Sedgwick, Diana --- "The Implied Freedom of Political Communication: An Empty Promise?" [2003] UWSLawRw 2; (2003) 7(1) University of Western Sydney Law Review 35

THE IMPLIED FREEDOM OF POLITICAL

COMMUNICATION: AN EMPTY

PROMISE?

Diana Sedgwick[*]

Introduction

In the landmark decisions of Nationwide News Pty Ltd v Wills (Nationwide)[1] and Australian Capital Television Pty Ltd v Commonwealth (ACTV)[2] the High Court appeared to invent something akin to a Bill of Rights when they found that there is implicit in the Constitution a guarantee of freedom of communication in relation to political matters. This freedom was found embedded in our Constitution and was founded on our system of democratic and representative government. It was not an absolute freedom but one that had to compete with legitimate government objectives. This, of course, put the freedom at risk. If the freedom was to be properly protected an adequate standard of review was important.

In 1994 the High Court’s short-lived decisions of Theophanous v Herald & Weekly Times Ltd (Theophanous) [3] and Stephens v West Australian Newspapers Ltd (Stephens) [4] were handed down. I do not intend to discuss these two decisions in any detail as both were reached by narrow majorities, which made them tenuous. However, these cases represent the peak of judicial activism in recent years as they expanded the freedom to protect the maker of untrue and defamatory statements.

A new approach to the freedom was evident in Lange v Australian Broadcasting Corporation (Lange)[5] a case which was surprising in its unanimity, given the Court’s previous decisions. Although in previous cases, several different approaches to determining the validity of legislation which might infringe the right of freedom to communicate on political matters had been advanced; the Court in Lange did not attempt to reconcile these, instead, it stated that two questions had to be answered before the validity of a law could be determined. The first question is “does the law effectively burden freedom of communication about political and government matters either in its terms, operation or effect?”[6] If the law is effectively a burden then the second question the court must ask is “is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?” If the answer to the first question is ‘yes’ and the second question is ‘no’, the law is invalid.[7]

The case of Levy v The State of Victoria (Levy)[8] demonstrates that this unanimity was unfortunately short lived. Even though Levy was argued at the same time as Lange and handed down only three weeks later, differences of opinion as to the appropriate standard of review and, more importantly, how it should be applied, were immediately apparent. I contend that this was due to the concept of proportionality being introduced into the debate with little understanding of what the court meant by proportionality. As Kirk stated, the concept, as used in Australia, has been marked by ‘controversy and confusion’.[9]

The test established in Lange is known as the ‘reasonably appropriate and adapted to’ test. It was held to be synonymous with the ‘proportionality’ test[10], which had been favoured by some justices in earlier decisions. This is confusing given that the ‘reasonably appropriate and adapted to’ test is generally regarded as being a very minimal standard of review as opposed to the ‘proportionality test’ which is generally seen as more rigorous in its application.[11] For the purposes of this discussion it is significant that the court, in applying the test, made reference to the ACTV decision as an example of how the test should be applied. The impugned law in that case was found to be invalid because ‘there were other less drastic means by which the objectives of the law could be achieved’.[12] It would therefore seem that the court envisaged some genuine examination of the laws of Parliament rather than according total deference to our legislators.

Stone argues that despite the unanimity in the Lange decision we have not yet received from the High Court a clear indication as to the level of protection the implied freedom of political communication is to be given. That is how much protection is to be given to political communication.[13] Despite proportionality being accepted into Australian Constitutional law as the main test for determining infringement of constitutional guarantees, Kirk believes the doctrine remains little analysed and little understood in Australia.[14] He argues that a self -justifying conclusion will result where the proportionality test is not properly applied and the ‘reasonably appropriate and adapted to’ test is substituted under the guise that it equals the same thing as the proportionality test.[15] It is clear that a standard of review needs to be developed which gives more certainty as to how much protection political communication will receive.

In this article I will argue that the proportionality test could provide the certainty required if properly understood and properly applied. If all levels of proportionality are applied sequentially, clear and well articulated reasoned judgments should emerge which would give more certainty to subsequent courts. This would allow the potential of the implied freedom of political communication to be fully explored. Its potential is currently under exploited and risks being reduced to an empty promise.

I will begin by examining the concept of proportionality, as the European and Canadian courts understand it and then compare this with how the concept has been applied within Australia. This analysis will reveal how important the ‘margin of appreciation’ or level of deference accorded to Parliament is to proportionality as a standard of review. In the 1992 cases, particularly the ACTV decision, a narrow ‘margin of appreciation’ appears to have been accorded to Parliament and consequently a stricter standard of review was imposed. This must be compared with the relatively wide ‘margin of appreciation’ which appeared to be accorded to Parliament in the Levy decision. Finally, I will briefly examine three decisions subsequent to Levy which demonstrate the confusion that surrounds the implied freedom as subsequent courts have struggled to come to terms with the test for validity and its application.

How should the proportionality test be applied?

