Meagher, Dan --- "The Protection of Political Communication under the Australian Constitution" [2005] UNSWLawJl 4; (2005) 28(1) UNSW Law Journal 30
[*] School of Law, Deakin University. My thanks are due to Professor George Williams and the anonymous referees for providing valuable comments and suggestions on the earlier drafts of this article and the Faculty of Law at the University of Cape Town for providing such friendly and beautiful surrounds in which to write it. Thanks also to those who participated in the New Researchers, New Research conference held at the University of Adelaide on September 30 – October 2, 2004 where an earlier version of this paper was presented.
[1] [1997] HCA 25; (1997) 189 CLR 520. For the remainder of the article referred to as the ‘implied freedom’.
[2] The following Australian jurisdictions have racial vilification laws: Racial Discrimination Act 1975 (Cth) pt IIA; Anti-Discrimination Act 1977 (NSW) ss 20(C), (D). See also Criminal Code 1913 (WA) ss 76– 80H; Racial Vilification Act 1996 (SA) ss 3, 6; Wrongs Act 1936 (SA) s 37; Discrimination Act 1991 (ACT) ss 65–7; Anti-Discrimination Act 1991 (Qld) ss 124A, 131A; Racial and Religious Tolerance Act 2001 (Vic) ss 7–14, 24–5; Anti-Discrimination Act 1998 (Tas) ss 17, 19, 55.
[3] The constitutionality of Australian racial vilification laws has, however, been examined in four lower court judicial and quasi-judicial decisions. For a detailed analysis of these cases, see below Part III(A). For relevant academic commentary on the issue see Michael Chesterman, Freedom of Speech in Australian Law: A Delicate Plant (2000) 237–43; Luke McNamara and Tamsin Solomon, ‘The Commonwealth Racial Hatred Act 1995: Achievement or Disappointment’ [1996] AdelLawRw 9; (1996) 18 Adelaide Law Review 259, 278–83; Saku Akmeemana and Melinda Jones, ‘Fighting Racial Hatred’ in Commonwealth of Australia, Race Discrimination Commissioner, The Racial Discrimination Act: A Review (1995) 156– 62. It is worth noting that in the last Parliament – ie, before the 9 October 2004 election – the Australian Labor Party introduced the Racial and Religious Hatred Bill 2003, a Private Members’ Bill that was originally moved by Robert McClelland MP. The Bill provided for the following criminal sanctions in serious cases of racial vilification: it would be a crime to threaten property damage or physical harm to another person or group because of their race, colour, religion or national or ethnic origin; and engaging in public acts that have the intention and likely effect of inciting racial or religious hatred against a person or group would also be a crime. The criminal provisions are nearly identical to those that formed part of the original Racial Hatred Bill 1994 (Cth) but were deleted during its passage through the Parliament. See further Luke McNamara, Regulating Racism: Racial Vilification Laws in Australia (2002) 40–2.
[4] [1997] HCA 25; (1997) 189 CLR 520, 567–8.
[5] Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579, 596–7 (Brennan CJ).
[6] Brennan J first endorsed this approach in Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106, 159 and then again in Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579, 598. This approach was endorsed by the Full Court of the Federal Court in Mulholland v Australian Electoral Commission [2003] FCAFC 91; (2003) 198 ALR 278, 289 (Black CJ, Weinberg and Selway JJ). More recently, McHugh J said ‘the reasonably appropriate and adapted test gives legislatures within the federation a margin of choice as to how a legitimate end may be achieved’: Coleman v Power [2004] HCA 39; (2004) 209 ALR 182, 209. On the other hand, Kirby J found the concepts of ‘margin of appreciation’ and ‘deference’ unhelpful in Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 209 ALR 582, 646. This appeared to reflect a view that such notions may ‘distract courts from their duty to uphold the law’.
[7] See Adrienne Stone, ‘Lange, Levy and the Direction of the Freedom of Political Communication Under the Australian Constitution’ [1998] UNSWLawJl 38; (1998) 21 University of New South Wales Law Journal 117, 131–4.
[8] Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579, 647 (Kirby J).
[9] Ibid 619 (Gaudron J).
[10] Wojciech Sadurski also advocates a strict scrutiny test for the review of racial vilification laws primarily ‘due to the proximity of [racist] speech to a public debate on political issues’: Wojciech Sadurski, ‘Offending with Impunity: Racial Vilification and Freedom of Speech’ [1992] SydLawRw 14; (1992) 14 Sydney Law Review 163, 193.
[11] [2004] HCA 39; (2004) 209 ALR 182, 266–7.
[12] [2004] HCA 41; (2004) 209 ALR 582, 595.
[13] But see below Part II(C)(2)(b) for an argument that rejects the nexus between strict scrutiny and an overbreadth-style analysis in relation to the implied freedom.
[14] Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1, 128 (Gaudron J). A similar approach is apparent in two judgments in Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579, 614–5 (Toohey and Gummow JJ), 619 (Gaudron J). But see Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579, 598 where Brennan CJ explicitly rejects the notion that ‘overbreadth’ has any place in Australian constitutional law. It is worth mentioning here that in the more recent case of Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 both Gaudron and Kirby JJ applied the Lange test to assess whether the common law defence of qualified privilege was compatible with the implied freedom without employing the two-tier approach which they advocated in the earlier post-Lange decisions noted above. It was unclear whether this represented a complete retreat from this approach by both judges or that they considered it inappropriate when measuring the common law (as opposed to statute law) against the constitutional freedom. See 26–30 (Gaudron, McHugh and Gummow JJ), 58–63 (Kirby J). But in my view a bifurcated review approach is unsustainable as both statute and common law have the capacity to regulate the content and/or mode of a political communication. It is, however, worth noting that in Mulholland, Kirby J appeared to abandon the two-tier approach in favour of an approach that echoes the theory of judicial review propounded by John Hart Ely in Democracy and Distrust (1980): [2004] HCA 41; (2004) 209 ALR 582, 647–8. On this point, see below text accompanying n 27–9.
