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Jones, Melinda --- "Free Speech Revisited: The Implications of Lange & Levy" [1997] AUJlHRights 24; (1997) 4(1) Australian Journal of Human Rights 188

[1] Senior Lecturer, Faculty of Law, University of NSW. The invaluable assistance of Joachim Delaney in the preparation of this paper is gratefully acknowledged. The research reported here was undertaken with the support of the 1997 Australian Research Council Small Grants Scheme.

[2] Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 and Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106.

[3]Meiklejohn, A.

[4] See for example David Tucker, "Representation-Reinforcing Review: Arguments about political advertising in Australia and the United States" (1994) 16 Sydney Law Review 247.

[5] See for example Jones M "Empowering victims of racial hatred by Outlawing Spirit murder" (1994) 1 Australian Journal of Human Rights 229; Akmeenmana S & Jones M "Fighting racial hatred" in Race Relations Commissioner (ed) The Racial Discrimination Act: A Review (AGPS Canberra 1996).

[6] Jones ibid.

[7] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 145 ALR 96 and Levy v State of Victoria [1997] HCA 31; (1997) 146 ALR 248.

[8] See generally Gaze E & Jones M Law Liberty & Australian Democracy (Law Book Co 1990).

[9] Australian Communist Party v Commonwealth [1951] HCA 5; (1950-1951) 83 CLR 1.

[10] (1925) 37 CLR 32.

11 R v Carter; ex parte Kisch [1934] HCA 50; (1934) 52 CLR 221.

[12] The King v Wilson; ex parte Kisch (1934) 53 CLR 234.

[13] This, too, gave rise to another episode involving interference with freedom of speech. One media commentator, of Scottish Gaelic descent, was outraged at the High Court's decision and said so in no uncertain terms. The result was the laying of the charge of scandalising the court. See R v Dunbabin [1935] HCA 34; (1935) 53 CLR 434. See also R v Fletcher; Ex parte Kisch [1935] HCA 1; (1935) 52 CLR 248.

[14] Salemi v MacKellar (No. 2) (1977) 137 CLR 396. Nearly 10 years later the same section of the Migration Act was interpreted to require a hearing: see Kioa v West [1985] HCA 81; (1985) 159 CLR 550 .

[15] Salemi v MacKellar (No. 2) supra. Nearly ten years later the same section of the Migration Act was interpreted to require a hearing: see Kioa v West supra.

[16] The offence of seditious libel has had an inglorious history in English common law. It has been used ruthlessly by UK authorities in every period of political turmoil (notably 1680-1710, 1792-1845 and 1914-1919) since the time of the Court of the Star Chamber, when it was applied in a desperate attempt to save the absolute monarchy: See Head M (1979) "Sedition -- is the Star Chamber dead?" 3 Criminal Law Journal 89.

[17] R v Burns (1886) 16 Cox CC 355.

[18] Burns v Ransley [1949] HCA 45; (1949) 79 CLR 101.

[19] R v Sharkey [1949] HCA 46; (1949) 79 CLR 121 .

[20] Ibid.

[21] [1992] HCA 46; (1992) 177 CLR 1.

[22] [1992] HCA 45; (1992) 177 CLR 106.

[23] Nationwide News, supra above fn 98, at 48-49.

[24] Mason CJ ACTV at 597-98. Justice McHugh expressed a similar view.

[25] Ibid, at 597.

[26] Ibid, at 598.

[27] Ibid, see also the judgment of McHugh, J at 669-70.

[28] Australian Capital Television, supra,, per Mason CJ at 598; per Brennan J at 603; and per McHugh J at 670.

[29] Australian Capital Television Pty Ltd v The Commonwealth (No. 2) [1992] HCA 45; (1992) 108 ALR 577, at 656.

[30] Some of the members of the Bench adopted a narrow conception of the implied guarantee. Dawson J stated that the Constitution simply guarantees a minimal requirement of representative government which does not extend to freedom of speech or freedom of communication: in Theophanous v The Herald & Weekly Times Ltd [1994] HCA 46; (1995) 182 CLR 104, at 191; McHugh J adopted a similar position, arguing that representative government is not part of the Constitution independent of the text, and it is wrong to invalidate laws on the basis of a constitutional immunity: Theophanous, at 195. Brennan J accepted the constitutional implication, but insisteds that as it is not a personal right its scope is limited: Theophanous, at 149. The retirement from the bench of Mason CJ and Deane J, and the appointment of Gummow J and Kirby J to the High Court, and the nature of the appointment to fill the vacancy on the court may be of significance here.