The test of proportionality is in effect a balancing exercise involving the reconciliation of principles or interest which conflict or are in tension.[16] In terms of its application to Australian Constitutional law and the implied freedom, an attempt should be made to find the appropriate balance between the implied right of freedom of political communication and the competing public interest.

Proportionality has been applied extensively in Public Law. It derives its roots from the European Court of Justice (ECJ) and the European Court of Human Rights.[17] A sophisticated model of the concept emerged in Germany.[18] According to this model three questions should be asked.

Kirk believes there are four reasons why three-level proportionality, while not the only possible test of legitimate restriction of constitutional guarantees, is the most useful.

Firstly, the three levels can all play a useful role in determining whether a law is legitimate.[27] Secondly, a specific framework is provided within which the validity of a law may be determined. Thus, clear and detailed reasons for decisions as to the validity of any restrictive measure should emerge.[28] Thirdly, the test is flexible.[29] Finally, the test is legitimate, as the Court of Human Rights, the ECJ, the Supreme Court of Canada and the Hong Kong Court of Appeal have adopted it.[30]

The Canadian Courts use this model as a means of determining whether a restriction on a freedom protected by the Canadian Charter of Rights and Freedoms[31] is permissible under s1 of the Charter. “That section provides that each right or freedom is subject to ‘such reasonable limits prescribed by law as can be reasonably justified in a free and democratic society’. In determining whether a law limiting a right is justified, Canadian courts consider first whether the law serves an objective^’ of sufficient importance to warrant overriding a constitutionally protected right or freedom. Then it considers whether that limit is ‘reasonably and demonstrably justified.’ At this point, a proportionality test is employed.”[32]

Third level proportionality, as used by the European and Canadian courts, weighs the means used to obtain Parliament’s objective against any effect these measures may have on citizens’ rights.[33] The third level of the test, as outlined above, is particularly important because it is possible for a law to pass the first two levels and fail the third.[34] That is, the law may serve a legitimate end and do it in the least restrictive manner possible but the restriction on political communication may be “so significant as to outweigh the competing public interest.”[35] Two points emerge here, which are important for the purposes of this discussion. Firstly, what weight should be attached to the freedom of political communication? Secondly, which public interests should be identified as being important enough to outweigh it? The weight attached to the right of freedom of political communication is particularly important, as it will affect the width of the margin of deference accorded to legislators.[36] A wide margin means greater deference will be shown and consequently a minimal standard of review imposed. A narrow margin means less deference is shown and stricter review of impugned legislation should follow.

Proportionality as applied in Australia

In Australia, our courts are wary about assessing the legitimacy of government objectives. Thus the necessity of government action becomes the issue as opposed to what impact the law may be having on the rights of the citizens. The caution exhibited by the Australian courts may be traced to the origins of our Constitution and the strength of our original ties with the British system of government. Under the British system, Parliament was given unlimited power because it was believed that the individual would not be harmed by this wide power.[37] However, government is no longer recipient of the sort of trust reposed in it by liberals such as Locke, who advocated ‘the classic liberal notion of limited government’, which formed the basis of parliamentary supremacy in England and consequently Australia.[38] The individual has increasingly become subjected to unnecessary constraint by government.[39] If individual rights are to regain some protection implied constitutional guarantees become increasingly important as they act as limits on parliamentary supremacy.[40] Having received approval by the judiciary the implied freedom of political communication also requires protection by the judiciary. As Kirk states, any democratic system of government which has an entrenched constitution must accept that the courts have a role to play in overriding laws which breach constitutional requirements.[41]

If proportionality is to be adopted by the judiciary as a standard of review to determine whether legislation is appropriate and proportional to achieve a legitimate end, it is important to recognise that the legislature should be accorded some margin of deference, because of the two critical issues of democratic legitimacy and the actual capability of courts to take a rigorous approach given the restrictions of judicial procedure.[42]

When the court applies the third level of inquiry it essentially addresses the same question as the legislature, which obviously raises the basic question of democratic legitimacy.[43] The doctrine of separation of powers allows law-making by elected members of Parliament. The judges’ role is only seen as being concerned with the application of the law as opposed to the making of it. However a pragmatic approach to this doctrine recognises that perfect democratic societies do not exist.[44] It is well recognised that legislators often only react to the loudest demands and thus areas which may need reform but are not likely to attract ‘political mileage’ are left untouched.[45] Consequently minorities, who do not otherwise have a voice in the political process, may have to rely on the judiciary to have their rights upheld through principles such as the implied right of free political communication.[46] This being so, the judiciary surely have a lot to contribute to the law-making process.[47] The doctrine of separation of powers obviously limits the role judges may play here but the community still accepts that judges may have a balancing role, particularly as far as constitutional guarantees are concerned.[48]

Restrictions relating to judicial procedure mean that complex Constitutional rights questions may not be able to be adequately dealt with unless ‘political, social and ethical’ arguments are put before the court.[49] This may not occur because ‘judicial procedure is often severely restricted in relation to the parties who may seek to be heard, the types of arguments which may be put and the evidence which may be presented.’[50] This appeared to be a point of concern for Justice Kirby in Levy as will be discussed later.[51]