[15] On strict scrutiny and overbreadth in relation to the regulation of speech in American constitutional jurisprudence see Lawrence Tribe, American Constitutional Law (2nd ed, 1988) 789–804 and 1058–61 respectively; see also Sadurski, above n 10, 178–9 for a discussion of strict scrutiny in the context of Australian racial vilification laws.
[16] [1938] USSC 104; 304 US 144, 152 fn 4 (1938). It suggests that legislation restricting ‘those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny’.
[17] Perry Education Association v Perry Local Educators Association, [1983] USSC 34; 460 US 37, 45 (1983).
[18] Ely, above n 14, 111 (footnotes omitted and emphasis added).
[19] R v Keegstra [1990] INSC 224; [1990] 3 SCR 697, 761 (Dickson CJ) (emphasis added) endorsing the contextual approach outlined by McLachlin J in the case of Rocket v Royal College of Dental Surgeons of Ontario [1990] 2 SCR 232. But for a criticism of this contextual approach see Jamie Cameron, ‘The Past, Present, and Future of Expressive Freedom under the Charter’ (1997) 35 Osgoode Hall Law Journal 1.
[20] Jeremy Kirk, ‘Constitutional Guarantees, Characterisation and the Concept of Proportionality’ [1997] MelbULawRw 1; (1997) 21 Melbourne University Law Review 1, 17 (footnotes omitted and emphasis added). But for an argument in favour of a more rule-based approach to the application of the implied freedom ‘of which strict scrutiny is one example’ see Adrienne Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ [1999] MelbULawRw 26; (1999) 23 Melbourne University Law Review 668, 702–8.
[21] R v Keegstra [1990] INSC 224; [1990] 3 SCR 697, 761 (Dickson CJ).
[22] Tony Blackshield has argued that, in the application of the implied freedom, the distinction made by some judges between laws that regulate content as opposed to the mode of a political communication is not significant. For those judges in practice use ‘substantially the same test’ as those who advocate a single test for constitutionality. ‘The Implied Freedom of Communication’ in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (1994) 253–4. But see Stone, ‘The Limits of Constitutional Text and Structure’ above n 20, 685–6 where the author argues that with the two-tiered approach ‘the scales [are] already weighted in favour of the freedom of political communication … [which] … reduce[s] the flexibility accorded by the proportionality test’.
[23] R v Keegstra [1990] INSC 224; [1990] 3 SCR 697, 761 (Dickson CJ).
[24] [1992] HCA 45; (1992) 177 CLR 106.
[25] Kirk, above n 20, 17.
[26] On this point, see below Part II(C)(2) and Part III(C)(2).
[27] [2004] HCA 41; (2004) 209 ALR 582, 647.
[28] Ibid.
[29] Ely, above n 14, 103.
[30] Stone, ‘The Limits of Constitutional Text and Structure’, above n 20, 678 citing Lange [1997] HCA 25; (1997) 189 CLR 520, 567 where the Court said that ‘[i]n this context, there is little difference between the test of “reasonably appropriate and adapted” and the test of proportionality’.
[31] [2004] HCA 39; (2004) 209 ALR 182, 240.
[32] [2004] HCA 41; (2004) 209 ALR 582, 648–50.
[33] Ibid 594.
[34] Ibid (Gleeson CJ). On this point, see below text accompanying n 116.
[35] [2004] HCA 39; (2004) 209 ALR 182, 207. That part of the test would now read: ‘is the law reasonably appropriate and adapted to serve a legitimate end [in a manner] which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?’ This rewording was endorsed by Kirby J: 233 and Gummow and Hayne JJ: 229.
[36] Ibid 205 (McHugh J), 230 (Gummow and Hayne JJ), 233 (Kirby J).
[37] It is worth noting here that McHugh J in Coleman made it clear that by inserting the phrase ‘in a manner’ into the second limb of the Lange test the Court requires that both the end and the means of an impugned law be compatible with constitutional government. However, in the same judgment at 207 he denies that this part of the Lange test involves the weighing or balancing of interests which is the essence of one component of the test for proportionality. If in fact McHugh J would reject the view that he applies something close to a proportionality test, then it is reasonable to ask how he would assess and apply the ‘in a manner’ part of the Lange test.
[38] See Kirk, above n 20, 2–5.
[39] Ibid 6.
[40] Ibid 7.
[41] Ibid 8–9 where Kirk outlines the ‘balancing’ process involved in third level proportionality.
[42] On this point, see above text accompanying n 31–3; Stone, ‘The Limits of Constitutional Text and Structure’, above n 20, 681–4 and Kirk, above n 20, 16–19.
[43] [1992] HCA 45; (1992) 177 CLR 106, 143; see also 235 (McHugh J).
[44] [1997] HCA 31; (1997) 189 CLR 579.
[45] Ibid 619; see also 614–5 (Toohey and Gummow JJ) and Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1, 128 (Gaudron J).
[46] Lange [1997] HCA 25; (1997) 189 CLR 520, 567.
[47] Kirk, above n 20, 63.
[48] Stone, ‘The Limits of Constitutional Text and Structure’, above n 20, 686.
[49] Kirk, above n 20, 5.
[50] For her important argument that the development of such a theory requires considerations external to the text and structure of the Constitution and is for this reason incompatible with the interpretive methodology outlined in Lange, see Stone, ‘The Limits of Constitutional Text and Structure’, above n 20, 696–9.
[51] [2004] HCA 39; (2004) 209 ALR 182, 207 (McHugh J).
[52] Ibid 192.
[53] [2004] HCA 41; (2004) 209 ALR 582, 586.
[54] Ibid 585.
[55] Ibid 590.
[56] Ibid 592. See also Coleman [2004] HCA 39; (2004) 209 ALR 182, 192 (Gleeson CJ).
[57] [2004] HCA 39; (2004) 209 ALR 182, 240 (Kirby J). See also 256 where Callinan J said he considered the second limb of the Lange test to be ‘somewhat inscrutable’ and that ‘an appreciation of what is reasonably appropriate and adapted to achieving a legitimate end may be very much a matter of opinion’. However, unlike Kirby J, he favours a more relaxed test, though continuing to express strong reservations as to the place of the implied freedom in Australian constitutional law.
