJ, the freedom of political discussion implied in the Commonwealth Constitution is implied to protect the working of the system of government of the Commonwealth prescribed by the Constitution, but not to protect the working of the system of government prescribed by the Constitution of a State. Although the provisions of the Commonwealth Constitution prevail in the event of any inconsistency with the powers otherwise vested in the Parliament of a State, none of the provisions from which a freedom of political discussion is inferred affects the method of election of the members of a State Parliament. Nor does section 126 affect the government of the Commonwealth. The validity of section 126 is therefore unqualified by the implied freedom of political discussion to be found in the Commonwealth Constitution. In any event, the restriction of discussion imposed by s126 is not a restriction of the kind that, if imposed by a law of the Commonwealth, would be inconsistent with the freedom of political discussion implied in the Commonwealth Constitution. Section 126 (like s329A of the Commonwealth Electoral Act) is means of protecting the method which Parliament has prescribed for the election of members of Parliament. The restrictions imposed on freedom of speech by s126(1)(b) and (c) are an incident of that protection. It is reasonably capable of being regarded by Parliament as appropriate and adapted to the achieving of a legitimate legislative purpose of protecting the prescribed primary method of choosing members to sit in the respective Houses of Parliament of South Australia. As s126(1)(b) and (c) does not impose a restriction of a kind that would be invalid under the Commonwealth Constitution, it does not impose a restriction that is invalid under the Constitution of South Australia. Bibliography 4 Barendt, Free Speech in Australia: A Comparative Perspective, (1994) Sydney Law Review 149. Campbell and Sadurski, Freedom of Communication (1994). Coper, The High Court and Free Speech: Visions of Democracy or Delusions of Grandeur?, (1994) Sydney Law Review 185. Douglas, Freedom of Expression in the Australian Constitution, (1993) 16 University of New South Wales Law Journal 315. Doyle, The Industrial/Political Dichotomy: The Impact of the Freedom of Communication Cases on Industrial Law, (1995) 8 AJLL 1. Zines, A Judicially Created Bill of Rights?, (1994) 16 Sydney Law Review 166. Download 0.7 Mb. Share with your friends:
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