Having established that judicial review requires caution and some level of deference is necessary, I now return to the important question regarding proportionality in Australia as an adequate standard of review - how much deference is necessary? The importance of the level of deference shown cannot be overstated, as it is often the key determinant of the result. Kirk argues that the amount of deference should be minimal in the case of implied guarantees that are tied closely to the text of the Constitution.[52] Accordingly, as the implied right of political communication has been found in the text of the Commonwealth Constitution; it follows that the amount of deference accorded to Parliament on this issue should, as Kirk insists, be minimal. There would seem to be no point to a constitutional guarantee, which does not impose some real limits on the legislative process.

If a constitutional guarantee is to have some protective force, as it surely should, the High Court must clearly indicate what level of protection the implied freedom of political communication should be given.[53] If it is not important enough to override all other public interests there must be some limit on what public interests may justify its restriction. This may require identification of what types of public interests are important enough to override constitutional guarantees.

Early decisions

ACTV and Nationwide were landmarks in the development of the role of proportionality in Australia. In these two cases the High Court appeared to remove the excesses of ‘parliamentary supremacy’ and ‘instil an ethic of efficiency, responsibility and accountability in government action’.[54] Although a variety of infringement tests were developed in these cases the role of proportionality as a standard of review is evident in many of the judgements.[55] Parliament’s objectives were accepted at the threshold level as being legitimate, but the means used to pursue those ends were found to be disproportionate at the balancing level.[56] When our courts begin utilising third level proportionality as they did in the aforementioned cases this equates to proportionality in the strict sense. Third level proportionality involves the court applying a balancing test to determine whether the measures used by government to achieve a legitimate objective are justified or whether less restrictive measures could achieve the same objective. As the court is essentially asking the same question the legislature would have addressed[57] , the level of deference accorded to Parliament’s view is very important. In these two early decisions the results appeared to be largely because of the narrow range of appreciation accorded to Parliament’s view.

The judgements of the Theophanous and Stephens decisions also seemed to utilise third level proportionality. In relation to the common law, the majority clearly applied a balancing test, finding that the balance drawn was inappropriate.”[58] Finally, in Lange, the court also seemed to engage in a balancing exercise.[59] As the protection of personal reputation was seen as an interest, which competed with the public interest of free political communication, the Court expanded the common law defence of qualified privilege to redress the balance, which existed in the law of defamation. Without this common law defence the law of defamation imposed too great a burden on the freedom of political communication.[60]

Although some writers were keen to announce after these decisions that proportionality had arrived as something of a saviour of the rights of people over parliamentary sovereignty, they have a right to feel disillusioned following the Levy decision.

As stated earlier, a self-justifying conclusion will result if the proportionality test is not properly applied but instead the ‘reasonably appropriate and adapted to’ test is substituted under the guise that it equals the same thing. In Levy this is apparent. It is my contention that a wide ‘margin of appreciation’ was accorded to Parliament in Levy and therefore many of the Justices simply appeared to make subjective judgements with very little explanation as to whether the stated objective of the impugned regulations, that is, the safety of ‘persons’, justified the legislative barrier imposed. In other words, there was little examination of whether the interest in public safety outweighed the restriction imposed on the implied right.

Levy v State of Victoria

At issue in Levy was the validity of Victorian regulations, which limited access to duck hunting areas during duck hunting season. Levy was an animal rights activist who claimed the regulations prevented him from protesting in a manner, which would draw maximum media attention to his cause. He challenged on the basis that regulations 5 and 6 were inconsistent with the implied freedom of political communication. Regulation 5 limited entry to a ‘permitted hunting area’[61] to holders of a valid duck hunting licence from between 5pm and 10am on the first weekend of the season and regulation 6 prevented a person, who did not hold such a licence, coming within 5 metres of a licensed hunter within the permitted hunting area during this time.[62]

The judgements in Levy make it clear that despite the unanimity of Lange we have no clear idea as to what test is to be used to determine constitutional validity. The court did not disregard the Lange test, indeed all of the Justices used the test, or something approximating it at some point in their judgment. There were, however, quite significant differences in their approaches.[63]

Justice Brennan

Justice Brennan accorded Parliament the widest margin of deference. Although he used the Lange test his approach demonstrated that he used it as a minimal standard of review. The objectives of the Hunting Season Regulations were accepted without question as being legitimate. Justice Brennan showed how wide a ‘margin of appreciation’ he was prepared to accord legislative action by placing an important limitation on the Lange test. He rejected the argument put by the plaintiff that protester safety could have been protected by alternative and less limiting means. In his view, ‘Under our Constitution, the courts do not assume the power to determine that some more limited restriction than that imposed by an impugned law could suffice to achieve a limited purpose.’[64] In his view, even if the regulations could be shown to be unnecessarily restrictive, ‘it could not be said that an (executive) opinion ... that safety was to be secured by keeping unlicensed persons out of the duck shooting area could not properly have been formed.’[65]

Justices Gaudron and Kirby

Both Gaudron and Kirby JJ appeared to engage themselves with the third level of the proportionality test by weighing up the interest in public safety against the restriction imposed on the implied right of political discussion. They both appeared to envisage that a higher standard of care should apply in some instances.