[58] See Stone, ‘The Limits of Constitutional Text and Structure’, above n 20, 696 where Stone suggests that the High Court in Lange deliberately avoided articulating a theoretical basis for the implied freedom, although points out that strict adherence to the constitutional text and structure is itself a ‘philosophical commitment’: fn 166.
[59] There is, however, an argument that a judge ought to expressly articulate the why and let that inform the how. It would still allow the incremental development of the implied freedom but in a manner that is more likely to be coherent and principled. But see Adrienne Stone, ‘Freedom of Political Communication, the Constitution and the Common Law’ (1998) 26 Federal Law Review 219, 235, 238.
[60] The argument from truth is generally associated with the political theory of John Stuart Mill, On Liberty (People’s ed, 1913). It entered American constitutional jurisprudence through the famous dissent of Justice Holmes in Abrams v United States, [1919] USSC 206; 250 US 616, 630 (1919) (joined by Brandeis J dissenting): ‘[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.’
[61] The argument from self-government originates from the work of Alexander Meikeljohn, Political Freedom: The Constitutional Powers of the People (1965) and ‘The First Amendment is an Absolute’ (1961) Supreme Court Review 245.
[62] [1992] HCA 45; (1992) 177 CLR 106, 138–9, 145.
[63] Frederick Schauer, Free Speech: A Philosophical Inquiry (1982) 33. In relation to racial vilification laws, Sadurski considers that ‘a suspicion that politicians and legislators will overstate the degree of harm produced by a given activity’ is at the heart of why strict judicial scrutiny is appropriate: see above n 10, 178.
[64] See Dan Meagher, ‘What is “Political” Communication? The Rationale of the Implied Freedom of Political Communication’ [2004] MelbULawRw 14; (2004) 28 Melbourne University Law Review 438, 451; Part II(C).
[65] George Williams, Human Rights Under the Australian Constitution (1999) 230.
[66] It is worth noting here that Jeremy Waldron has developed a strong theoretical basis for the protection of rights through the ordinary democratic/legislative process. He argues ‘that our respect for such democratic rights is called seriously into question when proposals are made to shift decisions about the conception and revision of basic rights from the legislature to the courtroom, from the people and their admittedly imperfect representative institutions to a handful of men and women, supposedly of wisdom, learning, virtue and high principle’. ‘A Right-Based Critique of Constitutional Rights’ (1993) 13 Oxford Journal of Legal Studies 18, 20. My argument regarding the rationale of the implied freedom outlined in this part of the article similarly emphasises the centrality of the democratic process to the realisation of this particular constitutional right. But on my conception the judiciary still plays an important (though more supervisory) role in guaranteeing the democratic framework necessary to secure the sovereignty of the people and provide the conditions for its meaningful exercise. On the other hand, Waldron’s theory of constitutional rights highlights ‘the difficulty, complexity, and controversy attending the idea of rights’ (19) and the ongoing and inevitable disagreement amongst the citizenry as to their basic content. In these circumstances, he rejects the wisdom, democratic legitimacy and therefore moral authority of the courts to perform this constitutional role.
[67] On this point see John La Nauze, The Making of the Australian Constitution (1972) 227–32; Sir Harrison Moore, The Constitution of the Commonwealth of Australia (2nd ed, 1910) 78; Sir Owen Dixon, Jesting Pilate (2nd ed, 1997) 10 1–2; Sir Robert Menzies, Central Power in the Australian Commonwealth (1967) 54; Helen Irving, To Constitute a Nation (1997) 162–70; Mulholland [2004] HCA 41; (2004) 209 ALR 582, 586–8 (Gleeson CJ); Meagher, ‘What is “Political” Communication?’, above n 64; Part II(C)(1).
[68] See further Meagher, ‘What is “Political” Communication?’, above n 64; Part II(C)(2).
[69] On this point, see Part II(C)(3).
[70] Kirk, above n 20, 61. See also 55 and 61–3 where Kirk also notes the relevance of the limited institutional capacity of courts to determine issues of this nature to the level of judicial deference to the Parliament in the application of the implied freedom.
[71] Ibid 56.
[72] Ibid 62–3.
[73] There is considerable strength in the Kirk view that ‘[t]he court generally should be more deferential in the characterisation context than for constitutional guarantees, although an intermediate category of deference may be justified for implied guarantees’: ibid 63. As he notes, in the context of the implied freedom, its implied nature raises a democratic concern that does not exist for the characterisation of express legislative powers, so the complex social and political science evidence and issues that inevitably arise support an intermediate category of deference.
[74] See, eg, Tom Campbell, ‘Democracy, Human Rights and Positive Law’ [1994] SydLawRw 16; (1994) 16 Sydney Law Review 195, 201–4; Gerald Rosenberg and John Williams, ‘Do Not Go Gently into that Good Right: The First Amendment in the High Court of Australia’ (1997) Supreme Court Review 439, 458–64; Deborah Cass, ‘Through the Looking Glass: The High Court and the Right to Speech’ in Tom Campbell and Wojciech Sadurski (eds), Freedom of Communication (1994) 184–91. The failure to properly address the infringement question has also been a feature of those lower court decisions where racial vilification laws have been challenged, as my analysis below will demonstrate: see Part III(A).
[75] Mulholland [2004] HCA 41; (2004) 209 ALR 582, 583 (Gleeson CJ).
[76] Ibid 614 (McHugh J), 631–4 (Gummow and Hayne JJ), 673–4 (Callinan J), 678–9 (Heydon J).
[77] Ibid 614 (McHugh J) citing a passage in his judgment in Levy [1997] HCA 31; (1997) 189 CLR 579, 622. This passage was endorsed at 632–3 (Gummow and Hayne JJ) and 678–9 (Heydon J).
[78] Ibid.
[79] See Coleman [2004] HCA 39; (2004) 209 ALR 182, 206 (McHugh J), 229 (Gummow and Hayne JJ), 256 (Callinan J), 270 (Heydon J).
[80] Williams, above n 65, 168.
[81] [1997] HCA 25; (1997) 189 CLR 520, 567.
[82] A law of this kind can, of course, still pass constitutional muster if it meets the second limb of the Lange test.