[31] Australian Capital Television (1992) supra.

[32] In Theophanous v The Herald & Weekly Times Ltd supra, a federal Member of Parliament sued for defamation in relation to comments concerning his actions as a Member of Parliament. The majority of the court, Mason CJ, Toohey and Gaudron JJ, and Deane J, held that the implied constitutional implication of freedom of communication prevented defamation laws from applying to Commonwealth politicians. Brennan J, Dawson J and McHugh J, in dissent, argued that the constitutional implication did not provide personal rights and could not invalidate common law.

[33] In Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1995) 182 CLR 211, an action for defamation had been brought by members of the Western Australian Legislative Assembly. A series of statements about their suitability for office were made in the context of a State election. The majority of the High Court (Mason CJ, Toohey, Gaudron and Deane JJ), held that the constitutional guarantee applied to State political activity in addition to Commonwealth political speech. This was found both as a matter of logic and as a matter of

construction of the Commonwealth and Western Australian Constitutions. Brennan, Dawson and McHugh JJ argued were in dissent, arguing that the doctrine could not be extended to catch this type of speech.

[34] In Cunliffe v The Commonwealth of Australia[1994] HCA 44; , (1995) 182 CLR 272, Toohey J joined Brennan, Dawson, and McHugh JJ in rejecting the extension of the implied constitutional guarantee of freedom of political communication. The case involved a challenge to Part 2A Migration Act 1958 (Cth) which introduced the registration of migration agents and limited the right of a nonregistered persons to give advice to would-be migrants. Members of the legal profession argued that this interfered with their freedom of speech, their freedom to communicate words of advice to clients. While the majority did not find the Constitutional guarantee to be breached, Mason CJ, Deane and Gaudron JJ, in dissent, concluded that the legislation was invalid.

[35] Theophanous supra per Mason CJ, Toohey and Gaudron JJ at 126 and per Brennan J at 146-147; Cunliffe supra per Mason CJ at 299, ; Cunliffe per Dawson J at 363; Cunliffe and per Toohey J at 379.; Theophanous per Brennan J at 146-147.

[36] Cunliffe supra per Gaudron J at 388. Deane J at 339-340 characterises this as a law which is "necessary" in the sense of their addressing an existing and pressing social need. Cunliffe at 339-340.

[37] Cunliffe supra per Deane J at 339.

[38] See Theophanus supra per Mason CJ, Toohey and Gaudron JJ in Theophanus at 122-3; Cunliffe supra per Mason CJ in Cunliffe at 229-300 ;and per Gaudron J in Cunliffe at 388-9: It will not be justified "unless it can clearly be seen to be serving some overriding and important public interest". Cunliffe per Gaudron J at 388.

[39] Cunliffe supra per Deane J at 339.

[40] Cunliffe supra per Mason CJ at 300.

[41] Cunliffe supra per Toohey J at 384.

[42] Nationwide News supra per Deane and Toohey JJ at 76.

[43] Theophanous supra at 149.

[44] Cunliffe supra per Gaudron J at 388.

[45] [1997] HCA 25; (1997) 145 ALR 96.

[46] [1997] HCA 31; (1997) 146 ALR 248

[47] Ibid at 96.

[48] Ibid at 107-8.

[49] Ibid at 112.

[50] Ibid at 111.

[51] [1997] HCA 31; (1997) 146 ALR 248.

[52] Ibid at 248.

[53] Ibid per Brennan CJ at 251, per Toohey and Gummow JJ at 267, per McHugh J at 274 and per Kirby J at 286.

[54] Ibid at 271.

[55] Ibid at 292.

[56] Ibid at 271.

[57] See fn 24 supra.

[58] More often than not the free speech cases have protected attacks on the industrial system or on politicians. The only exception to this could be ACTV, but there again Labor Party moves to promote fairness in the electoral process were not popular with any group which would be advantaged by unfairness. This is not to say that we support the legislation which was struck down, but rather that the attempted legislation was a little too radical, and was seen as an attack on established means of electioneering.

[59] Communists and animal liberationists have suffered in this regard.