Justice Gaudron applied a test initially used by Deane and Toohey JJ in Nationwide and ACTV, ‘the test varies according to the purpose of the law in question. If the direct purpose of the law is to restrict political communication, it is valid only if it is necessary for the attainment of some overriding public purpose. If on the other hand, it has some other purpose, connected with a subject matter within power, and only incidentally restricts political communication, it is valid if it is reasonably appropriate and adapted to that other purpose.’[66] Thus, a two-tiered test emerges, varying according to purpose. A higher standard of review, which would appear to equate with third level proportionality, is envisaged for laws, which directly target political communication. This distinction is important to her analysis as she applied the stricter standard of review to Reg. 5 and the more deferential standard to Reg. 6. She found that the direct purpose of Reg. 5 ‘was to keep those who wished to protest against recreational duck shooting out of the permitted hunting areas for the opening weekend of the 1994 season and, thus, to restrict their freedom of movement and, perhaps, their freedom of political communication.’[67] The regulation survived the stricter test after Justice Gaudron engaged in a balancing exercise and found that the purpose of the legislation, keeping protesters out of the area, was not inconsistent with the greater public interest in public safety.[68]

Justice Kirby, while making reference to a test similar to that propounded by Justice Gaudron, did so only as one of several general propositions which he felt could be derived from the High Court’s authority concerning the approach to be taken when conflicts between a constitutional freedom and a law which imposes an impermissible burden arise.[69] The concept of proportionality was among the general propositions he referred to. In his view, it was ‘a useful concept’, adding ‘so long as it is realised that it describes a process of reasoning and does not provide a sure answer to its outcome.’[70] He went on to say that it was ‘less ungainly’ than the ‘appropriate and adapted to’ test and that it ‘springs from a richer jurisprudential source’.[71]

Justice Kirby believed the test stated in Lange was the test that should be applied. However, in applying the test Kirby J actually appeared, similar to Gaudron J, to adopt a two-tiered test. Unlike Gaudron J, however, he did not think Reg. 5 demanded the stricter test because he did not find that it ‘specifically targeted the idea or message’.[72]

Justice Kirby referred to a number of U.S. decisions to illustrate, amongst other things, that even in the U.S., which has an entrenched individual right of free expression, protection of public safety can be a limitation on the right. He then drew a parallel with Australia, finding it unlikely that Australian protesters would be given greater legal protection than protesters in the USA.[73] Kirby J considered it relevant that the impugned law had effect in an area that ‘was not a traditional, or designated, forum for communication’.[74] The implication here was that if the impugned law had involved a public forum, stricter scrutiny might have been imposed.

All of the above factors assisted Justice Kirby in determining that the interest in public safety outweighed the level of restriction on political discussion. It would seem, therefore, that Kirby J engaged in some sort of balancing exercise here.

An interesting issue was raised by the plaintiff and referred to in Kirby J’s judgement. The plaintiff argued that the demurrer was the wrong remedy because in an evaluative exercise such as the Court was engaging in here, evidence would need to be considered. Although Kirby J declined to agree with him on this issue, he did express an opinion that in some cases when the Court is engaging in judicial review of legislation it is appropriate ‘to hear from a broader range of interveners and amici curiae ...’[75] He was of the view that ‘[s]uch interests may occasionally have perspectives which help the Court to see a problem in a context larger than that which the parties are willing or able to offer.’[76] He concluded by stating that in constitutional cases the Court should adapt its procedures ‘to ensure that its eventual opinions on contested legal questions are informed by relevant submissions and enlivened by appropriate materials.’[77] Kirby’s J’s conclusion is interesting in light of my former comments regarding the Court’s ability to adequately deal with Constitutional rights questions where adequate argument cannot be made to the Court because of procedural matters. Kirby J seemed to recognise this as an issue needing resolution. Perhaps resolution of the issue may persuade him to accord a narrower ‘margin of appreciation’ to our legislators.

Justice Dawson

Justice Dawson stated that he had no objection to the Lange test as long as the final question is always kept in mind: ‘...whether the law is compatible with the elections the Constitution requires’.[78] The proposition he then used to test the impugned law was whether the freedom of political communication allows ‘reasonable regulation in the interests of an ordered society’.[79] On this test the regulations were valid because they were concerned with maintaining order in a situation where conflict could arise between the duck shooters and the protesters. Not content with applying this test Dawson J also applied the Lange test. He found the regulation to be ‘appropriate and adapted’, even though it was a burden on communication.[80] In applying both tests, it is evident that no real inquiry was made into whether the interest in public safety outweighed the restrictions imposed and consequently the conclusions drawn by Dawson J appear subjective and self-justifying.