[83] There is a parallel here with the argument made by Adrienne Stone that the High Court was incorrect in Lange to hold that, due to the negative nature of the implied freedom, it did not apply to the common law, except indirectly. She argues, persuasively in my view, that the direct application of the Constitution to the common law is perfectly consistent with the negative nature of the implied freedom: Adrienne Stone, ‘Rights, Personal Rights and Freedoms’ [2001] MelbULawRw 13; (2001) 25 Melbourne University Law Review 374, 400–17.
[84] (2004) 206 ALR 582, 678 (Heydon J), 673–4 (Callinan J).
[85] Ibid 678–9 (Heydon J).
[86] Indeed, Heydon J does not even consider what appears on a ballot paper to be political communication, only a communication ‘between the executive government and the electors’: ibid 679. No other judge in Mulholland came to this conclusion. On the contrary, Gleeson CJ, correctly in my view, said that ‘[i]t is a communication about a matter that is central to the competitive process involved in an election’: ibid 592. Kirby J agreed: ibid 651. McHugh J considered it political communication but only in the limited sense of the ballot paper being a record of a voter’s electoral preference: ibid 610–1.
[87] Ibid 591 (Gleeson CJ), 620 (Gummow and Hayne JJ).
[88] Ibid 591–2 (Gleeson CJ), 619 (Gummow and Hayne JJ).
[89] See ibid 650–1 where Kirby J, for this reason, rejects the analysis of McHugh, Gummow, Hayne, Callinan and Heydon JJ on this point.
[90] Kirk, above n 20, 6 (emphasis added).
[91] Ibid.
[92] Ibid.
[93] Ibid 5.
[94] [1990] INSC 224; [1990] 3 SCR 697.
[95] Criminal Code, RSC 1985, c C–46, ss 3 19(2), (3).
[96] [1990] INSC 224; [1990] 3 SCR 697, 852.
[97] As Kirk notes, above n 20, 8 ‘in an indirect fashion, necessity may presuppose some weighing of interests’.
[98] R v Keegstra [1990] INSC 224; [1990] 3 SCR 697, 854 (McLachlin J).
[99] Perry [1983] USSC 34; 460 US 37, 45 (1983).
[100] See above text accompanying n 7–17.
[101] See further below Part III(C)(2).
[102] This is the phrase used by Kirk to describe the balancing process undertaken at the third proportionality level: Kirk, above n 20, 8.
[103] Frank M Johnson Jr, ‘The Role of the Federal Courts in Institutional Litigation’ (1981) 32 Alabama Law Review 271, 274.
[104] Canadian Charter of Rights and Freedoms, s1, pt I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c–11.
[105] Keegstra [1990] INSC 224; [1990] 3 SCR 697, 852 (McLachlin J) (emphasis added).
[106] Ibid 853 citing an article published in the Globe and Mail (Toronto), March 1, 1985, 1.
[107] Ibid citing The Trial (1976) 203.
[108] Ibid.
[109] Ibid 854.
[110] Ibid citing A Alan Borovoy, When Freedoms Collide: The Case for our Civil Liberties (1988) 50.
[111] See Michael Stolleis, The Law under the Swastika (1998) 1–22.
[112] Keegstra [1990] INSC 224; [1990] 3 SCR 697, 861.
[113] Ibid citing Borovoy, above n 112, 221–5.
[114] Williams, above n 65, 230.
[115] See above Part II(C)(1) and for a more detailed treatment see Meagher, ‘What is “Political” Communication?’, above n 64.
[116] But see Sadurski, above n 10, where the author, though concerned primarily with the ‘philosophy of free speech’ (165), situates his argument for strict scrutiny within the context of racial vilification laws existing in Australia and in other European and North American jurisdictions. Importantly, he states that so long as a society has a right to free speech, whether constitutional or otherwise, ‘the underlying idea adopted … is that the [strict scrutiny] framework is of universal application’(168). However, this claim of ‘universality’ is problematic. For there are fundamental differences in the nature of the free speech ‘rights’ that exist, for example, in Australia, Canada and the United States. Each right has a unique text, history and position within its constitutional framework. This is central to and suggestive of the kind of judicial review that best fits that constitutional tradition. This point was made recently by Gleeson CJ in Mulholland [2004] HCA 41; (2004) 209 ALR 582, 594 where he noted that regarding the test for proportionality in the application of the implied freedom, it is ‘important to remember, and allow for the fact, that [the test] has been developed and applied in a significantly different constitutional context’. Sopinka J of the Canadian Supreme Court has also noted that Canadian ‘courts have tended to be more deferential to governmental restrictions on freedom of expression. This is due to a number of factors. Canada evolved in a tradition of parliamentary supremacy where legislative decisions are final. Moreover, s 1 of our Charter specifically permits the government to justify infringements’: Justice John Sopinka, ‘Should Speech that Causes Harm be Free’ in Jane Duncan (ed), Between Speech and Silence: Hate Speech, Pornography and the new South Africa (1996) 134–5. Australia too has this tradition of parliamentary supremacy and a qualified right to freedom of speech. But compare this with the review approach of some judges of the Constitutional Court of South Africa who urge rigorous scrutiny of laws that burden the right to freedom of expression especially ‘[having] regard to our recent past of thought control, censorship and enforced conformity to governmental theories’ – S v Mamabolo [2001] ZACC 17; 2001 (3) SA 409 (CC) [37] (Kriegler J) (Chaskalson P, Ackermann, Goldstone, Madala, Mokgoro, Ngcobo, Yacoob JJ, Madlanga AJ and Somyalo AJ concurring). This passage was cited with approval in the majority judgment of Langa DCJ in Islamic Unity Convention v Independent Broadcasting Authority and Others [2002] ZACC 3; 2002 (4) SA 294 (CC). So in this regard Sadurski’s argument and framework for strict scrutiny cannot be ‘universal’ save in the most limited, abstract sense. It is not appropriate in the Australian context. For as earlier argued, the two-tier approach is incompatible with the Lange test and the need for rigorous scrutiny of laws that significantly burden the implied freedom ought not to imply the strict scrutiny/overbreadth nexus that exists, most notably, in American First Amendment law; see above, Part II(A).