Justices Toohey and Gummow

Although these two Justices referred to the Lange test as being the test for invalidity, some evidence of a two-tiered test was also present in their judgement. In comparing the impugned regulation with the impugned legislation in ACTV, they found that the regulation did not directly curtail the implied freedom in any significant respect. The implication seemed to be that if it had done so, as had occurred in ACTV, they may have decided differently. It also seemed significant to them that there was no general prohibition of the freedom, seemingly because of the limited time for which it was imposed.[81] They did not discuss the fact that even though the ban was for a limited time, it was a complete ban. They also did not endeavour to turn their minds to whether any alternative, less restrictive, means were available to achieve the same objective. They therefore failed to consider the role of proportionality in any real sense.

Justice McHugh

Justice McHugh applied the Lange test without questioning it and found that the regulations imposed a burden on the implied freedom because they prevented the protesters from imparting their message via a medium judged to have most impact on the public.[82] In deciding that the regulations’ objectives were legitimate, he considered the likely confrontations between the protesters and the duck shooters. Justice McHugh found that regulation 6 was ‘reasonably appropriate and adapted to’ achieving public safety as in his mind keeping a 5-metre distance between the protesters and the duck shooters would promote safety in the area.[83]

However the validity of regulation 5 was not as clear to Justice McHugh. The protesters had argued that a blanket ban was unnecessary and it appeared of concern to McHugh J that they did not identify any alternative measures which could have been used to achieve the same objective.[84] This implied that he may have been persuaded to enter into some sort of balancing exercise as to whether less extreme measures may have achieved the government’s objective of public safety if only the protesters had identified a less restrictive means of keeping them safe from the duck shooters. Unfortunately, McHugh J did nothing further to develop this line of thinking which may have enabled him, if he had genuinely engaged in the balancing exercise required at the third level of proportionality, to review the impugned legislation in a reasoned manner. In the end, McHugh J engaged in little real scrutiny of the impugned regulations. In fact a wide ‘margin of appreciation’ was obviously accorded to the legislature as is evident in his conclusion that in any event the Executive were entitled to the view that ‘no measure could reasonably be taken to prevent angry and probably violent confrontations between them (the protesters) and the shooters’.[85]

Summary

Only Gaudron and Kirby JJ seemed to engage themselves in any real analysis of the impugned regulations in the Levy case and their decisions give most heart to the debate on the use of proportionality as a standard of review.

Dawson, Toohey, Gummow and McHugh JJ appeared to be looking strictly at the purpose of the legislation which suggested that they confused proportionality with testing purpose only.

Some of these differences may arise out of a lack of understanding as to the differences that arise between using the ‘reasonably appropriate’ test and a test that relies on proportionality as a standard of review. The fact that the Lange test uses the word ‘reasonably’ indicates a degree of deference. As discussed earlier this deference can be equated to the ‘margin of appreciation’ the court is prepared to accord Parliament. It is quite evident in the majority of judgements that a wide ‘margin of appreciation’ has been accorded to Parliament. This is to be contrasted with the narrow ‘margin of appreciation’ accorded to Parliament in the ACTV decision where a considerably stricter review took place. Possibly this is because the Justices involved in the 1992 decisions were more avid in their defence of the fledgling right they had created, or perhaps the strong debate over judicial law-making which arose out of the ’92 and ’94 cases in particular has had a direct impact on the way in which the courts are now reviewing impugned legislation. Whatever the reason, the lack of coherency present has led to confusion as the following discussion demonstrates.

Decisions subsequent to Lange and Levy

Rann v Olsen[86]

Rann and Olsen were both members of the South Australian Parliament. Defamation proceedings arose out of allegations made by Olsen that Rann had lied in giving evidence to a Federal Parliamentary Committee. Accordingly the case involved questions about the construction and validity of Commonwealth legislation, the Parliamentary Privileges Act 1987.

The five justices involved in this case examined s16 (3) of the Parliamentary Privileges Act 1987 (Cth) which reads in part:

In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of. ...



(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

In essence, s16 (3) prohibits completely any discussion of parliamentary proceedings in any court or tribunal. This had the effect of preventing Mr Olsen, who had made public accusations that Mr Rann had lied in a parliamentary proceeding, from trying to prove his accusation was true as a defence to the defamation proceedings Mr Rann had instituted against him.