[117] On this point see Meagher, ‘What is “Political” Communication?’, above n 64, Part II(B)(2)(ii).
[118] See Coleman [2004] HCA 39; (2004) 209 ALR 182, 206 (McHugh J), 229 (Gummow and Hayne JJ), 256 (Callinan J), 270 (Heydon J).
[119] The decision of the Canadian Supreme Court in Keegstra is an example. So too is the decision of the Federal Court in Jones v Scully (2002) 120 FCR 243. For it is clearly possible to frame a law less restrictive of the implied freedom than ss 1 8C, 1 8D of the Racial Discrimination Act 1975 (Cth). This would be done if s 1 8C embodied the higher harm threshold (‘incite hatred towards, serious contempt for, or severe ridicule of’) present in the racial vilification laws of the State and Territory jurisdictions or if the free speech/public interest defences in s 1 8D were more narrowly drawn.
[120] See Irwin Toy v Quebec [1989] 1 SCR 927, 994.
[121] R v Oakes [1986] 1 SCR 103.
[122] Ibid 139 (Dickson CJ).
[123] On this point see Peter Hogg, Constitutional Law of Canada (2000) 750–2.
[124] Ibid 752.
[125] Ibid 753.
[126] R v Edwards Books [1986] 2 SCR 713, 781–2.
[128] Ibid 994. There is some evidence that in the Australian context the High Court is also willing to more strictly scrutinise laws whose subject matters relate to the operation of the judicial system (its independence, procedures, accessibility) and that a more adventurous streak emerges when interpreting the scope of the separation of judicial power effected by Chapter III of the Constitution. On judicial independence, see Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51; legal representation in criminal trials: Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292; separation of judicial power effected by Chapter III of the Constitution: Re: Wakim; Ex parte McNally (1999) 198 CLR 511; due process: Leeth v Commonwealth (1992) 174 CLR 455. For an excellent critique of this approach in comparison with the strict textualism of Lange and its implied freedom progeny, see Williams, above n 65, 240–3.
[129] Irwin Toy [1989] 1 SCR 927, 994.
[130] Ibid 999.
[131] In the Canadian context, Hogg has noted that regarding ‘hate propaganda laws’ (756, fn 184) the Canadian Supreme Court has accorded the Parliament a margin of appreciation for ‘it does not take a vivid imagination to devise a law that would be less intrusive of the … Charter right than the law that was enacted’: Hogg, above n 123, 756.
[132] ‘It … must be shown that [the criminal provision] is a measured and appropriate response to the phenomenon of hate propaganda, and that it does not overly circumscribe the … guarantee’: Keegstra [1990] INSC 224; [1990] 3 SCR 697, 771 (Dickson CJ) (emphasis added).
[133] Hogg, above n 123, 754.
[134] Coleman [2004] HCA 39; (2004) 209 ALR 182, 209 (McHugh J).
[135] Ibid 267 (Heydon J).
[136] Mulholland [2004] HCA 41; (2004) 209 ALR 582, 594.
[137] [2003] FCA 1433; (2004) 204 ALR 119. In that case, Finn J held that regulation 7(13) of the Public Service Regulations 1998 (Cth) was invalid for offending the implied freedom, stating at 14 1–2 that ‘[i]t is one thing [for the Commonwealth] to regulate the disclosure of particular information for legitimate reasons relating to that information and/or effects of its disclosure. It is another to adopt the catch-all approach of reg 7(13) which does not purport either to differentiate between species of information of the consequences of disclosure … [I]t unreasonably compromises the freedom by transforming the freedom into a dispensation. It is not an appropriate filtering device to protect the efficient workings of government in a way that is compatible with the freedom.’ (emphasis added).
[138] For example, in Keegstra [1990] INSC 224; [1990] 3 SCR 697, 724–5, Dickson CJ outlined the pre-legislative history of the impugned criminal provision. This included the formation of the Special Committee on Hate Propaganda in Canada and the publication of a unanimous report in 1966. Luke McNamara has documented in considerable detail the same for the racial vilification laws of the Commonwealth, NSW, WA and SA: see Regulating Racism, above n 3, 35–49, 12 1–30, 222–37 and 259–79, respectively.
[139] Irwin Toy [1989] 1 SCR 927, 999.
[140] Kirk, above n 20, 8.
[141] Hogg makes a similar, though stronger, point in relation to a law that is constitutionally intact upon reaching the balancing component of the Canadian Charter of Rights and Freedoms s 1 limitation analysis: ‘If a law is sufficiently important to justify overriding a Charter right (first step), and if the law is rationally connected to the objective (second step), and if the law impairs the Charter right no more than is necessary to accomplish the objective (third step), how could its effects then be judged to be too severe?’: Hogg, above n 123, 757.
[142] However, during World War I, the United States Supreme Court held that a law with a similar operation did not offend the First Amendment: Schenck v United States [1919] USSC 64; 249 US 47 (1919). The defendant printed and distributed to men who had been drafted for military service a circular that said conscription was ‘despotism in its worst form and a monstrous wrong against humanity in the interest of Wall Street’s chosen few’. It exhorted them to resist the conscription law and not ‘support an infamous conspiracy’.
[143] There has also been a challenge to the racial vilification provisions in the Racial Discrimination Act 1975 (Cth) in Toben v Jones [2003] FCAFC 137; (2003) 199 ALR 1 but this was on characterisation grounds rather than for infringing the implied freedom.
[144] [2000] NSWADT 77 (Unreported, Hennessy, Farmer, Jowett, 22 June 2000).
[145] [2001] QADT 20 (Unreported, President Walter Sofronoff, 8 November 2001).
[146] [2002] FCA 1080 (Unreported, Hely J, 2 September 2002).
[147] [2003] VCAT 1753 (Unreported, Higgins J, 21 October 2003).
[148] [2002] FCA 1080 (Unreported, Hely J, 2 September 2002).
[149] Ibid [235]–[240].
[150] Ibid [44].
[151] Lange [1997] HCA 25; (1997) 189 CLR 520, 560–1.
[152] See further Meagher, ‘What is “Political” Communication?’, above n 64, Part III(A).
[153] For the reason why, see below Part III(C)(1).
[154] On this point see Tony Blackshield and George Williams, Australian Constitutional Law and Theory (3rd ed, 2002) 1196.
[155] Jones v Scully [2002] FCA 1080 (Unreported, Hely J, 2 September 2002) [239]. See also International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969).
[156] Ibid [240].
[157] On this point, see above Part II(C)(1).
[158] Jones v Scully [2002] FCA 1080 (Unreported, Hely J, 2 September 2002) [238].
[159] The issue was not considered in Kazak v John Fairfax Publications [2000] NSWADT 77 (Unreported, Hennessy, Farmer, Jowett, 22 June 2000) and was given a mostly superficial treatment by the majority judges in Australian Capital Television [1992] HCA 45; (1992) 177 CLR 106. On this point regarding Australian Capital Television, see Campbell, above n 74, 201–4. The recent notable exception, however, was the case of Mulholland where there was detailed discussion of whether the impugned law burdened political communication; see above Part II(C)(1).
[160] Campbell, above n 74, 203.
[161] Islamic Council of Victoria v Catch the Fire Ministries [2003] VCAT 1753 (Unreported, Higgins J, 21 October 2003) found the Racial and Religious Tolerance Act 2001 (Vic) to be valid; Deen v Lamb [2001] QADT 20 (Unreported, President Walter Sofronoff, 8 November 2001) found s 124A of the Anti-Discrimination Act 1991 (Qld) to be valid; Jones v Scully found pt IIA of the Racial Discrimination Act 1975 (Cth) to be valid; Kazak v John Fairfax Publications [2000] NSWADT 77 (Unreported, Hennessy, Farmer, Jowett, 22 June 2000) found s 20C of the Anti-Discrimination Act 1977 (NSW) to be valid. On the constitutionality of Australian racial vilification laws see further Chesterman, above n 3, 238–43.
[162] See Jones v Scully [2002] FCA 1080 (Unreported, Hely J, 2 September 2002) [238]; Deen v Lamb [2001] QADT 20 (Unreported, President Walter Sofronoff, 8 November 2001) 2.
[163] My thanks are due to one of the anonymous referees for this point.
[164] Lange [1997] HCA 25; (1997) 189 CLR 520, 567.
[165] See Anti-Discrimination Act 1977 (NSW) s 20C(2); Wrongs Act 1936 (SA) s 37; Discrimination Act 1991 (ACT) s 66(2); Anti-Discrimination Act 1991 (Qld) s 124A(2); Racial and Religious Tolerance Act 2001 (Vic) s 11; Anti-Discrimination Act 1998 (Tas) s55.
[166] [1992] HCA 45; (1992) 177 CLR 106, 143 (Mason CJ), 169–76 (Deane and Toohey JJ), 234–5 (McHugh J).
[167] Ibid 174 (Deane and Toohey JJ).
[168] Keegstra [1990] INSC 224; [1990] 3 SCR 697.
[169] See below Part III(C).
[170] This was the law that incorporated the racial vilification provisions (pt IIA) into the Racial Discrimination Act 1975 (Cth).
[171] Sir Maurice Byers, ‘Free Speech a Certain Casualty of Race Law’, The Australian (Sydney) 21 November 1994, 11. Sir Maurice Byers also appeared as counsel in Australian Capital Television.
[172] On this point see Meagher, ‘What is “Political” Communication?’, above n 64, Part III(A). But see Chesterman, above n 3, 44–9.
[173] The most important case is Levy [1997] HCA 31; (1997) 189 CLR 579 where the High Court made clear that non-verbal conduct or symbolic speech ‘which is capable of communicating an idea about the government or politics of the Commonwealth’ counts as ‘political communication’: 595 (Brennan CJ). In addition, there have been two State Supreme Court decisions where political communication was held not to encompass discussions regarding the conduct of the judiciary: John Fairfax Publications Pty Ltd v Attorney-General (NSW) [2000] NSWCA 198; (2001) 181 ALR 694; Herald & Weekly Times & Bolt v Popovic [2003] VSCA 161 (Unreported, Winneke ACJ, Gillard and Warren AJJA, 21 November 2003). More recently, the High Court confirmed in Coleman and Mulholland that political communication included ‘[c]ommunications between the executive government and public servants and the people’: Mulholland [2004] HCA 41; (2004) 209 ALR 582, 610 (McHugh J) and see above n 86.
[174] It is worth noting, for precedential value, the broad conception of ‘political communication’ favoured in Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, that it ‘refers to all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about’: 124 (Mason CJ, Toohey and Gaudron JJ) quoting Eric Barendt, Freedom of Speech (1987) 152. Deane J said ‘political communication and discussion “extends to all political matters, including matters relating to other levels of government within the national system [of government] which exists under the Constitution”’: 164 (footnotes omitted). This may well be good law absent a clear statement to the contrary by the current, very differently constituted, High Court. It was this definitional breadth and elasticity that lay at the heart of Sir Maurice’s constitutional concerns.
[175] The two-tier approach has found favour most recently with Heydon J in Coleman [2004] HCA 39; (2004) 209 ALR 182, 266–7 and Gleeson CJ in Mulholland [2004] HCA 41; (2004) 209 ALR 582, 595.
[176] See above Part II(A).
[177] Adrienne Stone, eg, considers that the two-tier approach is likely to prevail: see Stone, ‘Lange, Levy and the Direction of the Freedom of Political Communication Under the Australian Constitution’, above n 7, 134. Whilst writing at a time when only NSW and Western Australian had racial vilification laws, Wojciech Sadurski considered it unlikely that these kinds of group vilification laws would survive strict scrutiny: Sadurski, above n 10, 190.
[178] It should, however, be noted that even though Gleeson CJ and Heydon J have recently endorsed the two-tier approach, both judges reject a conception and application of the Lange test that requires a law to employ means least restrictive of the implied freedom – see Coleman [2004] HCA 39; (2004) 209 ALR 182, 267 (Heydon J); Mulholland [2004] HCA 41; (2004) 209 ALR 582, 594–5 (Gleeson CJ), 680 (Heydon J).