Despite the obvious and very heavy burden s16 (3) imposed on the freedom of communication the court did not find the section invalid. The judgement of Doyle CJ, with which the other four justices essentially agreed, illuminates the confusion that has arisen since Lange and Levy. He purported to use the ‘reasonably appropriate and adapted to’ test but during his examination of whether s16 (3) of the Parliamentary Privileges Act effectively burdened the freedom of communication he stated ‘it is not for the Court to substitute its judgement for that of Parliament as to the best and most appropriate means of achieving the legitimate end.’[87] This statement appears to be in direct conflict with Lange which specifically states that the impugned law should be examined to determine whether ‘there were less drastic means by which the objectives of the law could be achieved.’[88]

Doyle CJ demonstrated quite openly, in coming to his conclusion that s16 (3) was ‘reasonable and appropriate’, that he believed a very wide margin of appreciation should be accorded to Parliament. He stated, “I am conscious of the need to pay appropriate deference to the judgement of Parliament as to the extent it should go in protecting its powers, privileges and immunities”.[89] Further, even though he found that ‘it was not necessary to go so far’[90] as Parliament had done to gain this protection, he still concluded quite subjectively that the Court should be able to make its own decisions[91] and consequently found the impugned law to be valid.

This case in particular raises the question of how excessive a restriction upon the implied right of political communication must be before the court has the wisdom to find it invalid. Despite the severe restriction imposed by s16 (3) the weight accorded to Parliament’s interest was so significant it completely overrode the protected interest.

Coleman v Sellars [92]

In this case Pat Coleman, a young law student, was appealing against a conviction in the Magistrates Court of taking part in a public address in the Flinders Pedestrian Mall, Townsville, without a permit in writing, contrary to By-law 8 of the Townsville City Council By-laws.[93]

Importantly, although the by-law did not appear to provide an absolute prohibition in respect of taking part in public demonstrations and addresses, the Council did have an unqualified right to refuse the granting of a permit.[94]

Coleman had initially appealed unsuccessfully to the District Court from where he was given leave to appeal to the Court of Appeal on the single issue of whether the Council by-law was invalid in light of the constitutionally guaranteed freedom of communication.

Pincus JA and Jones J were in the majority. The focus of their judgements was on the application of the second part of the Lange test, was the by-law ‘reasonably appropriate and adapted?’

Although both appear to apply the Lange test, their judgements indicate little objective reasoning was used, instead a subjective decision appeared to have been made that the by-law was legitimate. Pincus J appeared to have been influenced by Rann which he cited as an example of how careful the court should be when striking out laws made by Parliament.[95] Despite finding that the by-law was potentially an absolute prohibition on taking part in public addresses in malls, [96] he did not find it invalid. Jones J also did not offer any reasons as to why the by-law was valid. In addressing the question, a minor criticism was made that permits could be refused or withdrawn on an arbitrary basis.[97] However, Jones J appeared to feel that judicial review would resolve that issue if it arose.[98] Concluding that the by-law did not infringe the implied constitutional freedom, Jones J took the view that as there was plenty of opportunity outside the pedestrian malls, to communicate on political matters, the restrictions were reasonable with regard to the pedestrian malls.[99] Little by way of qualitative analysis was offered and no real assessment was made as to whether less restrictive means could have been adopted to achieve the legitimate purpose of the legislation.

Muir J, in dissent, weighed the Council’s objective of regulating the mall against the cost imposed on the constitutional freedom and found the restrictions were ‘more than is proportionate’.[100] In coming to this decision he appeared to utilise some of the language of proportionality and engage in some sort of balancing exercise.

The majority appeared to adopt an extremely wide margin of appreciation. The by-laws in question were never afforded any real scrutiny. The Council had an unqualified right to refuse the permit or to impose any conditions they saw fit upon it. They could also take as long as they wished to determine whether or not they would grant a permit, in a situation where time would be of the essence in many instances. Importantly, although judicial review was available as a remedy in theory, the factors of time and absence of any prescribed criteria would mitigate against it being of any real use. Thus, the fact that the restrictions placed on a person’s ability to demonstrate in the mall were ‘such as to make the relevant freedom of communication illusory’[101] , were ignored.

Coleman v P[102]

This case again involved Pat Coleman, the law student involved in the previous case. Again he was in the Townsville mall, this time distributing leaflets containing insulting passages and identifying local police as being corrupt. He was arrested and convicted of offences against ss7, 7A of the Vagrants, Gaming and Other Ofences Act 1931 (Qld). On appeal the issue was the question of whether s7 (1) (d) and/or s7A (1) (c) of the Vagrants, Gaming and Other Ofences Act 1931 (Qld), were invalid because of inconsistency with the implied constitutional protection of freedom of communication.

Section 7(1) (d) provides that:

Any person who, in a public place or so near to a public place that any person who might be therein, and whether any person is therein or not, could view or hear- ...



(d) uses any threatening, abusive or insulting words etc...



Shall be liable to a penalty of $100 or to imprisonment for 6 months.

A definition of ‘public place’ is given which in addition to listing numerous places which are included also includes ‘a place declared, by regulation, to be a public place’.[103]

Section 7A created numerous offences related to printing or publishing threatening, abusive or insulting words. Most relevantly s7A (1) (a) provided that any person:

who by words, capable of being read either by sight or touch prints any threatening, abusive or insulting words of or concerning any person by which the reputation of that person is likely to be injured, or which the person is likely to be injured in the person’s profession or trade, or by which other persons are likely to be induced to shun, or avoid, or ridicule, or despise the person...