[179] Keegstra [1990] INSC 224; [1990] 3 SCR 697, 860–1 (McLachlin J).
[180] Ibid 861.
[181] Ibid 852–62 (McLachlin J) (La Forest and Sopinka JJ concurring).
[182] The racial vilification laws of NSW, the ACT, SA, Qld and Vic also contain criminal provisions. It should, however, be noted that, unlike the Canadian criminal provision reviewed in Keegstra, these State and Territory laws only affix criminal liability where there is an aggravating factor (threat to the person or property) accompanying the act of racial vilification: see below text accompanying n 224–26.
[183] Lange [1997] HCA 25; (1997) 189 CLR 520, 567.
[184] The likely audience of this communication would include attendees at the political rally and those persons whom may reasonably be informed of it by the media or other communication conduits. The relevance of the communication to their federal voting choices may, of course, have either a positive or negative impact. For a more detailed treatment of this point see Meagher, ‘What is “Political” Communication?’, above n 64; Part III(D)(1).
[185] Racial Discrimination Act 1975 (Cth) s 1 8C.
[186] Racial Discrimination Act 1975 (Cth) s 18D: an instance of racial vilification will be lawful if done reasonably and in good faith for an academic, artistic, scientific or other public interest purpose.
[187] The following cases endorse this view – Commonwealth: Jones v Scully [2002] FCA 1080 (Unreported, Hely J, 2 September 2002)[159]; Warner v Kucera (Unreported, Commissioner Johnston, 10 November 2000) 2, 33–4; Toben v Jones [2003] FCAFC 137; (2003) 199 ALR 1, 13 (Carr J),19 (Kiefel J), 38 (Allsop J); NSW: Wagga Wagga Aboriginal Action Group v Eldridge (1995) EOC 92–70 1, 78,268 (Bartley, Farmer and Luger); Hellenic Council of NSW v Apoleski and Macedonian Youth Association (No 1) [1995] NSWEOT (Unreported, Biddulph, Alt, Mooney, 25 September 1997) 16; Hellenic Council of NSW v Apoleski (No 2) [1995] NSWEOT (Unreported, Biddulph, Alt, Mooney, 25 September 1997) 10. Qld: Deen v Lamb [2001] QADT 20 (Unreported, President Walter Sofronoff QC, 8 November 2001) 2. For a detailed discussion on this point see Dan Meagher, ‘So Far So Good ?: A Critical Evaluation of Racial Vilification Laws in Australia’ (2004) 32 Federal Law Review 225; Part III(C)(2)(i).
[188] For example, in Wagga Wagga Aboriginal Action Group v Eldridge (1995) EOC 92–701, 78,268 (Bartley, Farmer and Luger) the respondent at a local council meeting challenged the bona fides of Aboriginal land claims in the Wagga Wagga region and the reconciliation process. But he did so using vulgar and odious racial epithets. The NSW Equal Opportunity Tribunal held that the respondent’s actions were not done reasonably or in good faith pointing out that ‘proper procedures to oppose the claim were available to Mr Eldridge, and there was no need to act as he did’ (78,268).
[189] For example, in Jones v Scully [2002] FCA 1080 (Unreported, Hely J, 2 September 2002) Hely J found at [197]–[198] that the respondent acted neither reasonably or in good faith in distributing a leaflet that, amongst other things, suggested that Judiasm is worse than a Satanic Cult. On this point, see further Meagher ‘So Far So Good?’, above n 187; Part III(C).
[190] [2004] FCAFC 16; (2004) 204 ALR 761.
[191] [2004] FCAFC 16; (2004) 204 ALR 761, 786.
[192] Lange [1997] HCA 25; (1997) 189 CLR 520, 567.
[193] See Anti-Discrimination Act 1977 (NSW) s 20C(1); Racial Vilification Act 1996 (SA) s 4 and Wrongs Act 1936 (SA) s 37; Discrimination Act 1991 (ACT) s 66; Anti-Discrimination Act 1991 (Qld) s 124A ; Racial and Religious Tolerance Act 2001 (Vic) s 7(1); Anti-Discrimination Act 1998 (Tas) s 17(1). In addition, the laws of NSW, SA, the ACT, Qld and Vic make criminal conduct that breaches this harm threshold but has an aggravating factor, the threat to person and/or property: see below Part III(C)(3)(b) for an examination of these criminal provisions.
[194] See Anti-Discrimination Act 1977 (NSW) s 20C(2); Wrongs Act 1936 (SA) s 37; Discrimination Act 1991 (ACT) s 66(2); Anti-Discrimination Act 1991 (Qld) s 124A(2); Racial and Religious Tolerance Act 2001 (Vic) s 11; Anti-Discrimination Act 1998 (Tas) s 55. The only difference in the content of the defences is that the Victorian law, unlike its NSW, ACT, SA, Qld and Tasmanian counterparts, does not protect conduct that is absolutely privileged under defamation law. This is of no great practical import as it is unlikely that racist conduct that attracts absolute privilege could then be the subject of a complaint under the relevant racial vilification provisions in the absence of express legislative sanction.
[195] See Wagga Wagga Aboriginal Action Group v Eldridge (1995) EOC 92–701, 78,268 (Bartley, Farmer and Luger); Kazak v John Fairfax Publications [2000] NSWADT 77 (Unreported, Hennessy, Farmer, Jowett, 22 June 2000); Western Aboriginal Legal Service Limited v Jones [2000] NSWADT 102 (Unreported, Rees, Silva and Luger, 31 July 2000). See further McNamara, Regulating Racism, above n 3, 182–7.
[196] In Wagga Wagga Aboriginal Action Group v Eldridge (1995) EOC 92–701, 78,268 (Bartley, Farmer and Luger) a case with similar facts, it was held that the respondent had objectively incited hatred, serious contempt for, or serious ridicule of this group on grounds of their race: see above n 188.
[197] Lange [1997] HCA 25; (1997) 189 CLR 520, 567.
[198] The Western Australian racial vilification law contains no civil, only criminal, sanctions. On the significance of this point for the law’s validity, see below text accompanying n 221–3.
[199] On the background to the original Western Australian criminal provisions, see McNamara, Regulating Racism, above n 3, 222–5. The original provisions contained in the Criminal Code 1913 (WA) made it a crime to publish, distribute or display written or pictorial material that is threatening or abusive intending to create or promote hatred of any racial group (s 78) or to be in possession of such materials for the same purpose (s 77). It was also a crime to publish written or pictorial material intending to harass any racial group (s 80) or to be in possession of such materials for the same purpose (s 79). These criminal provisions were repealed by the Criminal Code Amendment (Racial Vilification) Act 2004 (WA) and replaced with the following eight offences: It is a crime to engage in conduct, otherwise than in private, by which a person intends to create, promote or increase animosity towards (defined in s 76 to mean hatred or serious contempt), or harassment of, a racial group, or a person as a member of a racial group (s 77) or whose conduct is likely to do so (s 78). It is a crime for any person to possess written or pictorial material that is threatening or abusive, intending the material to be published, distributed, or displayed by that person or another and either intends the publication, distribution or display of the material to create, promote or increase animosity towards, or harassment of, a racial group, or a person as a member of a racial group (s 79) or the publication, distribution or display of the material would be likely to do so (s 80). It is a crime for any person to engage in conduct, otherwise than in private, by which the person intends to harass a racial group, or a person as a member of a racial group (s 80A) or to engage in conduct that is likely to do so (s 80B). It is a crime for any person to possess written or pictorial material that is threatening or abusive, intending the material to be displayed by that person or another and the person either intends the display of the material to harass a racial group, or a person as a member of a racial group (s 80C) or the display of the material would be likely to do so (s 80D). It is, however, a defence to a charge under ss 78, 80, 80B and 80D to prove that the accused person engaged in conduct, or intended the material to be published, distributed or displayed, reasonably and in good faith: (a) in the performance, exhibition or distribution of an artistic work; (b) in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for any genuine academic, artistic, religious or scientific purpose or any purpose that is in the public interest; or (c) in making or publishing a fair and accurate report or analysis of any event or matter of public interest (s 80G).
[200] At the very least, the Jane Doe communication is likely to harass a racial group, or a person as a member of a racial group (s 80B) and the unreasonableness of the language used to make the communication would preclude the availability of a free speech/public interest defence under s 80G.
[201] Keegstra [1990] INSC 224; [1990] 3 SCR 697, 761 (Dickson CJ).
[202] This is different from the two-tier approach, as the effect or practical operation of the law on political communication is the central consideration for the purposes of judicial review, not whether it regulates its content or method of expression: see above Part II(A).
[203] See Anti-Discrimination Act 1977 (NSW) s 20D; Racial Vilification Act 1996 (SA) s 4; Wrongs Act 1936 (SA) s 37; Discrimination Act 1991 (ACT) s 67; Anti-Discrimination Act 1991 (Qld) s 131A; Racial and Religious Tolerance Act 2001 (Vic) s 24.
[204] Criminal Code 1913 (WA) ss 77, 79, 80A, 80C.
[205] Whilst there is no authority on point due to the fact that no person has been prosecuted under the criminal provisions of Australian racial vilification laws, a court will find that mens rea is an essential component of every criminal offence unless there is a clear parliamentary intention to the contrary: Sweet v Parsley [1969] UKHL 1; [1970] AC 132; He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523.
[206] Criminal Code 1913 (WA) ss 78, 80, 80B, 80D.
[207] Criminal Code 1913 (WA) s 80B.
[208] Criminal Code 1913 (WA) s 80G: see above n 199 where the defences are outlined.
[209] Lange [1997] HCA 25; (1997) 189 CLR 520, 567.
[210] Kirk, above n 20, 6.
[211] Human Rights and Equal Opportunity Act 1986 (Cth) s 46PO.
[212] Anti-Discrimination Act 1998 (Tas) ss 13, 78.
[213] See above text accompanying n 203.
[214] Racial Vilification Act 1996 (SA) s 4.
[215] Racial Vilification Act 1996 (SA) s 6.
[216] Wrongs Act 1936 (SA) s 37.
[217] See above text accompanying n 138.
[218] Hogg, above n 123, 754.
[219] On this point see Meagher, ‘So Far So Good ?’, above n 187, text accompanying n 3 1–3.
[220] On this point see McNamara, Regulating Racism, above n 3, 53–4.
[221] The higher harm threshold in the State and Territory laws means that more ‘political communication’ is lawful in these jurisdictions than under the Racial Discrimination Act 1975 (Cth). The amount of ‘political communication’ left unregulated by the State and Territory laws is the ‘gap’ between the two harm thresholds. In other words, that range of communications that may reasonably offend, insult, humiliate or intimidate on the grounds of race but do not amount to hatred, serious contempt or severe ridicule, will not attract civil liability.
[222] Keegstra [1990] INSC 224; [1990] 3 SCR 697, 852–855 and 860–862.
[223] See above text accompanying n 104–113.
[224] See above Part III(C)(2).
[225] Dickson CJ makes a similar point in the relation to the Canadian criminal provision in Keegstra [1990] INSC 224; [1990] 3 SCR 697, 773–6.
[226] Ibid 785.
[227] In Keegstra, Dickson CJ noted that, in relation to addressing racial vilification, ‘the government may legitimately employ a more restrictive measure, either alone or as part of a larger programme of action’: [1990] INSC 224; [1990] 3 SCR 697, 785 (emphasis added), though no reason independent of the justification offered for the combined (civil and criminal) legislative package was given for this conclusion.
[228] For example, the overarching federal (civil) coverage provided by the Racial Discrimination Act 1975 (Cth) was a reason for the shape of SA racial vilification laws: see McNamara, Regulating Racism, above n 3, 267. It cannot, however, have been a factor in WA choosing only criminal sanctions, because its law was enacted in 1990, before the passage of the Racial Hatred Act 1994 (Cth) which incorporated the civil racial vilification provisions in the Racial Discrimination Act 1975 (Cth).
[229] See above text accompanying n 141.