The prohibition was absolute and none of the usual defences associated with defamation such as justification or public interest were available.

It was conceded that both laws were a burden on the implied right and so the question was then whether the second limb of the Lange test could be satisfied, that is, was the impugned law ‘reasonably appropriate and adapted to achieving a legitimate end?’ Significantly, in applying this test, reference was again made to the observation made by Doyle CJ in Rann that the Court did not have to decide whether there were ‘other and better ways of achieving the legitimate end”[104] At the risk of repeating myself, in light of Lange, this would seem wrong.[105]

All three justices found s7A invalid to the extent that it applied to ‘abusive or insulting words’. This appeared to be largely because the definition of ‘insulting’ cast a very wide net and because the legislation looked as if it was a measure designed to prevent defamation without supplying any of the customary defences available to a defendant in a defamation action. In coming to this decision third level proportionality appeared to emerge. The public benefit of maintaining law and order was seen to be a legitimate purpose of the legislation but when the restrictions imposed were examined they were seen as ‘overkill’.[106] In other words, the significance of the detriment caused by the restrictions was seen to outweigh the importance of the public interest being affected.

Unfortunately, in finding s7 (1) (a) valid the majority did not examine the restrictions imposed with anywhere near the same degree of intensity. Despite the fact that a person would only have to say an insulting word to a person to infringe the relevant section and despite the fact that the word ‘insulting’ had been found by the Court to have a very wide meaning, the Court did not find the law invalid. The reasoning offered by the majority in relation to s7 (1) (a) was limited and thus difficult to follow. In contrast to the reasoning applied to s7 (A) it seemed to progress no further than the first level of proportionality. That is, the law was found necessary to prevent public disturbance of the peace and no further inquiry was made.

It is difficult to understand how the majority were able to find that a law which stifled robust political comment in the written form was invalid and yet a very similar law which applied to the spoken word could be found to be valid. The contrast between the rigorous investigation s7 (A) was subjected to and the brief and perfunctory attention paid to s7 (1) (a) was startling. It almost appeared that once a decision had been made that the law was valid no further explanation was necessary.[107]

Conclusion

The confusion regarding the correct test to be applied and the manner of its application, which was first evident in Levy, has been compounded by subsequent decisions which demonstrate quite clearly how the level of deference accorded to Parliament can determine the result if no clear standard of review is applied. It is my opinion that the wide margin of appreciation the courts have accorded Parliament since the 1992 decisions, where a relatively narrow margin of appreciation was employed, has resulted in a very loose standard of review being applied. The evaluation by the courts as to why impugned legislation should be found not to have infringed the implied right to freedom of political communication is often so cursory as to be seen as mere self-justification. By way of stark contrast however, the level of scrutiny intensified sharply and evidence of proportionality being utilised in its real sense emerged, when legislation was found to have infringed the implied freedom. This was particularly evident in Coleman v P.[108] This raises the question as to why our legislators should be accorded the respect of being provided with real and qualitative analysis of legislation proven to be invalid, while the individual, who has taken action on the basis that they believe their constitutional right has been infringed, is often treated with disrespect. That is, the restrictive impact the impugned legislation may be having on the individual’s right to speak freely on political matters, is often discounted or not even examined. The courts generally see government objectives as ‘necessary’ and no effort is made to determine whether alternative and less restrictive measures may well have achieved the same objectives. If the Court determines that particular legislation does not infringe the implied right to freedom of political communication it should be clear why this is so. Self-justifying conclusions provide little reassurance to the public that their rights are being fully protected.

Given the implied right of freedom of political communication is tied very closely to our Constitution, there is a real need for the High Court, the ‘independent arbiter’[109] of our Constitution, to determine what weight the implied right of freedom of political communication really has and what public interests may legitimately compete with it. Then the lower courts could begin to properly utilise proportionality as a standard of review which would provide ‘an efficient framework for judging restrictions and specifying objections.’[110] On 15 November, 2002, Coleman was granted special leave to appeal to the High Court which presents a welcome opportunity for the Court to revisit the Lange test and reconsider its application.

Third level proportionality, in particular, should be employed to weigh up legitimate public interests against the restriction imposed on the implied right so that a genuine assessment may be made as to whether a less restrictive means could have been adopted to achieve the legitimate purpose of the legislation. Until this occurs and we have a standard of review that provides some certainty, we will continue to find that our implied right to freedom of political communication is a hollow right and an empty promise.

[*] LLB (UWA) Dip.Teach. Lecturer in Law.

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

[2] [1992] HCA 45; (1992) 177 CLR 106.

[3] [1994] HCA 46; (1994) 182 CLR 104.

[4] [1994] HCA 45; (1994) 182 CLR 211.

[5] [1997] HCA 25; (1997) 189 CLR 520.

[6] Ibid 561-562.

[7] Ibid 562.

[8] [1997] HCA 31; (1997) 189 CLR 579.

[9] J Kirk, ‘Constitutional Guarantees, Characterisation and the Concept of Proportionality’ [1997] MelbULawRw 1; (1997) 21 Melbourne University Law Review 1, 2.

[10] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 562.

[11] A Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ (1999) (23) (3) Melbourne University Law Review 668, 676-7.

[12] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 568.

[13] Stone, n11, 669.

[14] Kirk, n9, 2.

[15] Ibid 63.

[16] Kirk, n9, 9.

[17] Kirk, n9, 2.

[18] Ibid 4.

[19] Ibid 5.

[20] Ibid 6.

[21] Ibid 6.

[22] Ibid 7.

[23] Ibid 7-8.

[24] Ibid 8.

[25] Ibid.

[26] Ibid 9.

[27] Ibid 9.

[28] Ibid.

[29] Ibid 10.

[30] Ibid.

[31] Part I of the Constitution Act 1982, Schedule B to the Canada Act 1982 (UK) s11.

[32] Stone, n11, 677-678.

[33] Ibid 678.

[34] Kirk, n9, 9.

[35] Stone, n11, 683.

[36] The margin of deference is sometimes also referred to as the margin of appreciation. It allows the courts an element of discretion when interpreting legislation.

[37] B Fitzgerald, ‘Proportionality and Australian Constitutionalism’ [1993] UTasLawRw 16; (1993) 12 (2) University of Tasmania Law Review, 263, 264.

[38] Ibid 263.

[39] Ibid 265.

[40] Ibid 266.

[41] Kirk, n9, 55.

[42] Ibid.

[43] Kirk, n9, 55.

[44] M McHugh, (The Hon. J.) ‘The Law-making function of the Judicial Process – Part II’ (1988) 62 (2) The Australian Law Journal 116, 123.

[45] Ibid.

[46] Ibid.

[47] Ibid.

[48] Kirk, n9, 55.

[49] Kirk, n9, 55.

[50] Ibid 56.

[51] Levy v The State of Victoria [1997] HCA 31; (1997) 189 CLR 579, 643-644.

[52] Kirk, n9, 61.

[53] Ibid 49.

[54] Fitzgerald, n37, 269.

[55] See, e.g., Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106, 144-7 per Mason CJ, 174-5 per Deane & Toohey JJ, 218-21 per Gaudron J, 238-9 per McHugh J.

[56] Fitzgerald, n 37, 274.

[57] Kirk, n9, 54.

[58] Kirk, n9, 18.

[59] Stone, n11, 683.

[60] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 568-570.

[61] Levy v The State of Victoria [1997] HCA 31; (1997) 189 CLR 579, 605 per Dawson J.

[62] Ibid.

[63] Levy v The State of Victoria [1997] HCA 31; (1997) 189 CLR 579, 614-615 per Toohey and Gummow JJ, 619 per Gaudron J, 647 per Kirby J.

[64] Ibid, 598.

[65] Ibid 599.

[66] Ibid 619.

[67] Ibid 620.

[68] Ibid.

[69] Ibid 645.

[70] Ibid 646.

[71] Ibid 646.

[72] Ibid 647.

[73] Ibid 641.

[74] Ibid 642.

[75] Ibid 651.

[76] Ibid.

[77] Ibid 651-652.

[78] Ibid 608.

[79] Ibid.

[80] Ibid 609.

[81] Ibid 614.

[82] Ibid 625

[83] Ibid 627.

[84] Ibid.

[85] Ibid 627.

[86] Rann v Olsen [2000] SASC 83; (2000) 172 ALR 395

[87] Ibid 428 (Doyle CJ)

[88] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 568

[89] Rann v Olsen [2000] SASC 83; (2000) 172 ALR 395, 428 per Doyle CJ.

[90] Ibid 429.

[91] Ibid.

[92] Coleman v Sellars [2000] QCA 465; (2000) 181 ALR 120.

[93] By-law 8(2) (e).

[94] By-law 8(4).

[95] Coleman v Sellars [2000] QCA 465; (2000) 181 ALR 120, 123

[96] Ibid 122.

[97] Ibid 132.

[98] Ibid.

[99] Ibid 133.

[100] Ibid 130.

[101] Ibid 127 per Muir J.

[102] Coleman v P [2001] QCA 539; (2001) 189 ALR 341.

[103] s2 of the Act.

[104] Coleman v P [2001] QCA 539; (2001) 189 ALR 341, 358 per Thomas JA.

[105] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 568.

[106] Coleman v P [2001] QCA 539; (2001) 189 ALR 341,358 per Thomas JA.

[107] Coleman was granted special leave to appeal to the High Court on 15 November, 2002

[108] [2001] QCA 539; (2001) 189 ALR 341

[109] M Coper, ‘The High Court and Free Speech: Visions of Democracy or Delusions of Grandeur?’ [1994] SydLawRw 15; (1994) 16 Sydney Law Review 185, 191.

[110] Kirk, n9, 63.